Thursday, September 30, 2010
ABA Journal seeking nominations for best law blogs
Every year, the ABA publishes a list of the best 100 law blogs and they recently began to seek nominations for this year's list. Go here to nominate all your favorites.
What is the proper level of sanction?
I have often commented on inconsistent sanctions for similar conduct. Here is a link to a comment on this subject by Carolyn Elefant, a solo practitioner who runs a very good blog called "MyShingle". Her post is called "Solo Suspended for Trust Error But Biglaw Unscathed for Botching Capital Appeal" and it is available here. She seems to favor flexibility in sanctioning and that sanctions should be based on case by case evaluation of the circumstances. She discusses a specific case where she believes the authorities should have been lenient even though the conduct involved violations of rules related to handling client's money.
Wednesday, September 29, 2010
Whistleblower protections and in-house counsel
Just a couple of days ago, my class covered issues related to "in-house counsel" including the Balla v Gambro decision denying lawyers the right to sue for wrongful discharge when they are fired for acting according to professional conduct obligations. Today I saw in my print version of the National Law Journal a new article on that very subject. Here is a link to it.
Tuesday, September 28, 2010
Mandatory pro-bono in Mississippi
Three days ago I noted that the Mississippi Supreme Court is considering requiring attorneys to perform 20 hours of pro bono service. Today, Law.com is reporting on the story here. Law.com's report adds that under the proposed plan attorneys who do not perform the mandated hours would have to pay a $500 fee. It is not clear whether the fee is to be paid as a form of punishment or as a way to comply with the obligation by providing funding for legal services.
Monday, September 27, 2010
What's with all the lawyer shows on tv?!
I don't watch a lot of TV, but I try to check out shows about lawyers just in case they raise issues I can discuss in class. There have always been shows about lawyers, although many of them were (or are) disguised "detective" stories - more interested in the drama of figuring out "who did it" than on the legal issues that surround the case. But I don't remember so many lawyer shows running at the same time.
Right now there are four new lawyer shows on - three of them at the same time on Wednesday nights. At some point there were promos going around about a fifth one, but I suspect that one may have been dropped since I have not seen or heard anything about it since it was announced back in the summer.
In any case, the new lineup includes Outlaw, about which I have written before and which every report I have read agrees is crap, The Defenders, The Whole Truth and Law and Order LA. These last three run against each other on Wednesday nights.
Here is a quick review of the Defenders by one of the law blogs I read regularly. In a nutshell, this appears to be just another disguised "detective" show (with a comic tone to it, I guess) in which lawyers do the detecting in order to help their clients.
Last Wednesday I opted to watch The Whole Truth instead and here is my quick review: The show tries to be more serious than the others. It follows the work of a district attorney and a defendant's lawyer as they prepare for and try a criminal case. The editing is done so that you get to see the work of each side separately which is interesting, although perhaps not the best narrative model. Given time constraints, the pace of the show is a bit too fast or frantic and the defendant's lawyer (and his firm) follow a familiar Hollywood mold.
What the producers are trying to sell as "different" about this show is that the lawyers never really know "the truth." Now, this is realistic, but unfortunately, the show then feels the need to fill the void for the audience by "solving" the uncertainty at the end. In other words, the audience will know in the end what really happened, even if the characters in the show do not. That's too bad. I think the show would be better if it left everyone with that realistic uncertainty of not really knowing, but I guess I understand this would not make for a popular choice among TV producers who want a happy audience....
Right now there are four new lawyer shows on - three of them at the same time on Wednesday nights. At some point there were promos going around about a fifth one, but I suspect that one may have been dropped since I have not seen or heard anything about it since it was announced back in the summer.
In any case, the new lineup includes Outlaw, about which I have written before and which every report I have read agrees is crap, The Defenders, The Whole Truth and Law and Order LA. These last three run against each other on Wednesday nights.
Here is a quick review of the Defenders by one of the law blogs I read regularly. In a nutshell, this appears to be just another disguised "detective" show (with a comic tone to it, I guess) in which lawyers do the detecting in order to help their clients.
Last Wednesday I opted to watch The Whole Truth instead and here is my quick review: The show tries to be more serious than the others. It follows the work of a district attorney and a defendant's lawyer as they prepare for and try a criminal case. The editing is done so that you get to see the work of each side separately which is interesting, although perhaps not the best narrative model. Given time constraints, the pace of the show is a bit too fast or frantic and the defendant's lawyer (and his firm) follow a familiar Hollywood mold.
What the producers are trying to sell as "different" about this show is that the lawyers never really know "the truth." Now, this is realistic, but unfortunately, the show then feels the need to fill the void for the audience by "solving" the uncertainty at the end. In other words, the audience will know in the end what really happened, even if the characters in the show do not. That's too bad. I think the show would be better if it left everyone with that realistic uncertainty of not really knowing, but I guess I understand this would not make for a popular choice among TV producers who want a happy audience....
Saturday, September 25, 2010
USA Today article on prosecutorial misconduct
USA Today has published a long article on prosecutorial misconduct that concludes that federal prosecutors repeatedly have violated their duties as ministers of justice in courtrooms across the nation, adding that "[t]he abuses have put innocent people in prison, set guilty people free and cost taxpayers millions of dollars in legal fees and sanctions." The article (which includes lots of links to even more information) is available here.
Can lawyers use social media to gather information about opposing party?
The Legal Ethics Forum is reporting that the New York State Bar Association has issued an Ethics Opinion on investigations through the use of social media. The New York opinion states that, as long as the lawyer does not use deception, a lawyer can typically use any other information that is either publicly available or accessible to anyone who is a member of the network. The opinion can be found here. A similar opinion from the Philadelphia bar can be found here.
Thanks to the Legal Ethics Forum for the information and links. For more information go to the Legal Ethics Forum here and here.
UPDATE Oct 7, 2010: The Ethical Quandary has a comment here.
Thanks to the Legal Ethics Forum for the information and links. For more information go to the Legal Ethics Forum here and here.
UPDATE Oct 7, 2010: The Ethical Quandary has a comment here.
More on the question of rude behavior
A few days ago, I posted a comment on whether rude behavior constitutes unethical conduct (here), a topic that generated some responses in The Legal Ethics Forum (here).
Adding to the discussion, the Legal Profession blog is reporting that a Colorado Hearing Board has imposed a suspension of a year and a day on an attorney for his pattern of disrespectful and contemptuous behavior in a federal court trial. Among other things, the attorney called another attorney a “fucking weasel” after the attorney reminded the insulting attorney that he should not coach his client during a recess. The attorney also called another attorney a “pinche cabrón” and an “hijo de puta.” (In the footnotes, the board defines these terms as "damned goat, big goat" and "son of a whore," which made me laugh. The word "cabrón" is, in fact, quite insulting to a Spanish speaker, but I can tell you it has nothing to do with a "goat"!! )
It is important to note that both incidents ocurred out of the jury’s presence and involved comments made to another attorney, not to a party as in the case I wrote about a few days ago. Yet, the board found the attorney acted with the intent to disrupt the tribunal in violation of, among others, Rule 8.4.
Adding to the discussion, the Legal Profession blog is reporting that a Colorado Hearing Board has imposed a suspension of a year and a day on an attorney for his pattern of disrespectful and contemptuous behavior in a federal court trial. Among other things, the attorney called another attorney a “fucking weasel” after the attorney reminded the insulting attorney that he should not coach his client during a recess. The attorney also called another attorney a “pinche cabrón” and an “hijo de puta.” (In the footnotes, the board defines these terms as "damned goat, big goat" and "son of a whore," which made me laugh. The word "cabrón" is, in fact, quite insulting to a Spanish speaker, but I can tell you it has nothing to do with a "goat"!! )
It is important to note that both incidents ocurred out of the jury’s presence and involved comments made to another attorney, not to a party as in the case I wrote about a few days ago. Yet, the board found the attorney acted with the intent to disrupt the tribunal in violation of, among others, Rule 8.4.
How not to practice law: ask client to pay fees with drugs
Here is the most recent addition to our running list of examples of how not to practice law. This is one we have seen before (here) and it should be pretty obvious. As usual, the underlying principle is simple: don't ask your client to pay your fees with cocaine!
The Legal Profession blog and Law.com are reporting that North Dakota's Supreme Court has disbarred an attorney for asking a client for cocaine.
Aside from the basic principle, though, the issue of drug addiction presents another problem. If the attorney has an addiction, is disbarment the proper sanction? Should the bar have a duty to attempt to help the lawyer seek rehab? Would it be better to suspend the lawyer subject to proof of completion of rehab and then allow the lawyer to be readmitted subject to conditions like periodic testing or something like that? Or is the risk to clients to high?
The Legal Profession blog and Law.com are reporting that North Dakota's Supreme Court has disbarred an attorney for asking a client for cocaine.
Aside from the basic principle, though, the issue of drug addiction presents another problem. If the attorney has an addiction, is disbarment the proper sanction? Should the bar have a duty to attempt to help the lawyer seek rehab? Would it be better to suspend the lawyer subject to proof of completion of rehab and then allow the lawyer to be readmitted subject to conditions like periodic testing or something like that? Or is the risk to clients to high?
Does an attorney have a duty to non-clients?
The Court of Appeals of Kentucky has issued an opinion that illustrates one of the few instances where attorneys are sometimes held to owe a duty to a non-client. In that case, the court held that although the plaintiff was not a client, the attorney owed a duty because the plaintiff may have been an intended beneficiary of the lawyers' conduct and the lawyers failed to do a proper title search. The case is called Tipton v. Porter and it is available here.
Meanwhile, a court in New Jersey reached the opposite result in a case called Holvenstot v. Nusbaum (available here).
Meanwhile, a court in New Jersey reached the opposite result in a case called Holvenstot v. Nusbaum (available here).
More and more people qualify for legal aid; is mandatory pro-bono an answer to the crisis?
The Census Bureau's recently released a report that details that nearly 57 million Americans now qualify for civil legal assistance from programs funded by the federal Legal Services Corporation (LSC). That's the number of Americans who, in 2009, were at or below 125 percent of the federal poverty level threshold, an income ceiling of $27,563 a year for a family of four. This is an increase of 3 million from 2008.
Meanwhile, the Wall Street Journal is reporting that the Mississippi Supreme Court is considering a proposed rule to require lawyers in the state to provide at least 20 hours of pro bono work.
But Mississippi lawyers are reportedly not happy that altruism may be forced upon them, the Clarion-Ledger reports.
Read the full sotry (with links to more) in the Wall Street Journal Law Blog. Also, click here to see Above the Law’s take on the proposed rule.
Meanwhile, the Wall Street Journal is reporting that the Mississippi Supreme Court is considering a proposed rule to require lawyers in the state to provide at least 20 hours of pro bono work.
But Mississippi lawyers are reportedly not happy that altruism may be forced upon them, the Clarion-Ledger reports.
Read the full sotry (with links to more) in the Wall Street Journal Law Blog. Also, click here to see Above the Law’s take on the proposed rule.
Tuesday, September 21, 2010
Attempt to regulate attorney speech in Utah abandoned
Back in June, the Wall Street Journal reported that a proposal was being discussed in Utah to regulate what lawyers could say about the judicial system. The proposed amendment to the rules would have stated that "[a] lawyer shall not make a public statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the judicial system . . ."
As you would expect, there was substantial opposition to the new rule and four days ago The Salt Lake Tribune reported (here) that the Supreme Court’s Advisory Committee on the Rules of Professional Conduct, which made the proposal initially, decided to recommend against adopting the change.
Thanks to Christi Brock for the update.
As you would expect, there was substantial opposition to the new rule and four days ago The Salt Lake Tribune reported (here) that the Supreme Court’s Advisory Committee on the Rules of Professional Conduct, which made the proposal initially, decided to recommend against adopting the change.
Thanks to Christi Brock for the update.
Sunday, September 19, 2010
When does rude conduct become unethical conduct?
Mike Frisch (Ethics Counsel for Georgetown Law Center) of the Legal Profession Blog has an interesting comment on this as it relates to a case in which the Illinois Administrator filed a complaint alleging, among other things, that an attorney "engaged in misconduct toward an opposing party."
This vague conclusion apparently refers to conduct that was, quite simply, rude. The complaint states that as the attorney and the opposing party left the courtroom, the attorney said to the opposing party "have a nice day, you piece of shit."
This comment was cited as a violation of two ethics rules: (1) using means that have no substantial purpose other than to embarrass, humiliate or burden a third person, and (2) conduct prejudicial to the administration of justice.
Mike Frisch then concludes:
"I predict that the Administrator will lose on both counts. The comment displayed a lack of civility and professionalism, but anyone who cannot handle being called the "s" word cannot function in modern society. I doubt that a finder of fact will find this conduct sufficiently humiliating or burdensome to violate the rule. And prejudicial to the administration of justice? It was not said in open court on the record before a judge."
I am not so sure that I agree. If the comment had been made to opposing cousel, maybe ...., but the comment was made by a male attorney to a female opposing party (a grandmother) who had appeared in court without a lawyer. Also the attorney was representing a man who had violated the terms of a protective order to stay away from the woman and her grandson. The attorney had no business talking to her without counsel present to begin with, let alone to be rude (and possibly intimidating) in that manner. I don't think it is a stretch to say that under the circumstances, the conduct is prejudicial to the administration of justice.
The complaint is available here.
UPDATE: A note about this case has generated a short debate over at the Legal Ethics Forum (here).
UPDATE 10/3/10: The Australian Professional Responsibility blog has posted a comment on the issue here.
This vague conclusion apparently refers to conduct that was, quite simply, rude. The complaint states that as the attorney and the opposing party left the courtroom, the attorney said to the opposing party "have a nice day, you piece of shit."
This comment was cited as a violation of two ethics rules: (1) using means that have no substantial purpose other than to embarrass, humiliate or burden a third person, and (2) conduct prejudicial to the administration of justice.
Mike Frisch then concludes:
"I predict that the Administrator will lose on both counts. The comment displayed a lack of civility and professionalism, but anyone who cannot handle being called the "s" word cannot function in modern society. I doubt that a finder of fact will find this conduct sufficiently humiliating or burdensome to violate the rule. And prejudicial to the administration of justice? It was not said in open court on the record before a judge."
I am not so sure that I agree. If the comment had been made to opposing cousel, maybe ...., but the comment was made by a male attorney to a female opposing party (a grandmother) who had appeared in court without a lawyer. Also the attorney was representing a man who had violated the terms of a protective order to stay away from the woman and her grandson. The attorney had no business talking to her without counsel present to begin with, let alone to be rude (and possibly intimidating) in that manner. I don't think it is a stretch to say that under the circumstances, the conduct is prejudicial to the administration of justice.
The complaint is available here.
UPDATE: A note about this case has generated a short debate over at the Legal Ethics Forum (here).
UPDATE 10/3/10: The Australian Professional Responsibility blog has posted a comment on the issue here.
Friday, September 17, 2010
European Court Limits Attorney-Client Privilege for In-House Counsel
In a blow to multinational businesses and their in-house counsel, the European Court of Justice on Tuesday held that communications between company management and in-house lawyers are not protected from disclosure or discovery in competition law cases or investigations by the European Commission. Go here for the full story.
Thursday, September 16, 2010
Court reverses conviction because of Judge's comments making fun of attorney
Law.com is reporting that a unanimous appeals panel in New York reversed a robbery conviction and remanded the case to be tried before a different judge after it found that the trial judge ridiculed a defense attorney and criticized his arguments in front of the jury by using loaded words such as "clown," "silly," "outrageous" and "comedy." This is the fourth time in about a month I have seen news of a conviction getting reversed because of comments by a trial participant. Go here for the full story. For the other two recent cases, go here and here.
How not to practice law: have sex with client's wife
Continuing our on-going list of things you should not do while practicing law, here is a report on two cases in different states reported on the same day last week involving attorneys having sex with their clients' wives.
In one of the cases, the South Carolina Supreme Court found that the circumstances came "dangerously close to an outright conflict of interest" holding that "Respondent's actions, at the very least, created a "significant risk" that his representation of Client could be compromised due to his personal interest and interaction with Wife. Indeed, that significant risk was realized in this case when Client objected to the relationship between Wife and Respondent, and Respondent ended the attorney/client relationship."
How this description of the case is not a per se conflict of interest is beyond me! The court's position shows its misunderstanding of the concept of a conflict of interest in the first place. For a court to find a conflict of interest it is not required that there be a certain "effect" or "harm" to the representation. The rules regarding conflicts of interest are there precisely to prevent a lawyer from finding himself in a situation where his representation of a client might be threatened by the lawyer's interest in, or duty to, someone or something else.
It seems obvious to me that the moment the attorney began his relationship with the client's wife, the representation of the client was in danger, and the lawyer was operating under a conflict. And this is just the "legal" analysis. Add to that the notion of the betrayal of the client's trust and it seems to me an anonymous admonition is a bad joke.
Interestingly, the court then goes on to hold that from now on a sexual relationship with the spouse of a current client will be considered per se violation of Rule 1.7 (on conflicts), "as it creates the significant risk that the representation of the client will be limited by the personal interests of the attorney."
If that's the case, I don't see why the court could not have held the same thing in this case and imposed a harsher sanction. The court made a point of saying the anonymous lawyer had always been "upstanding member of the bar" up to this point. I wonder who he is? Oh, yeah, I don't know because the order was anonymous! See the order here.
In contrast, in the other case, the Michigan Attorney Discipline Board suspended the attorney for three years while a dissenting opinion argued for disbarment. See the ruling here
In this case, the client was suspicious that his spouse was having an affair and sought his attorney's advice. The attorney, not surprisingly perhaps, did not tell the client it was him (the attorney) who was sleeping with the client's wife.
Eventually, the client discovered the affair and demanded a refund of the fees he had paid to the attorney. The attorney refused, "stating that he had worked on the case and had earned his fees" !! He also earned a suspension.
Thanks to the Legal Profession blog for the information and links.
In one of the cases, the South Carolina Supreme Court found that the circumstances came "dangerously close to an outright conflict of interest" holding that "Respondent's actions, at the very least, created a "significant risk" that his representation of Client could be compromised due to his personal interest and interaction with Wife. Indeed, that significant risk was realized in this case when Client objected to the relationship between Wife and Respondent, and Respondent ended the attorney/client relationship."
How this description of the case is not a per se conflict of interest is beyond me! The court's position shows its misunderstanding of the concept of a conflict of interest in the first place. For a court to find a conflict of interest it is not required that there be a certain "effect" or "harm" to the representation. The rules regarding conflicts of interest are there precisely to prevent a lawyer from finding himself in a situation where his representation of a client might be threatened by the lawyer's interest in, or duty to, someone or something else.
It seems obvious to me that the moment the attorney began his relationship with the client's wife, the representation of the client was in danger, and the lawyer was operating under a conflict. And this is just the "legal" analysis. Add to that the notion of the betrayal of the client's trust and it seems to me an anonymous admonition is a bad joke.
Interestingly, the court then goes on to hold that from now on a sexual relationship with the spouse of a current client will be considered per se violation of Rule 1.7 (on conflicts), "as it creates the significant risk that the representation of the client will be limited by the personal interests of the attorney."
If that's the case, I don't see why the court could not have held the same thing in this case and imposed a harsher sanction. The court made a point of saying the anonymous lawyer had always been "upstanding member of the bar" up to this point. I wonder who he is? Oh, yeah, I don't know because the order was anonymous! See the order here.
In contrast, in the other case, the Michigan Attorney Discipline Board suspended the attorney for three years while a dissenting opinion argued for disbarment. See the ruling here
In this case, the client was suspicious that his spouse was having an affair and sought his attorney's advice. The attorney, not surprisingly perhaps, did not tell the client it was him (the attorney) who was sleeping with the client's wife.
Eventually, the client discovered the affair and demanded a refund of the fees he had paid to the attorney. The attorney refused, "stating that he had worked on the case and had earned his fees" !! He also earned a suspension.
Thanks to the Legal Profession blog for the information and links.
Podcast on med mal in California touches on effects of regulation of attorney's fees on litigation
Go here for a podcast on California's medical malpractice laws featuring Doug Merritt, a lawyer from San Francisco and Jeffrey S. Mitchell, partner with the firm, Bostwick, Peterson & Mitchell LLP. They discuss the Medical Injury Compensation Reform Act (MICRA) and California’s current political climate, the defense and plaintiff perspective of medical malpractice cases and how structured settlements have impacted clients.
Of interest to readers of this blog is the fact that the beginning of the discussion touches on the possible effects of the regulation of attorney's fees on access to legal representation and the conduct of lawyers in the process of litigation and negotiation.
Of interest to readers of this blog is the fact that the beginning of the discussion touches on the possible effects of the regulation of attorney's fees on access to legal representation and the conduct of lawyers in the process of litigation and negotiation.
Reviews of "Outlaw"
The Abnormal Use blog has posted a review of the tv show Outlaw, about which I wrote yesterday. You can read the full review here. It concludes that "the premise of the show is absurd" and that "the absurdity of the premise will likely mean the end of the show." I have to agree. The show is heavy on the rhetoric and weak on logic, acting and storytelling.
You can find more reviews here and here. Not surprisingly, it looks like they are all negative. I wonder if the show will last longer than "The Deep End." Anyone remember that one?!
I will continue to update this post with more links if I see more reviews during the day...in case you are interested.
UPDATE: here is the review from the Blog of the Legal Times. It concludes that "[t]he show in every way seemed to fulfill most critics' expectations, which were that 'Outlaw' is a stinker that won't and shouldn't last longer than it takes to say non compos mentis."
You can find more reviews here and here. Not surprisingly, it looks like they are all negative. I wonder if the show will last longer than "The Deep End." Anyone remember that one?!
I will continue to update this post with more links if I see more reviews during the day...in case you are interested.
UPDATE: here is the review from the Blog of the Legal Times. It concludes that "[t]he show in every way seemed to fulfill most critics' expectations, which were that 'Outlaw' is a stinker that won't and shouldn't last longer than it takes to say non compos mentis."
Wednesday, September 15, 2010
New TV "courtroom drama" preview tonight
Back in June, I posted the comment that appears below about three new TV shows expected to start this fall. One of them - Outlaw - previews tonight on NBC and I have seen commercials for one of the others - "The Defenders". But I have not heard anything at all about the third one.
Unfortunately, although as I expected, the (p)reviews for Outlaw are not good. The Washington Post wrote that "the show is so ludicrously dumb that your eyeballs will hurt from rolling so much." See the full review here. It concludes the show "should be dismissed." Go here for more on the story.
The Blog of the Legal Times said it will blog on the show tomorrow.
Here is my post from last June:
With the recent demise of the original "Law & Order" and "Raising the Bar," the major networks are apparently feeling the need to introduce new law related shows. Here are the trailers. One is called "Outlaw" about a Supreme Court Justice who decides to retire and go into private practice. Another is called "The Defenders" and is about a pair of criminal defense lawyers. The third one is "Harry's Law" about people brought together by fate to form a law firm.
I enjoy watching law related shows and movies and reading "legal thrillers" as much as anyone, but I often wish they were much better than what they usually are. I will give all of these a chance but from what I can see in these trailers at least two of them appear to be based on tired old stereotypes: either every client is innocent (Outlaw) or criminal defense lawyers are sleazy (The Defenders), aside from the fact that apparently all lawyers are young, beautiful, fit, sexy and have lots of sex in the office and law libraries. Outlaw also seems to have the stereotypical "team" of characters (common to so many "heist" type movies): the outlaw, the rebel, the intellectual, the smartass, the computer genius, etc. If they add a demolitions expert maybe they could compete with the A-team. The Defenders looks like it might be more of a comedy "detective" show; more about trying to figure out "who did it" than about legal issues.
Harry's Law seems to escape the mold - or at least part of it. This one is produced by David E. Kelley, producer of three relatively successful law related shows. The trailer has some pretty funny lines and Kathy Bates is always entertaining. But, given that I didn't like any of the three previous David E. Kelley shows, I will have to wait and see...
But I am getting way ahead of myself. Let's give them all a chance.... Maybe they will last longer than the last few attempts ... Does anybody remember "Shark" or "Eli Stone"?
Unfortunately, although as I expected, the (p)reviews for Outlaw are not good. The Washington Post wrote that "the show is so ludicrously dumb that your eyeballs will hurt from rolling so much." See the full review here. It concludes the show "should be dismissed." Go here for more on the story.
The Blog of the Legal Times said it will blog on the show tomorrow.
Here is my post from last June:
With the recent demise of the original "Law & Order" and "Raising the Bar," the major networks are apparently feeling the need to introduce new law related shows. Here are the trailers. One is called "Outlaw" about a Supreme Court Justice who decides to retire and go into private practice. Another is called "The Defenders" and is about a pair of criminal defense lawyers. The third one is "Harry's Law" about people brought together by fate to form a law firm.
I enjoy watching law related shows and movies and reading "legal thrillers" as much as anyone, but I often wish they were much better than what they usually are. I will give all of these a chance but from what I can see in these trailers at least two of them appear to be based on tired old stereotypes: either every client is innocent (Outlaw) or criminal defense lawyers are sleazy (The Defenders), aside from the fact that apparently all lawyers are young, beautiful, fit, sexy and have lots of sex in the office and law libraries. Outlaw also seems to have the stereotypical "team" of characters (common to so many "heist" type movies): the outlaw, the rebel, the intellectual, the smartass, the computer genius, etc. If they add a demolitions expert maybe they could compete with the A-team. The Defenders looks like it might be more of a comedy "detective" show; more about trying to figure out "who did it" than about legal issues.
Harry's Law seems to escape the mold - or at least part of it. This one is produced by David E. Kelley, producer of three relatively successful law related shows. The trailer has some pretty funny lines and Kathy Bates is always entertaining. But, given that I didn't like any of the three previous David E. Kelley shows, I will have to wait and see...
But I am getting way ahead of myself. Let's give them all a chance.... Maybe they will last longer than the last few attempts ... Does anybody remember "Shark" or "Eli Stone"?
Tuesday, September 14, 2010
Most Illegal Immigrants Don’t Get Legal Representation
According to a survey by the Chicago-based National Immigration Justice Center, thousands of people in immigration detention facilities are held without ready access to legal representation because of geographically-isolated facilities, government restrictions on phone contacts, and inadequately funded legal information programs. For the story go to the Wall Street Journal, the Los Angeles Times and the Blog of the Legal Times.
Unauthorized practice of law is a problem in Texas
Officials with the Supreme Court of Texas Unauthorized Practice of Law Committee (UPLC) say complaints about immigration consulting businesses run by nonlawyers are a problem in Texas. Many people who use such services do not speak English. They are unaware that the people who run the businesses may not be attorneys and that their immigration issues might be mishandled by nonlawyers, officials say. Go here for the full story.
Arbitrator rules Toyota former attorney can use arguably privileged documents in litigation against Toyota
The ABA Journal.com is reporting that an arbitrator has ruled that a former in-house lawyer for Toyota may use documents that otherwise would be protected by attorney-client privilege because he has made a prima facie showing that a crime-fraud exception applies. Go here for the full story. Go here for the text of the arbitrator's ruling.
Sunday, September 12, 2010
On the role of counsel in delinquency proceedings: Guardian or Advocate?
The Chicago Daily Law Bulletin is reporting that in a petition for leave to appeal in a case called In re Rodney S. (No. 110963), a minor is urging the Illinois Supreme Court to reverse his adjudication of delinquency claiming he was deprived the right to counsel when his attorney acted as his attorney and as a guardian ad litem at the same time.
According to the article, the petition cites a 2007 report on delinquency representation in Illinois that concludes that "the type of delinquency representation provided in Illinois courtrooms varies from county to county, with some delinquency attorneys practicing 'best interest' representation, others following the 'express interest' model, and still others acting as both defense attorney and [guardian ad litem]." You can find the article here if you have an online subscription to the Chicago Daily Law Bulletin. Otherwise, look for it in print in the September 10, 2010 issue (Vol.156, Issue 177).
The petition originates from a decision by the 4th District Appellate Court holding, among other things, that the roles of a defense attorney and guardian ad litem are not always in conflict because they both have an obligation "to protect the juvenile's best interest even if those interests do not correspond with the juvenile's wishes."
That statement displays a complete lack of understanding of the very notion of the attorney-client relationship. The notion that some attorneys are attempting to serve as guardians at litem and advocates for the minors at the same time is inconceivable to me. The two roles are, by definition, almost always incompatible. I hope the Court takes the case and issues an opinion clarifying the matter.
I also hope that the court takes a careful look at In the Matter of MR, 638 A.2d 1274 (NJ 1994), an opinion of the New Jersey Supreme Court, which is one of the best opinions I have seen on this subject (the reason I assign it to my students when we discuss this issue).
The case provides a very clear explanation of the problem and the proper approach. I hope the Illinois Supreme Court takes a look at it in deciding the case before it. In MR, the New Jersey Supreme Court explains the proper role of an attorney for an incompetent or a minor in the following terms:
As we have recognized in other contexts, the attorney’s role differs from that of a guardian ad litem. . . . A court-appointed counsel’s services are to the child. Counsel acts as an independent legal advocate . . . and takes an active part in the hearing, ranging from subpoenaing and cross-examining witnesses to appealing the decision, if warranted. If the purpose of the appointment is for legal advocacy, then counsel would be appointed. A court-appointed guardian ad litem’s services are to the court ... The GAL acts as an independent fact finder, investigator and evaluator as to what furthers the best interests of the child. The GAL submits a written report to the court and is available to testify. If the purpose of the appointment is for independent investigation and fact finding, then a GAL would be appointed. The GAL can be an attorney, a social worker, a mental health professional or other appropriate person. . . . .
. . . [T]he role of an attorney in abuse or neglect cases and in termination of parental rights cases must be as an advocate for the child. Nothing short of zealous representation is adequate to protect a child’s fundamental legal rights. . . . Requiring attorneys to act as counsel for children in these cases, does not deprive the court of the benefit of the type of assistance afforded by a guardian ad litem. Clearly, as counsel for the child, an attorney could request the additional appointment of a guardian ad litem, and the court sua sponte could do so if deemed necessary. Yet by clarifying an attorney’s role as counsel for the child, substantial evidentiary and procedural dilemmas could be solved. Under the present situation where attorneys assume a hybrid role of attorney/social investigator, questions arise such as the right of the attorney to speak with the parties outside the presence of their counsel; whether communications between a child and the attorney are privileged; and whether an attorney who submits an investigative report is subject to cross-examination. Finally, having attorneys act as counsel for children insures that they are being utilized for a role for which they are trained and suited. . . .
In sum, if it is true that there is confusion (or inconsistency) among Illinois courts on the proper approach to representation of minors in delinquency proceedings, I would fully support a petition to the Supreme Court to clarify the distinction between an attorney and a guardian ad litem.
In delinquency proceedings, the difference between attorneys and GALs is critical. The attorney should follow the client's wishes with the goal of avoiding a conviction or adjudication of delinquency. The guardian, on the other hand, has to fulfill a duty to the court and to act in the best interest of the minor. These two approaches will not necessarily lead in the same direction and should, thus, never be combined or confused. If that is happening now, attorneys are attempting to do the impossible, or, at least, are acting under a clear conflict of interest and the Court should put a stop to it.
According to the petition in In Re Rodney S., the attorney for the minor identified himself as a guardian at litem in court and advocated against the minor's desire to stay at his mother's home. If that is the case, the attorney provided ineffective assistance of counsel. If he was supposed to be advocating for his client, his job was to represent his client, not to advocate against his client. If, on the other hand, he had been specifically appointed to serve as a guardian ad litem by the court, then the minor simply had no legal representation at all in violation of his rights. Any way you look at it, the Court should, therefore, reverse and fix the problem.
You can read the opinion in In re Rodney S. here. In particular take a look at pages 9 to 11.
UPDATE 9/1/11: The Court rejected the appeal in In re Rodney S., but a few weeks later granted review in another case that raises the same issue. That case is called In re Austin M, and it is available here. The oral argument before the court of appeals in this case is available here. The oral argument before the Illinois Supreme Court is scheduled for this fall and the case should be decided by the end of this term.
UPDATE 1/12: The video of the oral argument before the IL Supreme Court is available here. If you prefer just the audio, go here.
UPDATE 9/1/12: The Supreme Court ruled an attorney can't serve as advocate and guardian at the same time. Go here for more information and links.
According to the article, the petition cites a 2007 report on delinquency representation in Illinois that concludes that "the type of delinquency representation provided in Illinois courtrooms varies from county to county, with some delinquency attorneys practicing 'best interest' representation, others following the 'express interest' model, and still others acting as both defense attorney and [guardian ad litem]." You can find the article here if you have an online subscription to the Chicago Daily Law Bulletin. Otherwise, look for it in print in the September 10, 2010 issue (Vol.156, Issue 177).
The petition originates from a decision by the 4th District Appellate Court holding, among other things, that the roles of a defense attorney and guardian ad litem are not always in conflict because they both have an obligation "to protect the juvenile's best interest even if those interests do not correspond with the juvenile's wishes."
That statement displays a complete lack of understanding of the very notion of the attorney-client relationship. The notion that some attorneys are attempting to serve as guardians at litem and advocates for the minors at the same time is inconceivable to me. The two roles are, by definition, almost always incompatible. I hope the Court takes the case and issues an opinion clarifying the matter.
I also hope that the court takes a careful look at In the Matter of MR, 638 A.2d 1274 (NJ 1994), an opinion of the New Jersey Supreme Court, which is one of the best opinions I have seen on this subject (the reason I assign it to my students when we discuss this issue).
The case provides a very clear explanation of the problem and the proper approach. I hope the Illinois Supreme Court takes a look at it in deciding the case before it. In MR, the New Jersey Supreme Court explains the proper role of an attorney for an incompetent or a minor in the following terms:
As we have recognized in other contexts, the attorney’s role differs from that of a guardian ad litem. . . . A court-appointed counsel’s services are to the child. Counsel acts as an independent legal advocate . . . and takes an active part in the hearing, ranging from subpoenaing and cross-examining witnesses to appealing the decision, if warranted. If the purpose of the appointment is for legal advocacy, then counsel would be appointed. A court-appointed guardian ad litem’s services are to the court ... The GAL acts as an independent fact finder, investigator and evaluator as to what furthers the best interests of the child. The GAL submits a written report to the court and is available to testify. If the purpose of the appointment is for independent investigation and fact finding, then a GAL would be appointed. The GAL can be an attorney, a social worker, a mental health professional or other appropriate person. . . . .
. . . [T]he role of an attorney in abuse or neglect cases and in termination of parental rights cases must be as an advocate for the child. Nothing short of zealous representation is adequate to protect a child’s fundamental legal rights. . . . Requiring attorneys to act as counsel for children in these cases, does not deprive the court of the benefit of the type of assistance afforded by a guardian ad litem. Clearly, as counsel for the child, an attorney could request the additional appointment of a guardian ad litem, and the court sua sponte could do so if deemed necessary. Yet by clarifying an attorney’s role as counsel for the child, substantial evidentiary and procedural dilemmas could be solved. Under the present situation where attorneys assume a hybrid role of attorney/social investigator, questions arise such as the right of the attorney to speak with the parties outside the presence of their counsel; whether communications between a child and the attorney are privileged; and whether an attorney who submits an investigative report is subject to cross-examination. Finally, having attorneys act as counsel for children insures that they are being utilized for a role for which they are trained and suited. . . .
In sum, if it is true that there is confusion (or inconsistency) among Illinois courts on the proper approach to representation of minors in delinquency proceedings, I would fully support a petition to the Supreme Court to clarify the distinction between an attorney and a guardian ad litem.
In delinquency proceedings, the difference between attorneys and GALs is critical. The attorney should follow the client's wishes with the goal of avoiding a conviction or adjudication of delinquency. The guardian, on the other hand, has to fulfill a duty to the court and to act in the best interest of the minor. These two approaches will not necessarily lead in the same direction and should, thus, never be combined or confused. If that is happening now, attorneys are attempting to do the impossible, or, at least, are acting under a clear conflict of interest and the Court should put a stop to it.
According to the petition in In Re Rodney S., the attorney for the minor identified himself as a guardian at litem in court and advocated against the minor's desire to stay at his mother's home. If that is the case, the attorney provided ineffective assistance of counsel. If he was supposed to be advocating for his client, his job was to represent his client, not to advocate against his client. If, on the other hand, he had been specifically appointed to serve as a guardian ad litem by the court, then the minor simply had no legal representation at all in violation of his rights. Any way you look at it, the Court should, therefore, reverse and fix the problem.
You can read the opinion in In re Rodney S. here. In particular take a look at pages 9 to 11.
UPDATE 9/1/11: The Court rejected the appeal in In re Rodney S., but a few weeks later granted review in another case that raises the same issue. That case is called In re Austin M, and it is available here. The oral argument before the court of appeals in this case is available here. The oral argument before the Illinois Supreme Court is scheduled for this fall and the case should be decided by the end of this term.
UPDATE 1/12: The video of the oral argument before the IL Supreme Court is available here. If you prefer just the audio, go here.
UPDATE 9/1/12: The Supreme Court ruled an attorney can't serve as advocate and guardian at the same time. Go here for more information and links.
Saturday, September 11, 2010
Yet another reversal because of prosecutor's comments
Last week a New Jersey appeals court overturned a conviction for attempted murder in part due to the prosecutor's persistent denigration of defense counsel. This is the fourth reversal due to prosecutors' comments I have heard of in about a month. The other three were in Illinois (see here).
In the New Jersey case the prosecutor reportedly disparaged defense counsel and the defendant. The prosecutor also called the defendant a liar, suggested that the defense wasted the jury's valuable time, and closed with a call for the jury to discharge its duty to society. The court concluded that "these cumulative errors by the prosecutor raise grave doubts that defendant received a fair trial." Go here for the full story.
In the New Jersey case the prosecutor reportedly disparaged defense counsel and the defendant. The prosecutor also called the defendant a liar, suggested that the defense wasted the jury's valuable time, and closed with a call for the jury to discharge its duty to society. The court concluded that "these cumulative errors by the prosecutor raise grave doubts that defendant received a fair trial." Go here for the full story.
Kansas Supreme Court reverses conviction because of judicial and prosecutorial misconduct
Law.com is reporting that a Kansas man convicted of child molestation will get a new trial because of misconduct by the judge and the prosecutor. The Kansas Supreme Court ruled on Sept. 3 that they each crossed the line during the trial of a defendant, who in 2008 was sentenced to 25 years to life for fondling an 8-year-old girl. The court found that the judge improperly questioned and encouraged the girl while she was testifying and that the prosecutor violated the defendant's right to remain silent in statements made during closing arguments. Go here for the full story.
Thursday, September 9, 2010
Illinois Ct of Appeals again reverses conviction because of ineffective assistance of counsel
Last week, I reported that the Illinois Court of Appeals recently announced two opinions in which it reversed convictions based on the deficient conduct of the defendants' attorneys. Surprinsingly, the court has reversed a third conviction in an opinion released today. The case is called People v. Sánchez and it is available here.
In this case, the court concluded that the defendant's attorney had failed to investigate the details of the defendant's prior conviction or that counsel was unaware of the law (which clearly holds that the prior conviction was inadmissible). The defendant's lawyer did not object to the admissibility of the conviction which the court found to support a finding of ineffective assistance of counsel. The court acknowledged that the decision whether to object is generally a matter of trial strategy, but it concluded that there was no valid strategic reason for trial counsel's failure to object to the admission of the defendant's prior conviction.
In this case, the court concluded that the defendant's attorney had failed to investigate the details of the defendant's prior conviction or that counsel was unaware of the law (which clearly holds that the prior conviction was inadmissible). The defendant's lawyer did not object to the admissibility of the conviction which the court found to support a finding of ineffective assistance of counsel. The court acknowledged that the decision whether to object is generally a matter of trial strategy, but it concluded that there was no valid strategic reason for trial counsel's failure to object to the admission of the defendant's prior conviction.
Sunday, September 5, 2010
Arizona lawyer may be in need of an exorcism.... or discipline
To quote Mike Frisch of the Legal Profession blog..."I thought that I had seen just about everything in the area of attorney misconduct, but a hearing officer's report from Arizona proves me wrong..."
Here is the story of a lawyer in Arizona who is facing discipline for her conduct in handling a client's wife's estate. The client's wife committed suicide and the lawyer handled the probate matters. Within days of the death, the lawyer began telling her client that his deceased wife had 'come' to her (the lawyer), that the 'spirit' of the wife was 'inside' her and that she could communicate the wife's thoughts. Before long, the deceased wife made it known that she wanted the client to have sex with the lawyer. The lawyer continued to "channel" the wife's thoughts to the client for three years.
Based on these facts, an Arizona Supreme Court hearing officer filed a report on the lawyer's conduct recommending that she be suspended for six months.
Interestingly, though, the report is very careful not to take a position as to an important fact in the case: whether the lawyer was actually possessed by the spirit of the deceased wife. In fact, the report hints at the possibility that it might be true that she was possessed and asserts that the client, the lawyer and other witnesses genuinely believed the lawyer was channeling the deceased wife's thoughts.
This raises an interesting question. If you believe that the lawyer was, in fact, possessed by a spirit, then she was not lying or scheming; she was not in control of her actions. And if that is the case, can you really justify imposing discipline?
Well, you can, but only as to the fact that the attorney tried to deny that she ever claimed to speak for the dead wife. So, she could be disciplined for lying to the disciplinary authorities, but I don't think that is the worst part of her conduct. The clear implication here is that she schemed the whole thing to take advantage of the client. Also, there's the issue of the sexual relationship with the client while representing him. If the court is going to impose discipline for those, I think the court is going to have to make a factual determination as to whether the lawyer was, in fact, possessed or whether she was pretending intentionally or simply delusional.
The hearing officer's report is available here.
UPDATES (October 2010): Here and here
UPDATE (March 2011): here.
Here is the story of a lawyer in Arizona who is facing discipline for her conduct in handling a client's wife's estate. The client's wife committed suicide and the lawyer handled the probate matters. Within days of the death, the lawyer began telling her client that his deceased wife had 'come' to her (the lawyer), that the 'spirit' of the wife was 'inside' her and that she could communicate the wife's thoughts. Before long, the deceased wife made it known that she wanted the client to have sex with the lawyer. The lawyer continued to "channel" the wife's thoughts to the client for three years.
Based on these facts, an Arizona Supreme Court hearing officer filed a report on the lawyer's conduct recommending that she be suspended for six months.
Interestingly, though, the report is very careful not to take a position as to an important fact in the case: whether the lawyer was actually possessed by the spirit of the deceased wife. In fact, the report hints at the possibility that it might be true that she was possessed and asserts that the client, the lawyer and other witnesses genuinely believed the lawyer was channeling the deceased wife's thoughts.
This raises an interesting question. If you believe that the lawyer was, in fact, possessed by a spirit, then she was not lying or scheming; she was not in control of her actions. And if that is the case, can you really justify imposing discipline?
Well, you can, but only as to the fact that the attorney tried to deny that she ever claimed to speak for the dead wife. So, she could be disciplined for lying to the disciplinary authorities, but I don't think that is the worst part of her conduct. The clear implication here is that she schemed the whole thing to take advantage of the client. Also, there's the issue of the sexual relationship with the client while representing him. If the court is going to impose discipline for those, I think the court is going to have to make a factual determination as to whether the lawyer was, in fact, possessed or whether she was pretending intentionally or simply delusional.
The hearing officer's report is available here.
UPDATES (October 2010): Here and here
UPDATE (March 2011): here.
Friday, September 3, 2010
For the third time in less than a month Illinois ct of appeals reverses conviction because of prosecutor's comments
For the third time in about a month the Illinois Court of Appeals has reversed a conviction because of comments made by the prosecutor. The most recent case is called People v Adams and it is available here. For a discussion of the previous two cases go here and here.
In Adams, the prosecutor attempted to argue against the allegation that a police officer planted evidence on the defendant by pointing out that the officer was an 8 ½-year veteran police officer and that it was illogical that he (and another officer) would risk their jobs, their freedom and their reputations over 0.8 grams of cocaine if they had lied about finding the cocaine.
The Court of Appeals found the comments improper concluding that the prosecutor was attempting to bolster the witnesses’ testimony by suggesting that they had more credibility simply because they were police officers. The Court also concluded that the defendant was prejudiced by the comments because the evidence was "closely balanced."
In Adams, the prosecutor attempted to argue against the allegation that a police officer planted evidence on the defendant by pointing out that the officer was an 8 ½-year veteran police officer and that it was illogical that he (and another officer) would risk their jobs, their freedom and their reputations over 0.8 grams of cocaine if they had lied about finding the cocaine.
The Court of Appeals found the comments improper concluding that the prosecutor was attempting to bolster the witnesses’ testimony by suggesting that they had more credibility simply because they were police officers. The Court also concluded that the defendant was prejudiced by the comments because the evidence was "closely balanced."
Illinois Ct of Appeals issues two opinions reversing convictions because of ineffective assistance of counsel
Ineffective assistance of counsel is a contention that is often raised by defendants on appeal and in the vast majority of cases it is rejected. Yet, the Illinois Court of Appeals has recently announced two opinions in which it has reversed convictions based on the deficient conduct of the defendants' attorneys.
The first case is called People v Baines and it is available here. It was announced about two weeks ago, although, apparently it is a corrected version of an opinion originally written back in March. If it was announced back in March, I must admit I missed it then, so I am looking at it for the first time.
In Baines, the court concluded that the record was "replete with examples of unusual behavior by defense counsel" and that, thus, it was "evident . . . that there is merit to the defendant’s contention that his representation fell below an acceptable standard."
Among other things, the court found that during his direct examination, it was the defendant who was trying to guide the attorney in how to conduct the questioning in order to elicit relevant information. The court also noted that the attorney elicited from the defendant a damning admission and that "the gravity of the harm caused by this evidence was lost on defense counsel, as he continued to question his own client in a manner which bolstered the State’s case." In the opinion, the court cites the trial transcript extensively and describes the trial in detail to support its conclusion that the attorney's representation was completely inadequate.
In a dissenting opinion, Judge Theis argued that although trial counsel rendered a deficient representation during the course of the trial, the defendant was not prejudiced.
The second case is called People v. Mescall and it is available here. In this case, the court reversed the trial court's judgment dismissing defendant's postconviction petition and remanded for further proceedings on the ground that defendant presented an arguable basis that counsel was ineffective for failing to challenge the trial court's error in imposing mandatory consecutive sentences.
The first case is called People v Baines and it is available here. It was announced about two weeks ago, although, apparently it is a corrected version of an opinion originally written back in March. If it was announced back in March, I must admit I missed it then, so I am looking at it for the first time.
In Baines, the court concluded that the record was "replete with examples of unusual behavior by defense counsel" and that, thus, it was "evident . . . that there is merit to the defendant’s contention that his representation fell below an acceptable standard."
Among other things, the court found that during his direct examination, it was the defendant who was trying to guide the attorney in how to conduct the questioning in order to elicit relevant information. The court also noted that the attorney elicited from the defendant a damning admission and that "the gravity of the harm caused by this evidence was lost on defense counsel, as he continued to question his own client in a manner which bolstered the State’s case." In the opinion, the court cites the trial transcript extensively and describes the trial in detail to support its conclusion that the attorney's representation was completely inadequate.
In a dissenting opinion, Judge Theis argued that although trial counsel rendered a deficient representation during the course of the trial, the defendant was not prejudiced.
The second case is called People v. Mescall and it is available here. In this case, the court reversed the trial court's judgment dismissing defendant's postconviction petition and remanded for further proceedings on the ground that defendant presented an arguable basis that counsel was ineffective for failing to challenge the trial court's error in imposing mandatory consecutive sentences.
Illinois Court of Appeals rejects argument re conflict of interest in case where attorney represented alleged perpetrator and victim at same time
About a month ago, the Illinois Court of Appeals (Fourth District) issued an opinion in a peculiar case in which a convicted defendant argued he had received ineffective assistance of counsel, among other reasons, because his attorney operated under a conflict of interest.
The underlying incidents upon which the State based its sexual-abuse charges against the defendant in the case and against the other co-defendant included allegations that they engaged in sexual misconduct with each other. In other words, the state's case alleged, at least in part, that the co-defendants were alleged victims of each other.
How could a lawyer represent both co-defendants at the same time? If they were victims of each other, it would be in each person's interest to point the finger at the other, which would make it improper for the attorney to represent them jointly.
Not surprisingly, the co-defendants did not allege either abused the other as part of their defense. And it is precisely based on the fact that the defendants did not point the finger at each other that the court holds now that the attorney's representation did not constitute a conflict.
Am I missing something here? Doesn't this translate into this: the attorney puts himself in a position where he can't make a certain argument because if he does he'd violate his duty to a client - which means he had a conflict - so he doesn't make the argument and then the court says that the fact he did not make the argument shows he did not have a conflict.
I think the lower court should have prevented him from representing the defendants jointly.
The case is called In re Austin and the opinion is available here.
The underlying incidents upon which the State based its sexual-abuse charges against the defendant in the case and against the other co-defendant included allegations that they engaged in sexual misconduct with each other. In other words, the state's case alleged, at least in part, that the co-defendants were alleged victims of each other.
How could a lawyer represent both co-defendants at the same time? If they were victims of each other, it would be in each person's interest to point the finger at the other, which would make it improper for the attorney to represent them jointly.
Not surprisingly, the co-defendants did not allege either abused the other as part of their defense. And it is precisely based on the fact that the defendants did not point the finger at each other that the court holds now that the attorney's representation did not constitute a conflict.
Am I missing something here? Doesn't this translate into this: the attorney puts himself in a position where he can't make a certain argument because if he does he'd violate his duty to a client - which means he had a conflict - so he doesn't make the argument and then the court says that the fact he did not make the argument shows he did not have a conflict.
I think the lower court should have prevented him from representing the defendants jointly.
The case is called In re Austin and the opinion is available here.
How not to practice law: continue to practice during your suspension
As with pretty much every single other entry in the on-going "how not to practice law" series, all we can say is "duh!"
The Chicago Daily Law Bulletin is reporting today that a disciplinary panel has decided to suspend a Chicago attorney for nine months because he continued to practice law while his license was suspended during 2008.
The lawyer was careful not to go to his office and did not meet with clients, but he hired a young associate who had recently been admitted to the Illinois bar to do the work. The lawyer continued to work "behind the scenes." He contacted the associate and his secretary many times daily, gave instructions, helped with the preparation of the cases, and drafted documents and letters that the associate later signed.
As an aside, did anyone notice that the guy's license was suspended to begin with? I don't know what he did the first time that got him suspended but, let's face it, this is now his second suspension (assuming there are no others). So let's review: The lawyer did something that warranted a suspension. Then he decides to disregard the suspension and continues with his practice, gets caught and admits to the authorities that he had engaged in unauthorized practice of law.... and now he is just suspended again? Why wasn't he disbarred?
And, as a second aside, what about the "young associate"? I am sorry for her, but it should have been pretty obvious to her that she was helping a person practice law in violation of the rules. She should have rejected the job offer. Now she should be disciplined too.
The Chicago Daily Law Bulletin is reporting today that a disciplinary panel has decided to suspend a Chicago attorney for nine months because he continued to practice law while his license was suspended during 2008.
The lawyer was careful not to go to his office and did not meet with clients, but he hired a young associate who had recently been admitted to the Illinois bar to do the work. The lawyer continued to work "behind the scenes." He contacted the associate and his secretary many times daily, gave instructions, helped with the preparation of the cases, and drafted documents and letters that the associate later signed.
As an aside, did anyone notice that the guy's license was suspended to begin with? I don't know what he did the first time that got him suspended but, let's face it, this is now his second suspension (assuming there are no others). So let's review: The lawyer did something that warranted a suspension. Then he decides to disregard the suspension and continues with his practice, gets caught and admits to the authorities that he had engaged in unauthorized practice of law.... and now he is just suspended again? Why wasn't he disbarred?
And, as a second aside, what about the "young associate"? I am sorry for her, but it should have been pretty obvious to her that she was helping a person practice law in violation of the rules. She should have rejected the job offer. Now she should be disciplined too.
Thursday, September 2, 2010
Justice Sotomayor speech
Here is a video of a recent speech by Justice Sonia Sotomayor at the University of Denver Law School. If, for some reason, you don't see the video just below this line, you can watch it here.
Thanks to the Legal Ethics Forum for the link.
Thanks to the Legal Ethics Forum for the link.
Sunday, August 29, 2010
Verdict reversed because of plaintiff's lawyer's comments
For the second time this month, the 3rd District Court of Appeal in Florida has issued a reversal because of inflammatory arguments by an attorney. In this case, the defendants admitted liability, but that did not stop the plaintiff's attorney from making arguments to disparage the defendants as greedy, arrogant and callous corporate types who had no intention of compensating the plaintiff for his injuries. In trial, he said the defendants kicked the plaintiff "out on the street like a dog"; complained of "corporate arrogance and corporate greed"; and called defense attorneys "slick talkers." Go here for the full story.
Attorney suspended for billing for more than 24 hours in one day
Go here for the story of an Ohio attorney who has been suspended for two years after it was determined that she billed the court of Lucas County, Ohio for more than 24 hours a day on multiple occasions. She also turned in other bills of dubious nature, including five bills for days of over 20 hours.
Thanks to the Legal Ethics Forum for the information and link.
Thanks to the Legal Ethics Forum for the information and link.
Thursday, August 26, 2010
How not to practice law: make sure you tell the jury the information the judge had excluded
Here is our latest addition to the running list of things you should NOT do when practicing law. As usual, it is an easy one. If the judge excludes certain material from the trial you are NOT supposed to bring it up to the jury.
The Legal Ethics Forum is reporting today on a case called State v. Cifuentes-Vicente, in whcih the Washington Court of Appeals upheld sanctions against a criminal defense counsel for suggesting to the jury what they might have heard if the judge hadn't excluded certain lines of questioning.
The Legal Ethics Forum is reporting today on a case called State v. Cifuentes-Vicente, in whcih the Washington Court of Appeals upheld sanctions against a criminal defense counsel for suggesting to the jury what they might have heard if the judge hadn't excluded certain lines of questioning.
New California Rule on screening
As reported in The Ethical Quandary Blog, the California State Bar Board of Governors has approved a new rule on imputation of conflicts of interest based on ABA Model Rule 1.10, but, oddly, it has opted to let the issue of ethical screening be decided on a case-by-case basis. The Board’s proposed change is now pending consideration by the California Supreme Court.
I guess I have to think more about this one, but my gut reaction is that it is a bad idea. It seems to me that any time you leave things to be decided "on a case by case basis" you run the risk of ending up with more disputes and litigation, inconsistent results, and, more importantly, less guidance as to how to avoid a problem. Specific rules help know what to expect and, thus, how to prepare for a possible problem.
On the other hand, a case by case approach provides flexibility for instances where applying a hard line rule might be unfair. Also, I assume that as case law develops on the issue more specific answers will emerge. Until that happens, though, some clients may have to become guinea pigs, no?
What do you think?
I guess I have to think more about this one, but my gut reaction is that it is a bad idea. It seems to me that any time you leave things to be decided "on a case by case basis" you run the risk of ending up with more disputes and litigation, inconsistent results, and, more importantly, less guidance as to how to avoid a problem. Specific rules help know what to expect and, thus, how to prepare for a possible problem.
On the other hand, a case by case approach provides flexibility for instances where applying a hard line rule might be unfair. Also, I assume that as case law develops on the issue more specific answers will emerge. Until that happens, though, some clients may have to become guinea pigs, no?
What do you think?
Public defenders and imputed conflicts of interest
The Legal Profession Blog is reporting that the Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline has issued an advisory opinion addressing two questions that arise from the State Public Defender having a central office and branch offices.
The opinion (Op 2010-5) addresses whether assistant state public defenders located in different offices are considered lawyers associated in a firm for purposes of imputation of conflicts of interest. The opinion also addresses whether there’s a conflict of interest when an assistant state public defender in the central appellate office conducts a merit review, prosecutes an appeal, or pursues a post-conviction remedy asserting ineffectiveness of an assistant state public defender from a branch office.
The opinion finds that assistant state public defenders in different offices are not automatically considered lawyers associated in a firm for purposes of imputing conflicts of interest. The association hinges on whether the appellate state public defender provides assistance to a trial branch state public defender in a trial matter.
The opinion also finds that there is not a per se conflict of interest between assistant state public defenders in different offices. A conflict depends “upon whether there is a substantial risk that the appellate lawyer’s ability to consider, recommend, or carry out an appropriate course of action for the defendant is limited by the appellate lawyer’s responsibilities to another client, a former client, or a third person, or by the lawyer’s own person interests.”
The opinion (Op 2010-5) addresses whether assistant state public defenders located in different offices are considered lawyers associated in a firm for purposes of imputation of conflicts of interest. The opinion also addresses whether there’s a conflict of interest when an assistant state public defender in the central appellate office conducts a merit review, prosecutes an appeal, or pursues a post-conviction remedy asserting ineffectiveness of an assistant state public defender from a branch office.
The opinion finds that assistant state public defenders in different offices are not automatically considered lawyers associated in a firm for purposes of imputing conflicts of interest. The association hinges on whether the appellate state public defender provides assistance to a trial branch state public defender in a trial matter.
The opinion also finds that there is not a per se conflict of interest between assistant state public defenders in different offices. A conflict depends “upon whether there is a substantial risk that the appellate lawyer’s ability to consider, recommend, or carry out an appropriate course of action for the defendant is limited by the appellate lawyer’s responsibilities to another client, a former client, or a third person, or by the lawyer’s own person interests.”
$2 million dollar sanction for frivolous lawsuit
I have often complained on this blog about inadequeate/lenient sanctions for misconduct. I can't complain today! The Wall Street Journal is reporting that a New Jersey state judge has ordered Paul Weiss and Lowenstein Sandler to pay almost $2 million in legal fees for filing what she considered frivolous suit. Wow! Now that's a big sanction; and by the way, that is supposed to come out of the firm's pocket - not the client's.. In the lawsuit a billionaire plaintiff argued that his father in law had made an oral promise to leave a greater share of his estate to his daughter - the plaintiff's late wife. For more on this story go to the WSJ Law Blog.
Tuesday, August 24, 2010
Conduct unrelated to the practice of law
Last night we discussed in class how an attorney can be disciplined for conduct outside the practice of law. Interestingly, apparently there is some debate in Australia as to whether this should be the case. Here is a link to an article discussing the issue (via The Legal Ethics Forum).
Debate as to whether foreign lawyers should be allowed to practice law in the US
The ABA Commission in charge of performing a review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments has asked for comment on these two proposals:
(a) to allow foreign lawyers (defined as in existing rules, like the foreign legal consultant rule) to gain admission via a US jurisdiction's in house counsel rule for domestic lawyers (as an ABA Model Rule now envisions), which would enable them to practice in house for their employer/client in the US; and
(b) to allow foreign lawyers to be admitted pro hac vice in a matter at a judge's discretion and with the active participation of US counsel. Recall that one of Conrad Black's trial lawyers at his Chicago federal trial was Canadian as is Black.
Here is a link to a debate on these proposals. In particular take a look at the exchange between Stephen Gillers and Larry Fox.
More information on the Commission including documents, transcripts, articles and posted comments can be found here.
(a) to allow foreign lawyers (defined as in existing rules, like the foreign legal consultant rule) to gain admission via a US jurisdiction's in house counsel rule for domestic lawyers (as an ABA Model Rule now envisions), which would enable them to practice in house for their employer/client in the US; and
(b) to allow foreign lawyers to be admitted pro hac vice in a matter at a judge's discretion and with the active participation of US counsel. Recall that one of Conrad Black's trial lawyers at his Chicago federal trial was Canadian as is Black.
Here is a link to a debate on these proposals. In particular take a look at the exchange between Stephen Gillers and Larry Fox.
More information on the Commission including documents, transcripts, articles and posted comments can be found here.
Saturday, August 21, 2010
Very unusual sanction
The Legal Profession Blog is reporting today on a bar discipline case from North Carolina that imposes a very unusual limitation on the attorney's practice as a sanction: the attorney was banned from representing female clients.
In this case, it was proven that the attorney had attempted to have sex with clients and had made inappropriate sexual comments to clients. He was suspended for three years, but the suspension was stayed upon compliance with numerous conditions, including that the attorrney would represent female clients.
I have never heard of such a limitation before and I am not sure it is the best idea. Perhaps mandatory counseling or therapy would have been better.
In this case, it was proven that the attorney had attempted to have sex with clients and had made inappropriate sexual comments to clients. He was suspended for three years, but the suspension was stayed upon compliance with numerous conditions, including that the attorrney would represent female clients.
I have never heard of such a limitation before and I am not sure it is the best idea. Perhaps mandatory counseling or therapy would have been better.
Wednesday, August 18, 2010
Big law firms in Florida unite to fight new rules on firm websites
Eight large law firms have submitted a 66-page comment to the Florida Supreme Court objecting to Proposed Florida Bar rules for web advertising. Among other objections, the comment argues that the new rules would require law firms to spend millions of dollars redoing their existing sites, could push clients to choose law firms in other states, and violate the First Amendment. Go here for the full story.
California modifies statute of limitation for malpractice claims vs criminal defense lawyers
The California legislature, in what is believed to be the first instance of its kind in the nation, has enacted a law specifically addressed to the statute of limitations for actions by wrongfully-convicted persons against their attorneys. When proof of innocence is an element of the claim, the new law sets the time limit at two years from the date of post-conviction exoneration.
Go to the Ethical Quandary blog for more information.
Go to the Ethical Quandary blog for more information.
Ethical issues related to the debate over the NYC Mosque
Here is a link to an interesting discussion on ethical issues related to the litigation over the attempts to build a mosque in New York City.
Wednesday, August 11, 2010
How not to practice law: pay your employees "under the table"
Here is a new addition to our running commentary on how NOT to practice law. For the most recent updated list of links on this topic go here.
The Legal Profession Blog is reporting today that a Massachusetts attorney has been suspended because he agreed to pay one of his employees "under the table." The Court found that by not reporting to state and federal authorities the income paid to his employee, the respondent knowingly engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Mass. R. Prof. C. 8.4(c).
In this case, the lawyer asked his new employee to sign a W-4 form, but the employee said she would prefer not to because she wanted to maintain her MassHealth benefits. In other words, the employee wished to hide her income from the state authorities so that she could continue to receive MassHealth benefits for which she otherwise might not be qualified. Understanding this, the lawyer agreed to not report the employee’s income to the state and federal authorities and paid her weekly in cash for about seven months.
Given that the neat arrangement was a secret between the attorney and the employee, you wonder how did the state find out about the misconduct, eh?
Eventually, the attorney terminated the employee's employment. Given that he had never reported her employment to begin with, she was not eligible for unemployment benefits, but, at her request, the lawyer made the appropriate payments to the state unemployment commission and acknowledged her status as a former employee. It didn't take long for the Massachusetts Attorney General’s Office to put two and two together and the lawyer was hit with a civil penalty of $2,000 and now a suspension.
The Legal Profession Blog is reporting today that a Massachusetts attorney has been suspended because he agreed to pay one of his employees "under the table." The Court found that by not reporting to state and federal authorities the income paid to his employee, the respondent knowingly engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Mass. R. Prof. C. 8.4(c).
In this case, the lawyer asked his new employee to sign a W-4 form, but the employee said she would prefer not to because she wanted to maintain her MassHealth benefits. In other words, the employee wished to hide her income from the state authorities so that she could continue to receive MassHealth benefits for which she otherwise might not be qualified. Understanding this, the lawyer agreed to not report the employee’s income to the state and federal authorities and paid her weekly in cash for about seven months.
Given that the neat arrangement was a secret between the attorney and the employee, you wonder how did the state find out about the misconduct, eh?
Eventually, the attorney terminated the employee's employment. Given that he had never reported her employment to begin with, she was not eligible for unemployment benefits, but, at her request, the lawyer made the appropriate payments to the state unemployment commission and acknowledged her status as a former employee. It didn't take long for the Massachusetts Attorney General’s Office to put two and two together and the lawyer was hit with a civil penalty of $2,000 and now a suspension.
Tuesday, August 10, 2010
Three cases on the consequences of improper speech by judges and attorneys
Law.com reported yesterday that an Atlantic County, New Jersey, Superior Court Judge has been hit with ethics charges for allegedly launching into a tirade against an unrepresented family court litigant who complained about a child-visitation schedule he ordered. Go here for the full story. In the complaint, Advisory Committee on Judicial Conduct counsel alleged that the heated invective called into question Baker's ability to remain impartial.
Meanwhile, the Chicago Daily Law Bulletin is reporting today of case in which a convicted murderer has asked the Illinois Supreme Court to order a new sentencing hearing because the sentencing judge called him a derogatory term for gay men in court before sentencing him to more than a century behind bars. In his petition for leave to appeal, the defendant contends that the utterance of the derogatory slur used to describe gay men was "indicative of the sentencing judge's abandonment of impartiality in the sentencing process."
Finally, Law.com reported a few days ago (here) that a Florida state appeals court has thrown out a $1.4 million jury verdict because of "inflammatory and prejudicial comments" made in court by the plaintiffs attorney. Go here for the court's opinion. The Court concluded that the attorney engaged in "improper litigation tactics" that went well beyond "partisan zeal" and that "indisputably require reversal."
Meanwhile, the Chicago Daily Law Bulletin is reporting today of case in which a convicted murderer has asked the Illinois Supreme Court to order a new sentencing hearing because the sentencing judge called him a derogatory term for gay men in court before sentencing him to more than a century behind bars. In his petition for leave to appeal, the defendant contends that the utterance of the derogatory slur used to describe gay men was "indicative of the sentencing judge's abandonment of impartiality in the sentencing process."
Finally, Law.com reported a few days ago (here) that a Florida state appeals court has thrown out a $1.4 million jury verdict because of "inflammatory and prejudicial comments" made in court by the plaintiffs attorney. Go here for the court's opinion. The Court concluded that the attorney engaged in "improper litigation tactics" that went well beyond "partisan zeal" and that "indisputably require reversal."
Friday, August 6, 2010
Another opinion on whether a conviction should be reversed because of prosecutor's comments
A few days ago (here), I commented on a new case in which the court reversed a conviction because of comments made by the prosecutor. Now comes another opinion from a different division of the appellate court in which the court rejects a similar claim. This new case is called People v Chester and is available here.
Are the cases consistent? You be the judge.
In the case that reversed the conviction, the court found that the prosecutor's remarks were offered to draw the jury’s attention to defendant’s decision to exercise right not to testify. Here is what the prosecutor said:
“Have you heard any evidence that he didn’t know they were the police?” . . . “You didn’t hear anything from that witness stand. You didn’t hear any evidence that he didn’t know they were the police."
In the case announced today, the court found that at least part of the prosecutor's statement was improper, but then concluded taht the error did not deny defendant a fair and impartial trial. Here is what the prosecutor said:
"What did the defendant do? Well, we have heard testimony from the officer and the officer testified hasn't been refuted or questioned in any way, you haven't heard any other testimony to refute what the officer said ..."
Are the cases consistent? You be the judge.
In the case that reversed the conviction, the court found that the prosecutor's remarks were offered to draw the jury’s attention to defendant’s decision to exercise right not to testify. Here is what the prosecutor said:
“Have you heard any evidence that he didn’t know they were the police?” . . . “You didn’t hear anything from that witness stand. You didn’t hear any evidence that he didn’t know they were the police."
In the case announced today, the court found that at least part of the prosecutor's statement was improper, but then concluded taht the error did not deny defendant a fair and impartial trial. Here is what the prosecutor said:
"What did the defendant do? Well, we have heard testimony from the officer and the officer testified hasn't been refuted or questioned in any way, you haven't heard any other testimony to refute what the officer said ..."
Tuesday, August 3, 2010
WSJ article on lawyer suicides
In the wake of the July 15 suicide of partner in the Chicago firm Reed Smith, the Wall Street Journal Law Blog has published a short article and a summary of this article from "American Lawyer" by Steven Harper, a former Kirkland & Ellis partner turned blogger and adjunct professor.
Unfortunately, suicides among lawyers are not rare. In fact, a report distributed at the annual meeting of the ABA Center for Professional Responsibility last May states that lawyers suffer depression, commit suicide & abuse alcohol and drugs at approximately twice the rate of the general population.
Unfortunately, suicides among lawyers are not rare. In fact, a report distributed at the annual meeting of the ABA Center for Professional Responsibility last May states that lawyers suffer depression, commit suicide & abuse alcohol and drugs at approximately twice the rate of the general population.
Sunday, August 1, 2010
Illinois Court of Appeals reverses conviction because of prosecutor's comments
Just about a month ago, the Illinois Court of Appeals (4th division) issued an opinion in which it took the unusual step of reversing a conviction because of certain comments made by the prosecutor during summation. The case is called People of Illinois v Roderick Smith and it is available here.
In a key passage of the opinion, the court concludes:
In this case, . . . we see no purpose for the prosecutor's remarks other than to draw the jury’s attention to defendant’s decision to exercise his federal and state constitutional right not to testify . . . By overruling defense counsel's objections, the trial court in effect permitted the jury to infer defendant's guilt from his failure to present evidence in his own behalf.
I have in the past criticized the court for giving prosecutors "a pass" on conduct like this (see here). I am glad to see the court took a different approach to the issue this time around.
In a key passage of the opinion, the court concludes:
In this case, . . . we see no purpose for the prosecutor's remarks other than to draw the jury’s attention to defendant’s decision to exercise his federal and state constitutional right not to testify . . . By overruling defense counsel's objections, the trial court in effect permitted the jury to infer defendant's guilt from his failure to present evidence in his own behalf.
I have in the past criticized the court for giving prosecutors "a pass" on conduct like this (see here). I am glad to see the court took a different approach to the issue this time around.
Wednesday, July 28, 2010
On the difficulty of imposing consistent sanctions, again
Law.com is reporting today that a nine-member District of Columbia Court of Appeals Board on Professional Responsibility has issued a split recommendation on sanctions for the misconduct of a former assistant U.S. Attorney for the District of Columbia. Four members recommended disbarment, three recommended a three-year suspension, and two recommended a one-year suspension. Because none of the recommendations was in the majority, the final decision will be up to the D.C. Court of Appeals. For a copy of the the board’s report and recommendation go here. For the full story from Law.com, go here.
Sanctions for conduct outside practice of law
What sanctions would you impose for the following conduct?
"Lawyer X left work, consumed alcohol, then fled from the police and ran eight red lights and stop signs while exceeding 100 mph. He then intentionally rammed another vehicle occupied by others in an attempt to cause great bodily injury, and fled the scene of the collision without stopping. Eventually, Lawyer X pled guilty to felony evading while driving recklessly, misdemeanor driving under the influence of alcohol/drugs, misdemeanor hit and run with property damage, and an amended felony charge of battery."
In the actual case, Lawyer X was suspended for one year and one day. What do you think: too much, too little, just right?
"Lawyer X left work, consumed alcohol, then fled from the police and ran eight red lights and stop signs while exceeding 100 mph. He then intentionally rammed another vehicle occupied by others in an attempt to cause great bodily injury, and fled the scene of the collision without stopping. Eventually, Lawyer X pled guilty to felony evading while driving recklessly, misdemeanor driving under the influence of alcohol/drugs, misdemeanor hit and run with property damage, and an amended felony charge of battery."
In the actual case, Lawyer X was suspended for one year and one day. What do you think: too much, too little, just right?
Florida case asks whether inadequate funding of public defender's office results in violation of consitituional rights; Michigan says no.
Here is a link to a comment posted in the Crim Law Prof Blog discussing State v. Public Defender, Eleventh Judicial Circuit, 12 So. 3d 798 (Fla. 3d DCA 2009), review granted, No. SC09-1181 (Fla. May 19, 2010), a case to be heard by the Florida Supreme Court that asks whether the limitations imposed by inadequate public funding of a Public Defender's office results in a violation of the constitutional rights of the defendants the PDs represent.
In this case, the Public Defender's office of Florida's 11th district asked the court to be relieved of its obligation to be appointed to represent all future non-capital felony cases because the office's inadequate funding resulted in such an overload of cases for each individual lawyer that they felt they were not able to comply with legal and ethical duties to the clients. The lower court granted the request and the case is now under review.
Interestingly, the Missouri public defender's office has also decided not to take any new cases (here).
In a similar case, the Michigan Supreme Court recently reversed itself and threw out a lawsuit that was aimed at holding the state responsible for failure to provide adequate funding to hire lawyers for poor people accused of crimes. Go here for that story.
Thanks to the Legal Ethics Forum for the information.
In this case, the Public Defender's office of Florida's 11th district asked the court to be relieved of its obligation to be appointed to represent all future non-capital felony cases because the office's inadequate funding resulted in such an overload of cases for each individual lawyer that they felt they were not able to comply with legal and ethical duties to the clients. The lower court granted the request and the case is now under review.
Interestingly, the Missouri public defender's office has also decided not to take any new cases (here).
In a similar case, the Michigan Supreme Court recently reversed itself and threw out a lawsuit that was aimed at holding the state responsible for failure to provide adequate funding to hire lawyers for poor people accused of crimes. Go here for that story.
Thanks to the Legal Ethics Forum for the information.
Friday, July 9, 2010
Proposed new rules re online advertising criticized in Florida
The ABA Journal.com is reporting that "[s]tringent new Florida Bar rules on attorney online advertising have ignited a firestorm, attracting criticism from a sweeping array of groups," including law firms, the American Civil Liberties Union and the FTC. Go here for the full story.
UPDATE: 7/11/10: Here is a story from Law.com on how Florida's largest law firms are starting to band together to protest the regulations, largely on First Amendment grounds.
UPDATE: 7/11/10: Here is a story from Law.com on how Florida's largest law firms are starting to band together to protest the regulations, largely on First Amendment grounds.
Fools for clients....
Have you ever heard the expression "a lawyer who represents him or herself has a fool for a client"?
Here's a new Ninth Circuit case that puts a slightly different spin on the notion of fools for clients even though they were not lawyers. In US v. Johnson, the trial judge conducted a hearing and "practically begged [the defendants] to accept counsel but they refused." The court then concluded that "[t]he record clearly shows that the defendants are fools, but that is not the same as being incompetent."
Thanks to the Legal Ethics Forum for the information and the link to the opinion.
Here's a new Ninth Circuit case that puts a slightly different spin on the notion of fools for clients even though they were not lawyers. In US v. Johnson, the trial judge conducted a hearing and "practically begged [the defendants] to accept counsel but they refused." The court then concluded that "[t]he record clearly shows that the defendants are fools, but that is not the same as being incompetent."
Thanks to the Legal Ethics Forum for the information and the link to the opinion.
Sanctions for improper comments before the jury and conduct during trial
Last month a jury awarded $8 million in compensatory damages (see here) in a case against pharmaceutical company Merck in a trial related to injuries caused by its prescription drug Fosamax.
Today, Pharmalot is reporting that the plaintiff's attorney is facing sanctions for his behavior during the trial and certain comments during closing arguments. The court's order imposing the sanctions is availble here.
The order states that “[d]uring the trial of this hard fought case, Mr. Douglas repeatedly acted in an inappropriate manner before the jury and made several improper and/or factually incorrect arguments in summation after having been admonished.” Among other things, the order states that the attorney claimed the FDA has an “incestuous” relationship with drugmakers and offers cursory reviews and expedited approvals “in exchange” for funding, a reference to the user fees industry pays the agency.
Quite frankly, I don't have much of a problem with that statement.
But the story does not end there. There were other, more important, problems such as the fact that, according the the report, the attorney "misstated a report submitted as evidence by Merck; mentioned punitive damages when he wasn’t supposed to do so; improperly injected his own opinion concerning the evidence and improperly referred to adverse event reports." Some of these are clearly violations of duties in ABA Model Rule 3.4.
In addition, the order states that the attorney engaged in improper conduct for “repeatedly disparaging defense witnesses and generally acting rudely to defense counsel in a manner that cannot be fully captured in the record: using sarcasm, gestures, imitations, mockery, singing, derogatory tones, laughing, and admittedly ‘fooling around’ and ‘making fun.’”
Today, Pharmalot is reporting that the plaintiff's attorney is facing sanctions for his behavior during the trial and certain comments during closing arguments. The court's order imposing the sanctions is availble here.
The order states that “[d]uring the trial of this hard fought case, Mr. Douglas repeatedly acted in an inappropriate manner before the jury and made several improper and/or factually incorrect arguments in summation after having been admonished.” Among other things, the order states that the attorney claimed the FDA has an “incestuous” relationship with drugmakers and offers cursory reviews and expedited approvals “in exchange” for funding, a reference to the user fees industry pays the agency.
Quite frankly, I don't have much of a problem with that statement.
But the story does not end there. There were other, more important, problems such as the fact that, according the the report, the attorney "misstated a report submitted as evidence by Merck; mentioned punitive damages when he wasn’t supposed to do so; improperly injected his own opinion concerning the evidence and improperly referred to adverse event reports." Some of these are clearly violations of duties in ABA Model Rule 3.4.
In addition, the order states that the attorney engaged in improper conduct for “repeatedly disparaging defense witnesses and generally acting rudely to defense counsel in a manner that cannot be fully captured in the record: using sarcasm, gestures, imitations, mockery, singing, derogatory tones, laughing, and admittedly ‘fooling around’ and ‘making fun.’”
Friday, July 2, 2010
How not to practice law update
Here is an update on the how not to practice law list so far (each item is a link to its own post/story):
ask client to pay fees with drugs
insult the judge (preferably in writing)
write a bad brief
don't ever read anything before publishing it in the press (if you are lucky it will have a racist statement in it)
if you make a mistake, lie to cover it up
pay your bar dues with a check from your client's account
convince clients to give you title of their house so they avoid foreclosure, then get them evicted
let the client dictate (bad) strategy
ask client to pay fees with sex
park in the handicapped parking spot
lie
get married when you are already married
show up to court drunk
ask client to pay fees with drugs
insult the judge (preferably in writing)
write a bad brief
don't ever read anything before publishing it in the press (if you are lucky it will have a racist statement in it)
if you make a mistake, lie to cover it up
pay your bar dues with a check from your client's account
convince clients to give you title of their house so they avoid foreclosure, then get them evicted
let the client dictate (bad) strategy
ask client to pay fees with sex
park in the handicapped parking spot
lie
get married when you are already married
show up to court drunk
have affair with married woman, then agree to represent her husband in divorce
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
take more work than you can handle
lie to the disciplinary committee
How not to practice law: ask client to pay fees with drugs
Here is a new addition to my on-going list of real stories that illustrate some relatively simple/straighforward things you should not do... or, as I like to call it, my how not to practice law examples.
The Legal Profession blog is reporting today that a laywer in California has been suspended for two years after he was convicted of one count of felony cocaine possession after it was shown that he accepted crack cocaine from a client as payment of a $175 bill. To be reinstated, the lawyer will also have to show he successfully completed a rehabilitation program and will have to pass the MPR Exam again.
The Legal Profession blog is reporting today that a laywer in California has been suspended for two years after he was convicted of one count of felony cocaine possession after it was shown that he accepted crack cocaine from a client as payment of a $175 bill. To be reinstated, the lawyer will also have to show he successfully completed a rehabilitation program and will have to pass the MPR Exam again.
Georgia does not invalidate certificate of merit requirement; Washington does
A few days ago, I argued against rules that require a plaintiff in a malpractice action to file a "certificate of merit" with the complaint. See here. The Legal Ethics Forum is now reporting that the the Supreme Court of Georgia has joined New Jersey in recognizing the validity of this type of requirement. The case is called Walker v Cromartie and it is available here. The court rules that it's not unconstitutional for the state to require professional malpractice plaintiffs (even indigent ones) to file expert declarations with the complaint.
Interestingly, this news item comes at the same time it is being reported that the Supreme Court of Washington has ruled a 90-day notice requirement in medical malpractice cases unconstitutional. The same court struck down the certificate of merit requirement last September. Seattlepi.com has the story. (Thanks to the TortProf Blog for the info and the link.)
Interestingly, this news item comes at the same time it is being reported that the Supreme Court of Washington has ruled a 90-day notice requirement in medical malpractice cases unconstitutional. The same court struck down the certificate of merit requirement last September. Seattlepi.com has the story. (Thanks to the TortProf Blog for the info and the link.)
More comments on the issue of privilege and the unlicensed attorney
Go here for Prof. Stephen Gillers follow-up comments on the opinion holding that Gucci can't claim privilege over communications with one of its in-house lawyers.
Wednesday, June 30, 2010
Can client claim privilege if client does not know his attorney is not licensed? -- UPDATED
A federal court magistrate in New York has decided that information shared with someone the client mistakenly thought was a licensed lawyer is not protected by the attorney/client privilege.
In this case, a trademark infringement claim by Gucci America Inc. against Guess Inc., Guess sought discovery of Gucci's communications with its in-house counsel Jonathan Moss, who was not licensed to practice law in any state at the time. He had been a member of the California bar until 1996 or 1997, but then became inactive. Gucci claimed the communications were protected by the attorney-client privilege but the magistrate disagreed.
In his order, the magistrate states that Gucci cannot "cloak itself under a veil of ignorance" to avoid handing over to a competitor communications with its former chief in-house counsel and held that Gucci could not justify its "mistaken belief" since the company "was plainly in a position to confirm the extent of [Mr. Moss'] qualifications as a legal professional and failed to do so."
Over at the Legal Ethics Forum Prof. Stephen Gillers argues that the decision is wrong because arguably "Gucci officers acted reasonably. The fact that they could easily have discovered [the lawyer's] inactive status (stressed in the opinion and by Guess?) doesn't mean they were unreasonable in accepting that he was a lawyer under the facts of the case. And a lawyer can be inactive one place and active elsewhere."
I agree with this, up to a point. It depends on what the client knew and when. If they knew the guy was not an attorney and confided in him anyway, I don't think the client has a right to then claim the privilege. But if they were, as Prof. Gillers points out, reasonable and really did not know of the attorney's inactive status, I would agree the client should be given the benefit of the privilege. Remember that the attorney client relationship can arise out of a misunderstanding - when the client believes there is a relationship because the attorney was not clear about whether he or she would accept the representation. (remember the Togstad case?)
Following that same line of reasoning, a client should be allowed the benefit of the relationship (the privilege) if the client reasonably believed the attorney was an attorney and that they (client and attorney) had a professional relationship.
Now that the real status of the lawyer is known, another question arises. What if the court takes the magistrate's recommendation and rules against Gucci; can Gucci sue the attorney for malpractice for having hurt Gucci's case because he was negligent in handling his licensing requirements. And, if so, can the attorney claim comparative negligence because Gucci failed to institute a policy to check on the licensing status of its in-house attorneys?
The magistrate's order is available here. For more on this story go to Law.com.
UPDATE #1 (July, 2010): Go here for Prof. Stephen Gillers follow-up comments on the opinion holding that Gucci can't claim privilege over communications with one of its in-house lawyers.
UPDATE #2 (Jan 2011): The magistrate's decision holding that information shared with someone the client mistakenly thought was a licensed lawyer was not protected by the attorney/client privilege was overturned. See here.
In this case, a trademark infringement claim by Gucci America Inc. against Guess Inc., Guess sought discovery of Gucci's communications with its in-house counsel Jonathan Moss, who was not licensed to practice law in any state at the time. He had been a member of the California bar until 1996 or 1997, but then became inactive. Gucci claimed the communications were protected by the attorney-client privilege but the magistrate disagreed.
In his order, the magistrate states that Gucci cannot "cloak itself under a veil of ignorance" to avoid handing over to a competitor communications with its former chief in-house counsel and held that Gucci could not justify its "mistaken belief" since the company "was plainly in a position to confirm the extent of [Mr. Moss'] qualifications as a legal professional and failed to do so."
Over at the Legal Ethics Forum Prof. Stephen Gillers argues that the decision is wrong because arguably "Gucci officers acted reasonably. The fact that they could easily have discovered [the lawyer's] inactive status (stressed in the opinion and by Guess?) doesn't mean they were unreasonable in accepting that he was a lawyer under the facts of the case. And a lawyer can be inactive one place and active elsewhere."
I agree with this, up to a point. It depends on what the client knew and when. If they knew the guy was not an attorney and confided in him anyway, I don't think the client has a right to then claim the privilege. But if they were, as Prof. Gillers points out, reasonable and really did not know of the attorney's inactive status, I would agree the client should be given the benefit of the privilege. Remember that the attorney client relationship can arise out of a misunderstanding - when the client believes there is a relationship because the attorney was not clear about whether he or she would accept the representation. (remember the Togstad case?)
Following that same line of reasoning, a client should be allowed the benefit of the relationship (the privilege) if the client reasonably believed the attorney was an attorney and that they (client and attorney) had a professional relationship.
Now that the real status of the lawyer is known, another question arises. What if the court takes the magistrate's recommendation and rules against Gucci; can Gucci sue the attorney for malpractice for having hurt Gucci's case because he was negligent in handling his licensing requirements. And, if so, can the attorney claim comparative negligence because Gucci failed to institute a policy to check on the licensing status of its in-house attorneys?
The magistrate's order is available here. For more on this story go to Law.com.
UPDATE #1 (July, 2010): Go here for Prof. Stephen Gillers follow-up comments on the opinion holding that Gucci can't claim privilege over communications with one of its in-house lawyers.
UPDATE #2 (Jan 2011): The magistrate's decision holding that information shared with someone the client mistakenly thought was a licensed lawyer was not protected by the attorney/client privilege was overturned. See here.
Georgia Supreme Court reverses conviction and asks lower court to determine validity of state's public defenders system
In an opinion that once again raises concerns about the state's shortage of funds for indigent capital defense, a divided Georgia Supreme Court has sent a death penalty case back to the trial court to determine if a systemic breakdown in the state's public defender system deprived the defendant of counsel. More on this story on Law.com and the Legal Ethics Forum.
Suspension for insulting the judge
It is unfortunately no secret that not all judges are competent or fair. It is not uncommon to read opinions disciplining judges or allegations of corruption. Yet, what is the best way to deal with the situation? How should a lawyer appearing before a court address a problem with the judge? That is a very difficult question and not an easy decision to make. Sometimes an attorney must react even if it means risking being found in contempt. But there are obvious risks involved. Tread carefully.
Here is an example. The Legal Profession Blog is reporting today that the Illinois Review Board has recommended a six-month suspension for an attorney who made disparaging remarks to a judge. The attorney apparently was angry about the judge's decision to summarily place a fourteen year old child with someone he (the lawyer) claimed to be an addict. In a letter to the judge, the lawyer stated that "As an officer of the court, I must bluntly state that you appear to have serious mental issues involving extreme narcissism and illusions of grandiosity which effectively interferes with your ability to act as a Judge. I am certain this is the opinion of many other lawyers who are acquainted with you. I am aware of your tendency toward self-promotion and your blatant insinuation that you somehow have a superior ability to ascertain peremptorily and without the presentation of appropriate evidence the best interests of children. Do you in any manner accept the reality of the jeopardy in which you placed this child? Is it possible that you could apologize to my client, who has had custody of this child since birth and suffered weeks of sleepless nights wondering whether her child would return safely from her substance addicted and irresponsible former husband? Are you capable of self-examination, or do you simply react negatively and defensively to any suggestion that you are incapable of error?"
Although portions of the letter are improper, I am not sure I would have imposed a six month suspension for it. Unfortunately, this was not an isolated incident. The lawyer reportedly also insulted administrative law judge in a different case.
The opinion is available here.
Here is an example. The Legal Profession Blog is reporting today that the Illinois Review Board has recommended a six-month suspension for an attorney who made disparaging remarks to a judge. The attorney apparently was angry about the judge's decision to summarily place a fourteen year old child with someone he (the lawyer) claimed to be an addict. In a letter to the judge, the lawyer stated that "As an officer of the court, I must bluntly state that you appear to have serious mental issues involving extreme narcissism and illusions of grandiosity which effectively interferes with your ability to act as a Judge. I am certain this is the opinion of many other lawyers who are acquainted with you. I am aware of your tendency toward self-promotion and your blatant insinuation that you somehow have a superior ability to ascertain peremptorily and without the presentation of appropriate evidence the best interests of children. Do you in any manner accept the reality of the jeopardy in which you placed this child? Is it possible that you could apologize to my client, who has had custody of this child since birth and suffered weeks of sleepless nights wondering whether her child would return safely from her substance addicted and irresponsible former husband? Are you capable of self-examination, or do you simply react negatively and defensively to any suggestion that you are incapable of error?"
Although portions of the letter are improper, I am not sure I would have imposed a six month suspension for it. Unfortunately, this was not an isolated incident. The lawyer reportedly also insulted administrative law judge in a different case.
The opinion is available here.
Monday, June 28, 2010
Improper comments?
The following two paragraphs are from actual statements made in Cook County Court in Illinois. Are they examples of acceptable, harmless rhetoric or should they be considered improper?
The word ‘strict’ in the phrase ‘strict liability’ does not mean anything it is just a name! It is created to intimidate people, it is self-made invalid authority, it is meant to implant in people undeserved and unjustified respect to the ordinance built on fear and misunderstanding but empty inside and not applicable in my case.
-------
Robbery, it is a good business as it is something for nothing – a pure gain. Germans do not do it anymore after their discouraging experience 65 years ago (1945) as it is too dangerous now and people are watching them. Therefore they retreated to more subtle ways such as cheating, lying and acting dishonestly under the cover of law, usually as lawyers, exploiting us on this way.
Thanks to On the Record in Cook County for the quotes
The word ‘strict’ in the phrase ‘strict liability’ does not mean anything it is just a name! It is created to intimidate people, it is self-made invalid authority, it is meant to implant in people undeserved and unjustified respect to the ordinance built on fear and misunderstanding but empty inside and not applicable in my case.
-------
Robbery, it is a good business as it is something for nothing – a pure gain. Germans do not do it anymore after their discouraging experience 65 years ago (1945) as it is too dangerous now and people are watching them. Therefore they retreated to more subtle ways such as cheating, lying and acting dishonestly under the cover of law, usually as lawyers, exploiting us on this way.
Thanks to On the Record in Cook County for the quotes
Friday, June 25, 2010
NLJ editorial on the need to expand legal aid services
"With the legal needs of the poor rising in volume and intensity, more access to legal aid is a needed stop on the road to economic recovery." This is the start of an editorial published today in the National Law Journal online, available here.
Wednesday, June 23, 2010
More on the Supreme Court's decision in Holder v. HLP and possible constraints on attorney advice
Yesterday I said I would continue to update the list of links to comments on the recent decision by the Supreme Court in Holder by simply adding them to a previous post. But I want to point out a particularly interesting one here.
In a short comment over at the Legal Ethics Forum, Prof. Renee Newman Knake ponders on the applicability of the ruling in Holder to the more general context of lawyering. (She also provides lots of links to other articles that I had not seen yet.) This is a very important issue for all attorneys, but particularly for those who advise organizations involved in social activism and political activities.
She points out that because the Court's opinion upholds the ban on "material support" only for a limited scope of proposed speech, "if confronted with the specific question about the degree to which an attorney's legal advice to a foreign terrorist organization could be constitutionally banned, [it is possible that] the Court would reach a different conclusion." However, she also points out that "[i]n the meantime . . . it seems inevitable that HLP's holding will have a chilling effect on attorney advice, as Justice Breyer suggests in his dissent."
On the other hand, she also reminds us that the Court has in the past expressed reluctance to allow restrictions on attorney advice. For example, she points out that in Legal Services Corp. v. Velazquez the Court stated that “[r]estricting … attorneys in advising their clients and in presenting arguments and analyses to the courts distorts the legal system by altering the traditional role of the attorneys.” Velázquez was a 5-4 decision about a federal statute prohibiting attorneys for the Legal Services Corporation from challenging the validity of a state or federal statute.
I like the cite from the opinion in Velázquez but we need to contrast it with the approach taken by the ninth circuit in Legal Aid Services of Oregon v. LSC, the more recent case upholding restrictions on some types of practice by organizations receiving aid from the Legal Services Corp. (available here). In fact, if this case goes before the Supreme Court (I have not checked to see if it was appealed), it might give the "new" Supreme Court a chance to revise or even 'take back' what it said in Velázquez.
It will be interesting to see what view the Supreme Court takes if confronted with the question of whether the ban on material support should apply to legal advocacy.
In a short comment over at the Legal Ethics Forum, Prof. Renee Newman Knake ponders on the applicability of the ruling in Holder to the more general context of lawyering. (She also provides lots of links to other articles that I had not seen yet.) This is a very important issue for all attorneys, but particularly for those who advise organizations involved in social activism and political activities.
She points out that because the Court's opinion upholds the ban on "material support" only for a limited scope of proposed speech, "if confronted with the specific question about the degree to which an attorney's legal advice to a foreign terrorist organization could be constitutionally banned, [it is possible that] the Court would reach a different conclusion." However, she also points out that "[i]n the meantime . . . it seems inevitable that HLP's holding will have a chilling effect on attorney advice, as Justice Breyer suggests in his dissent."
On the other hand, she also reminds us that the Court has in the past expressed reluctance to allow restrictions on attorney advice. For example, she points out that in Legal Services Corp. v. Velazquez the Court stated that “[r]estricting … attorneys in advising their clients and in presenting arguments and analyses to the courts distorts the legal system by altering the traditional role of the attorneys.” Velázquez was a 5-4 decision about a federal statute prohibiting attorneys for the Legal Services Corporation from challenging the validity of a state or federal statute.
I like the cite from the opinion in Velázquez but we need to contrast it with the approach taken by the ninth circuit in Legal Aid Services of Oregon v. LSC, the more recent case upholding restrictions on some types of practice by organizations receiving aid from the Legal Services Corp. (available here). In fact, if this case goes before the Supreme Court (I have not checked to see if it was appealed), it might give the "new" Supreme Court a chance to revise or even 'take back' what it said in Velázquez.
It will be interesting to see what view the Supreme Court takes if confronted with the question of whether the ban on material support should apply to legal advocacy.
Tuesday, June 22, 2010
Sentencing hearing video
Last May, I came across this video just as it became public over the internet. I mentioned it in class briefly because it raises many interesting questions but, unfortunately, I did not have enough time to discuss it in detail.
The video shows a sentencing hearing in Nevada. The defendant is a woman accused of "lewdness with a child under the age of 14" for either allowing or encouraging (I don't know) a 13 year old to touch her breasts over her clothes. Other reports I have seen on the case say she also kissed the boy and offered to have sex with him but that is not mentioned during the hearing. The crime of "lewdness" is a felony in Nevada and carries a mandatory minimum sentence of life in prison with the possibility of parole after ten years.
When I first saw the video back in May I was just about to discuss the issue of whether it would be ethical for an attorney to remind jurors of their authority to ignore the law if they thought the law was unfair (ie, "jury nullification"). This hearing played right into my hands.
One initial question here is, of course, whether a mandatory sentence of life in prison for this crime is unreasonable - particularly when the mandatory minimum sentence for murder is 50 years. That is something that can be debated but it is not the question I am most interested in.
The issues I think the video allows me to explore are these:
The limits prosecutorial discretion. Listen carefully to the comments the judge makes directly to the defendant after he imposes sentence. It seems to me he is saying he can't justify what he has just done. "I can't figure out" why the prosecutor charged you with the crime or did not offer a plea bargain agreement, he says. What he can't figure out is why some prosecutors exercise discretion in some cases and not in others. (For a related discussion on prosecutorial discretion go here.)
This, it seems to me, allows us to address the notion of prosecutorial discretion and the duties of the prosecutor under Rule 3.8. If the prosecutor is a minister of justice, is it justice not to offer a plea bargain in this case? Would you have charged the defendant with the crime? Would you have made a plea offer? These are the kinds of questions I want to ask my students.
I would also like to ask about the role of the judge. It seems to me that the judge felt the system did not work the way it should have in this case, but that his hands were tied. Do you like what the judge did? What else could the judge have done? What would you have done? To what extent can or should a judge operate based on his personal view on whether the system has broken down?
Then there are the questions regarding the defendant's lawyer. First, there is the question of jury nullification. Would it have been ethical for defense counsel to ask the jury to disregard the law? For some materials on jury nullification go to the Jurors for Justice - Jury Nullification Website and the Fully Informed Jury Association Website (in particular, take a look at the section called "If you are called for Jury Duty.")
Second, why did the lawyer wait until the sentencing hearing to make a constitutional argument?
Finally, I would like to make a specific comment on the defendant's lawyer's oral argument. Whether the judge in this case felt his hands were tied or not, to his credit, he was interested in what defense counsel had to say. He was listening to her argument. When she argued that the legislature never intended the statute to be applied to a case like this one, you can hear the judge clearly ask "Why?". At that point, the attorney made a horrendous mistake. She dismissed the question. She turned away a judge who was interested in what she wanted to say. If she had a slight chance to convince the judge to rule her way, that moment right there is when she blew it.
If a judge asks you a question, for God's sake answer it! And answer it then, now. The judge is interested in what you are saying now. Whatever you do, don't make a judge wait for an answer. Don't tell a judge "I'll get to that later." Never. One, because by the time you get to it, the judge may have lost interest or forgotten what the issue was at the time he or she asked the question and, two, because you run the risk that you will not get to it. The answer that could have won you the case may never be offered and it would most definitely be your own fault. In this case, listen to the argument and the judge's question. Did counsel "get to it" like she promised? I don't think so.
Here is the full video (as you probably know, if you click on the little square with the four arrows, you will be able to see it in "full screen mode"):
PS: One more thing, note that the prosecutor is not wearing a suit and that he does not stand up to address the judge. I know plenty of judges who would not like that....
The video shows a sentencing hearing in Nevada. The defendant is a woman accused of "lewdness with a child under the age of 14" for either allowing or encouraging (I don't know) a 13 year old to touch her breasts over her clothes. Other reports I have seen on the case say she also kissed the boy and offered to have sex with him but that is not mentioned during the hearing. The crime of "lewdness" is a felony in Nevada and carries a mandatory minimum sentence of life in prison with the possibility of parole after ten years.
When I first saw the video back in May I was just about to discuss the issue of whether it would be ethical for an attorney to remind jurors of their authority to ignore the law if they thought the law was unfair (ie, "jury nullification"). This hearing played right into my hands.
One initial question here is, of course, whether a mandatory sentence of life in prison for this crime is unreasonable - particularly when the mandatory minimum sentence for murder is 50 years. That is something that can be debated but it is not the question I am most interested in.
The issues I think the video allows me to explore are these:
The limits prosecutorial discretion. Listen carefully to the comments the judge makes directly to the defendant after he imposes sentence. It seems to me he is saying he can't justify what he has just done. "I can't figure out" why the prosecutor charged you with the crime or did not offer a plea bargain agreement, he says. What he can't figure out is why some prosecutors exercise discretion in some cases and not in others. (For a related discussion on prosecutorial discretion go here.)
This, it seems to me, allows us to address the notion of prosecutorial discretion and the duties of the prosecutor under Rule 3.8. If the prosecutor is a minister of justice, is it justice not to offer a plea bargain in this case? Would you have charged the defendant with the crime? Would you have made a plea offer? These are the kinds of questions I want to ask my students.
I would also like to ask about the role of the judge. It seems to me that the judge felt the system did not work the way it should have in this case, but that his hands were tied. Do you like what the judge did? What else could the judge have done? What would you have done? To what extent can or should a judge operate based on his personal view on whether the system has broken down?
Then there are the questions regarding the defendant's lawyer. First, there is the question of jury nullification. Would it have been ethical for defense counsel to ask the jury to disregard the law? For some materials on jury nullification go to the Jurors for Justice - Jury Nullification Website and the Fully Informed Jury Association Website (in particular, take a look at the section called "If you are called for Jury Duty.")
Second, why did the lawyer wait until the sentencing hearing to make a constitutional argument?
Finally, I would like to make a specific comment on the defendant's lawyer's oral argument. Whether the judge in this case felt his hands were tied or not, to his credit, he was interested in what defense counsel had to say. He was listening to her argument. When she argued that the legislature never intended the statute to be applied to a case like this one, you can hear the judge clearly ask "Why?". At that point, the attorney made a horrendous mistake. She dismissed the question. She turned away a judge who was interested in what she wanted to say. If she had a slight chance to convince the judge to rule her way, that moment right there is when she blew it.
If a judge asks you a question, for God's sake answer it! And answer it then, now. The judge is interested in what you are saying now. Whatever you do, don't make a judge wait for an answer. Don't tell a judge "I'll get to that later." Never. One, because by the time you get to it, the judge may have lost interest or forgotten what the issue was at the time he or she asked the question and, two, because you run the risk that you will not get to it. The answer that could have won you the case may never be offered and it would most definitely be your own fault. In this case, listen to the argument and the judge's question. Did counsel "get to it" like she promised? I don't think so.
Here is the full video (as you probably know, if you click on the little square with the four arrows, you will be able to see it in "full screen mode"):
PS: One more thing, note that the prosecutor is not wearing a suit and that he does not stand up to address the judge. I know plenty of judges who would not like that....
More comments on yesterday's US Supreme Court opinion
Here are two more links to comments on yesterday's Supreme Court Opinion upholding the criminalization of "material support." I will keep adding links to this post if I see more from now on.
Go here for a comment by Jonathan Turley, in which he makes the following very interesting point: "Solicitor General Elena Kagan argued the case herself, but took such an extremist position that even Roberts balked: “The government is wrong that the only thing actually at issue in this litigation is conduct” and not speech. As a limit on potential abuse, the Court insisted that only conduct directed by such groups would be covered and not “independent advocacy.” That line of distinction, however, was left maddeningly vague and will likely cause considerable uncertainty in the lower courts."
For more coverage of the case go to:
The New York Times
Law.com
Room For Debate (NY Times)
The Wall Street Journal
Blog of the Legal Times
Wall Street Journal law blog
Go here for a comment by Jonathan Turley, in which he makes the following very interesting point: "Solicitor General Elena Kagan argued the case herself, but took such an extremist position that even Roberts balked: “The government is wrong that the only thing actually at issue in this litigation is conduct” and not speech. As a limit on potential abuse, the Court insisted that only conduct directed by such groups would be covered and not “independent advocacy.” That line of distinction, however, was left maddeningly vague and will likely cause considerable uncertainty in the lower courts."
For more coverage of the case go to:
The New York Times
Law.com
Room For Debate (NY Times)
The Wall Street Journal
Blog of the Legal Times
Wall Street Journal law blog
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