Tuesday, March 4, 2014
Tigran Eldred (New England Law) has posted "Motivation Matters: Guideline 10.13 and Other Mechanisms for Preventing Lawyers from Surrendering to Self-Interest in Responding to Allegations of Ineffective Assistance in Death Penalty Cases" on SSRN. The article is forthcoming in the Hofstra Law Review. Here is the abstract:
Defense lawyers whose clients are sentenced to death are virtually guaranteed to be accused of ineffective assistance of counsel. The question is how they will respond. On one hand, lawyers alleged to be ineffective are obligated under Guideline 10.13 of the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases to continue to safeguard the interests of their former clients, a duty that includes full cooperation in appropriate legal strategies chosen to pursue the ineffectiveness claim. On the other hand, lawyers who are accused of ineffectiveness often react defensively to the allegation, reflexively viewing the claim of poor performance as an attack on their competency and reputation. To date, there has been no systematic attempt to understand how these tensions are mediated and resolved.
To fill this gap, this article explores the psychological dimensions of how lawyers can be expected to respond to allegations of ineffectiveness. Relying on empirical research into “motivated reasoning” – a phenomenon that describes the many ways in which people unconsciously seek out, interpret and recall information in a manner that is consistent with their pre-conceived wishes and desires – it argues that motivation can be expected to play a dominant role in how lawyers respond to alleged ineffectiveness. Further, because motivation exercises its power implicitly, efforts to encourage compliance with the obligations set forth in Guideline 10.13 must take into account the subtle psychological forces that influence behavior. Simply put: motivation matters.
Counsel's ethical obligations in response to an effective assistance claim is an important and often overlooked study area. Such such claims are frequent in the criminal system, and are frought with ethical landmines. Attorneys facing such a claim must answer the claim with due regard to the duty to maintain client confidentiality. Under what circumstances may an attorney reveal client confidences when responding to the ineffective assistance claim? This is a serious question attorneys and courts must address in such cases.
Professor Eldred gives criminal law attorneys much to consider when confronting a claim that representation rendered to a client has been deficient. He has highlighted important ethical considerations an attory must weigh when responding to an ineffecitve assistance claim. The paper is also useful to judges that issue orders compelling responses to such claims. I don't agree with everything Eldred has written, but on the whole, this paper covers new ground and will be useful to practicing lawyers and judges.
Wednesday, February 12, 2014
The University of Georgia School of Law is hosting its 14th Annual Legal Ethics & Professionalism Symposium on February 21, 2014, at the law school campus. The symposium is titled, "Who Are They to Judge? Ethical and Professionalism Issues Facing the Bench." Here is the description from the symposium website:
This annual legal ethics symposium is titled "Who Are They to Judge? Ethical and Professionalism Issues Facing the Bench." Members of the judiciary are facing increasing ethical challenges and being subjected to enhanced scrutiny as a result of the changing dynamics of both their jobs and the legal profession more generally. During this symposium, an impressive lineup of judges, attorneys and professors will examine three important areas in this regard: (1) judicial elections and their effect on the decision-making process; (2) collegiality, decorum, and civility between the bench and the bar; and (3) the process, results, and aftermath of investigations into alleged judicial misconduct.
Here is the link for registration and program information.
Tuesday, February 4, 2014
A Florida appellate court recently held that a motion to disqualify a judge should be granted where the judge in a divorce proceeding, sent a Facebook friend request to a litigant in the proceeding and the litigant refused the request. The case is Chace v. Loisel, No. 5D13-4449 (Fla. Dist. Ct. App., January 24, 2013).
In this case, the judge, during the divorce proceeding, "reached out" to the party by making a Facebook friend request. The party declined the request. That party later claimed the judge retaliated against her by awarding her most of the marital debt. The party filed a motion to disqualify which the trial court denied.
The appellate court wrote:
It seems clear that a judge’s ex parte communication with a party presents a legally sufficient claim for disqualification, particularly in the case where the party’s failure to respond to a Facebook “friend” request creates a reasonable fear of offending the solicitor. The “friend” request placed the litigant between the proverbial rock and a hard place: either engage in improper ex parte communications with the judge presiding over the case or risk offending the judge by not accepting the “friend” request.
Florida Judicial Ethics Advisory Committee Opinion 2009-20 provides that by designating an attorney as a Facebook friend, a judge, "reasonably conveys to others the impression that these lawyer 'friends' are in a special position to influence the judge." Florida takes a restrictive approach to judicial use of social media so the outcome in this case is not surprising.
Thursday, October 24, 2013
Writing at The Atlantic, Andrew Cohen of the Brennan Center comments on the recent New Jersey Supreme Court case State v. Miller, A-35-11 (N.J., October 2, 2013). His essay, "How Much Does a Public Defender Need to Know About a Client?" is here.
Wednesday, October 9, 2013
South Texas Law Review will host its 20th Annual Ethics Symposium, Bankruptcy: Best Practices from the Bench and Bar, on October 25, 2013 at the Garrett Townes Auditorium on the South Texas College of Law campus in Houston.
Speakers include Hon. Jeff Bohm, Hon. Karen K. Brown, Hon. Marvin Isgur, Hon. David Jones and Hon. Letitia Z. Paul, all bankruptcy judges in the Southern District of Texas, plus several leading members of the Harris County bankruptcy bar. The full program is here.
Registration information is here (repaired link).
Thursday, May 23, 2013
The Fifth Circuit Court of Appeals of Texas, located in Dallas, held last week that a trial judge's undisclosed Facebook "friendship" with the victim's father in a criminal prosecution alone does not establish grounds for recusal or disqualification. Youkers v. State of Texas, No. 05-11-01407-CR (Tex. App. -- Dallas, May 15, 2013).
Defendant in the case pled guilty to assault of his pregnant girlfriend and received a 10-year sentence suspended for 5-years plus a $500 fine. Three months, later, the State filed a motion to revoke. Defendant entered an open plea of true to the motion's allegations at the revocation hearing. The trial judge sentenced Defendant to eight-years in the state penitentary and later denied the motion for new trial. The Defedant argued on appeal that he was entitled to the new hearing because the judge and the victim's father were undisclosed Facebook "friends" and that the judge had received an improper ex parte message (one favorable to the Defendant) via Facebook from the victim's father prior to sentencing.
The court analyzed the case facts, applicable canons, and further applied the recent ABA Standing Comm. on Ethics & Prof. Responsibity, Formal Op. 462 (February 21, 2013) (authorizing judges to participate in social networking providing such participation complies with relevant ethics rules). The appellate court also examined other Texas cases involving cases where judges presided in cases where the judge had a seemingly close, public relationship with a party. For example, in Lueg v. Lueg, 976 S.W.2d 308, 311 (Tex. App--Corpus Christi 1998, pet denied), cited by the Dallas court, another intermediate appellate court held that the mere fact that a party was a former campaign manager for the judge alone was insufficient to require the judge's recusal. The court rejected Defendant's claim of actual and apparent impartiality on the record and affirmed that ground.
Not all states agree with the approach taken by the ABA (and this Texas court) on judges using social media. Last September, for example, the Florida appeals court held that a judge's Facebook friendship alone presents grounds for disqualification. Domville v. State of Florida, 103 So.3d 184 (Fla.Cir. Ct. 2012) (covered by this blog here). Florida's state judicial ethics commission had previously rendered an opinion applying a restrictive approach to social media use for judges - a different approach than the one adopted by the ABA.
The permissive approach to judicial social media use adopted by the ABA and this Texas Court requires fact-intensive analysis into the relationship between the judge and the social media friend in recusal and disqualification issues. For this reason this issue now of first impression is one likely to be revisited frequently in states applying the ABA's permissive guidelines as more judges enter the social networking world.
Sunday, May 19, 2013
Tyler, Texas attorney and State Bar of Texas President Buck Files has written an informative essay on conflicts of interest which appears in the April 2013 Voice for the Defense (page 15). The essay uses the federal case U.S. v. Lopesierra-Gutierrez, No. 07-3137 (D.C. Cir. March 1, 2013) as a starting point to highlight how important it is to be mindful of conflicts when representing defendants in criminal cases - and by extension, any client in any case. Some conflicts are waivable and some are not and knowing the difference between the to might save the practicing attorney a trip before a grievance committee a time or two.
Tuesday, April 23, 2013
On April 19, a Texas court of inquiry charged former Williamson County, Texas district attorney (and current Texas district judge) Ken Anderson with criminal contempt of court, tampering with or fabricating physical evidence and tampering with government records arising from Anderson's prosecution of Michael Morton for the murder of his wife while he was district attorney.
Quite famously it was later shown, after Morton spent 25 years in a Texas prison, that Morton did not in fact murder his wife. Over the years, there has been volumes written on this tragic miscarraige of justice - Texas Monthly's comprehensive case coverage is as good a starting place as any for the uninitiated.
In any event, the probable cause order entered by the court of inquiry's presiding judge along with the supporting findings of facts and conclusions of law are now available online here. This article in the Sunday Austin American-Statesman points out that Anderson's statute of limitations defense may be the first hurdle current Williamson County prosecutors have to clear before the charges against Anderson can be brought to a jury.
Hat Tip: Grits For Breakfast
Thursday, February 7, 2013
Professor Doug Berman at Sentencing Law & Policy commented this morning on what promises to be a very timely and important symposium upcoming at Duquesne Law School. The syposium is called "Plea Bargaining After Lafler and Frye" and will be held February 28-March 1 at Duquesne in Pittsburgh in cooperation with the Criminal Justice Section, White Collar Crimes Committee, Mid-Atlantic Region. The symposium schedule is here.
Friday, September 21, 2012
Earlier this month, a Florida appellate court held that a defendant's motion to disqualify a trial judge was legally sufficient to require disqualification where the trial judge was a Facebook friend with the prosecutor assigned to the case.
In Domville v. State of Florida, No. 4D12-556, 2012 WL 3826764 (Fla.Dist.Ct.App. Sep. 5, 2012), the defendant filed the motion to disqualify the judge alleging that the judge and prosecutor assigned to the case were Facebook friends. The trial judge denied to motion as legally insufficient.
The appellate court relied upon a 2009 Florida Judicial Ethics Advisory Committee opinion that concluded that the Florida Code of Judicial Conduct precluded a judge from both adding attorneys that appeared in their courts as friends, and allowing attorneys so appearing to add the judge as a friend. The Committee opined that such conduct violated Florida Code of Judicial Conduct, Canon 2B which prohibits judges from conveying or permitting others to convey, "the impression that they are in a special position to influence the judge." The Committee also concluded that a judge that Facebook friends an attorney "reasonably conveys to others" the impression that the attorney is in fact in a special position to influence the judge.
The appeals court quashed the trial court's order denying disqualification as a matter of law and returned the case to the trial court for further proceedings.
To date, Massachusetts and Oklahoma judicial ethics committees have joined Florida in taking a restrictive approach to judges using social media. The Massachusetts Committee's opinion on the subject goes so far as to state that a judge may friend an attorney on social media only when that judge would recuse herself if and when the friended attorney appeared before her.
Even in states where judicial ethics committees have taken a permissive approach to judicial use of social media, judges may face disqualification or recusal motions in similar circumstances. The law in this area is very new and uncertain as judges, attorneys and ethics committees develop policies and implement guidelines for judicial use of social media.
Thursday, January 6, 2011
Matter of Essien, ____A.D.3d___, 2010 N.Y. Slip Op. 06512 (1st Dep't. August 31, 2010), reminds us that no matter how easy it might be to do, a lawyer should never, repeat never, notarize a signature if he did not see the person sign the document. This lawyer did just that. He was disciplined by the 1st Department with a public censure.
Of course, notaries should also never falsely notarize a dcoument and if they do they can loose their license.
Mitchell H. Rubinstein
Sunday, October 17, 2010
In re: Cannon is an interesting case from the Supreme Court of Iowa. In a brief a lawyer admitted to plagiarism. Specifically, he copied 17 pages from an article without proper attribution. What is significant about this case is that it confirms that lawyers can face discipline for plagiarism.
Mitchell H. Rubinstein
Hat Tip: Legal Skills Prof Blog
Additional coverage on Legal Profession Prof Blog
Engagement and Closing Letters is an interesting article from the July 6, 2010 New York Law Journal. As the article explains, it is critical to draft appropriate engagement and closing letters which defined the scope of representation to avoid ethicial and disqualification issues. As the article states:
Thus, this case illustrates the value of using written engagement agreements for each new matter, even if the client is an established one. The case also implicitly recognizes the value of preparing non-engagement letters when dealing directly with unrepresented parties. An explicit communication of non-engagement is especially valuable when the law firm has formerly represented the now opposing, non-represented party. Any communications with non-represented parties should begin with a written statement that the lawyer is not representing that party, and recommending that the party retain his own attorney if he feels it is necessary.
The second case, from New Jersey, also illustrates the importance of crafting engagement letters to identify with clarity who are—and who are not—intended to be the clients in a newly forming attorney-client relationship. In Kurre v. Greenbaum, Rowe, Smith, Ravin, Davis, and Himmel, LLP, 2010 WL 2090092 (N.J. Super. Ct. App. Div., April 16, 2010), two large shareholders for Labriola Motors, Elizabeth Labriola Kurre and Michael Labriola (plaintiffs), sued Greenbaum Rowe Smith Ravin Davis & Himmel and partners thereof (Greenbaum) for individual malpractice damages arising out of a failed transaction.
Labriola Motors, a Nissan franchise, experienced financial difficulties causing Nissan to urge the company to sell to avoid termination of the franchise. Labriola Motors retained Greenbaum to represent it in a proposed sale. The retainer letter specifically advised plaintiffs and the other shareholder that because their "interests and concerns as shareholders of the Company differ in connection with the proposed transaction," each "should retain independent legal counsel."
Further, by countersigning the letter plaintiffs acknowledged "that (i) this firm will represent only the Company in connection with the proposed transaction, and (ii) this firm has advised you of your right to obtain independent legal counsel" by signing the retainer agreement. In fact, plaintiffs did retain their own counsel.
The Appellate Division affirmed summary judgment for Greenbaum on the basis that plaintiffs had no standing to sue. First, the retainer agreement plaintiffs signed precluded any consideration that Greenbaum represented them personally. Indeed, plaintiffs actually had engaged their own counsel for the entire period in question.
Second, the court held that although lawyers can in some circumstances be sued by third parties who rely on their advice, here plaintiffs were a part of the corporate client and had no right to rely on anything said by Greenbaum except to make decisions as shareholders.
Mitchell H. Rubinstein
Thursday, June 10, 2010
Matter of Stewart, ____A.D.3d_____(1st Dep't. April 15, 2010), demonstrates that an attorney employee can be disciplined for misconduct at the workplace. Here, the attorney pleaded guilty to one count of petit larceny in violation of Penal Law § 155.25, a class A misdemeanor, in full satisfaction of all charges brought against her for providing a false document. Her purpose was to receive paid leave to which she would have otherwise not been entitled. On October 10, 2008, she was sentenced to a one-year conditional discharge.The court suspended her from the practice of law for 6 months.
Mitchell H. Rubinstein
Monday, May 31, 2010
Here is a great law school hypo. Employer hires attorney. The attorney is later fired. Can his former employer assert attorney-client privilege? This is actually not a law school hypo. Rather, this issue is pending in the Southern District of New York. A New York Law Journal article about this case dated April 8, 2010 is available here. (registration required).
Law review commentary on this interesting topic would be most welcome.
Mitchell H. Rubinstein
Monday, May 17, 2010
Cloud computing is in vogue today. Everyone, including me, loves it. You do not have to worry about files taking up space on your computer or have access to your files if your using another computer. The files are stored on a server. Getting Your Head in the Cloud is an interesting April 2010 ABA Journal article which raises the question of whether there are ethical issues for lawyers to store client data in "the cloud." As the article states:
The early indications from ethics authorities are that storing client data in the cloud does not violate ethics rules, as long as the lawyer took appropriate steps to safeguard the information from inadvertent or unauthorized disclosure.
Rule 1.6 of the ABA Model Rules of Professional Conduct states that, generally, a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent or the disclosure is impliedly authorized to carry out the representation. (Rule 1.6 is generally followed by the states.)
But the comments to Model Rule 1.6 provide some leeway in applying its mandate. Comment 16, for instance, states, “A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision.” And Comment 17 states that a lawyer must take “reasonable precautions” to prevent information relating to the representation of a client from going to unintended recipients when it is being transmitted.
“If you purchase the technology and there’s a breach, you’re going to say, ‘I relied on the cloud provider,’ and the rules back you up,” says Lucian T. Pera, a partner at Adams and Reese in Memphis, Tenn., and president of the Association of Professional Responsibility Lawyers. “The rules say attorneys must act competently to safeguard information. It’s a reasonableness standard, and nothing has changed about the rules but how they apply in a changing world.”
Some recent ethics opinions reach a similar conclusion. The Arizona State Bar’s Committee on the Rules of Professional Conduct, for instance, concluded in Opinion 09-04 (issued Dec. 9, 2009), that a law firm may use an online file storage and retrieval system that enables clients to access their files over the Internet as long as the firm takes reasonable precautions to safeguard the security and confidentiality of the client’s information.
Cloud computing is here to stay. I see it no different than lawyers storing client money in bank accounts. The lawyer has to rely on the bank not stealing the money or disclosing it to a third party. Law review commentary with respect to this important issue would be most welcome.
Mitchell H. Rubinstein
Saturday, May 8, 2010
On May 4, 2010, the ABA on its web site cited to an important Minnesota ethics opinion concerning metadata. The article describes this opinion as follows:
At the end of March, Minnesota's Lawyers Professional Responsibility Board approved a new ethics opinion addressing lawyers' ethical obligations regarding metadata. Opinion No. 22, available in PDF format on the LPRB's website, addresses the three primary metadata questions: what is a lawyer's duty when sending electronic documents; what is a lawyer's duty when receiving electronic documents; and what is a lawyer's duty upon discovering confidential or privileged metadata.
On the first and third questions, Minnesota echoed the view of the majority of jurisdictions that have taken up the issue: the sending lawyer "is ethically required to act competently to avoid improper disclosure of confidential and privileged information in metadata in electronic documents," and in the event that a lawyer "receives a document which the lawyer knows or reasonably should know inadvertently contains confidential or privileged metadata, the lawyer shall promptly notify the document's sender." (LPRB Op. 22)
Mitchell H. Rubinstein
Sunday, May 2, 2010
The New York County Lawyers Association recently issued an important opinion stating that lawyers can ghost write court papers to a limited degree for pro se litigants without disclosure. opinion
An ABA New Now Blog entry about this opinion is available here.
Mitchell H. Rubinstein
Saturday, February 6, 2010
The New York Appellate Division, which regulates lawyers, recently suspended two lawyers for failing to pay income tax. Both were convicted of felonies and did not pay taxes for years. A New York Law Journal story about these unfortunate cases is available here. The First Department's rulings in Howley and Goldman can be found by clicking on the link.
Mitchell H. Rubinstein
Monday, November 23, 2009
The Ohio Employer's Law Blog raises the question whether smoking is a disability under the ADA as amended and concludes that it very well might be. That has significant public policy implications because the ADA may prevent employers from having a smoke free workplace and some local laws that require smoke free work places may conflict with the ADA. The author of this posting states:
Critically, an employee is now protected under the “regarded as” prong regardless of whether or not the impairment limits or is perceived to limit a major life activity, and regardless of whether the employer believes the individual was substantially limited in any major life activity. The coverage of this protection is extremely broad. The only exception to the “regarded as” prong is when the impairment is transitory (lasting or expected to last for six months or less) and minor. Examples of such uncovered impairments include a sprained wrist, a broken limb that is expected to heal, the common cold, and the seasonal flu. Employers do not have to make reasonable accommodations for “regarded as” disabilities, but are still prohibited from taking adverse actions because of them.
At the ABA Labor & Employment Conference last week, I had the opportunity to ask Peggy Mastroianni, EEOC Associate Legal Counsel and author of the ADAAA’s proposed regulations, if the EEOC has a position on the coverage of smoking under the ADA. Her answer was that there is no formal EEOC position. The EEOC’s silence notwithstanding, the “regarded as” prong of the new ADA is sufficiently broad to possibly encompass actions taken against employees pursuant to employer anti-smoking policies.
Frankly, I have not researched this issue and am not sure of the answer, but I would be surprised if smoking per se (as opposed to smoke related illnesses) are protected under the ADA. Law review commentary would be welcome with respect to this issue.
Mitchell H. Rubinstein