Tuesday, October 23, 2007
A legal malpractice action was brought in New York by Tennessee plaintiffs against a New York law firm. The plaintiffs contended that the Tennessee statute of limitations applied and was tolled because the defendant law firm was absent from Tennessee. The New York Court of Appeals rejected the contention: "A conclusion to the contrary would cause the statute of limitations to be tolled indefinitely...We do not believe that the Legislature intended this result..." (Mike Frisch)
Monday, October 22, 2007
A defendant was convicted at a bench trial of statutory sexual assault and corruption of a minor. The victim was "an adolescent girl...who attended the church where [the defendant] was an organist." The defendant contended that his trial counsel was ineffective because he had failed to bring out an offer from the victim's mother to drop the charges in exchange for a $5,000 payment. Further, the lawyer questioned the victim about a similar accusation she had made against her mother's former boyfriend that was later recanted. The lawyer had represented the former boyfriend in connection with that allegation. The defendant claimed that the prior representation created a conflict of interest.
On appeal of the District Court's conclusion that the ineffective assistance claims had been procedurally defaulted, the United States Court of Appeals for the Third Circuit vacated the district court and remanded for further proceedings. The district court is directed to consider whether the trial counsel was ineffective in, among other things, failing to withdraw and testify about the offer to drop the case for a payment and failing to present evidence of the mother's motivation to lie (and get the victim to do so) because she was cooperating with the government in an unrelated case. The court rejected the conflict of interest claim relating to the representation of the former boyfriend in an unrelated case. The representation "only provided [the lawyer] additional information about [the victim]; it thereby did not constitute a conflict that was prejudicial to [the defendant]." (Mike Frisch)
The North Carolina Supreme Court has adopted a mandatory program for placing escrowed funds in an interest bearing account. Lawyers retain the "complete discretion to determine whether a trust deposit is of sufficient size and duration to justify placement in a seperate...interest bearing account." The state bar must design and implement the program so that lawyers comply with the requirements by June 30, 2008. (Mike Frisch)
A criminal defendant pleaded guilty to a charge of selling cocaine. He alleged that his counsel had erroneously advised him about the effect of the conviction on his immigration status. The trial court's order denying the claim of ineffective assistance of counsel was reversed by the Court of Criminal Appeals of Tennessee and remanded for an evidentiary hearing. The court distinguished a prior case involving failure to inform a defendant of the collateral consequence of deportation from this case, which alleges that the lawyer gave incorrect advice. (Mike Frisch)
Posted by Alan Childress
Richard Lazarus (Georgetown) has posted to the SSRN Law & Soc'y: Legal Prof. journal his article, "Advocacy Matters Before and Within the Supreme Court: Transforming the Court By Transforming the Bar." It will appear in 96 Georgetown Law Journal (2007). Here is his abstract:
During the past two decades, the Supreme Court has witnessed the emergence of an elite private sector group of attorneys who are dominating advocacy before the Court to an extent not witnessed since the early nineteenth century. This development is significant for the simple reason that advocacy matters, including before the Supreme Court. Better, more effective advocates influence the development of the law and there is generally no court where such advocacy can wield more far-reaching influence than the Supreme Court. And that is precisely what the modern Supreme Court Bar has quietly and increasingly been accomplishing in recent years. The Court grants the petitions filed by the expert members of the Bar at a significantly higher rate and they also prevail on the merits more frequently. This article documents the extent of the modern Bar's domination of the Court's docket, arguments, and rulings, considers the extent to which business interests who serve as the Bar's primary clients are enjoying heightened success before the Court as a result, and suggests ways of promoting a fairer allocation of Supreme Court advocacy expertise in the future.
October 22, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)
Sunday, October 21, 2007
The California State Bar Court held that a trial judge had abused his discretion by declining to terminate a lawyer from the Bar's Alternative Discipline Program. The program is designed to assist attorneys who suffer from substance abuse or mental health problems. The attorney had been the subject of seven complaints alleging serious ethical misconduct that occurred after he had been admitted to the program and had "failed to cooperate or respond in any meaningful way" with the investigations into the complaints. (Mike Frisch)
The New Hampshire Supreme Court suspended a superior court judge with pay as a result of ethics charges filed against the judge. The judge's husband had been disbarred. The judge is alleged to have participated in the creation of a family trust that was designed to avoid payment of costs associated with the bar discipline case. According to a press report, the judge had been the subject of an earlier complaint in which she had been accused of falling asleep while presiding over court proceedings. (Mike Frisch)