June 17, 2008
An attorney who had taken his fee in a bankruptcy case without court approval was indefinitely suspended by the Maryland Court of Appeals. The court approved findings below that the misconduct was a result of the lawyer's unfamiliarity with bankruptcy matters rather than dishonest or criminal behavior. (Mike Frisch)
June 16, 2008
Rule 3.3 Requires Candor to the Tribunal. But...
Posted by Alan Childress
Comes now the Appellant, by counsel, and moves the Court to reschedule the Oral Argument currently scheduled for August 1, 2007. The grounds for this motion are that undersigned counsel will be out of town in Oregon, on a 350-mile bicycle trip from July 30 through August 4, 2007, for no other reason than to please his wife. Counsel assures this panel that Oral Argument would be more enjoyable than the aforementioned bike trip.
Book, Movie Do Not Require Disqualification Of Prosecutor
There is an interesting article in the June 2008 California Bar Journal by Diane Karpman. She discusses two recent California Supreme Court decisions in cases where disqualification of the prosecutor had been sought. One matter involved a "lead prosecutor who moonlighted as a novelist, writing a fictional account of a heroine prosecutor's decision whether to try a rape case involving an intoxicated victim." The prosecutor had the book published while responsible for the prosecution of such a case. The other involved cooperation with a movie where it was alleged that confidential information had been shared. The defendant in the case has the perfect movie name: Jesse James Hollywood. The movie of the Hollywood case is called "Alpha Dog" and was released in early 2007.
In both cases, the trial court had held a hearing and denied the motion. The Court of Appeal had overturned the denials. Here, the court concluded that the trial courts had not abused their discretion. In neither case was disqualification ordered. (Mike Frisch)
Unequal Treatment Of Witnesses
The West Virginia Supreme Court of Appeals affirmed the grant of habeas corpus relief to a convicted defendant serving a life sentence. The basis? Both state and the defense called incarcerated individuals as witnesses. The state's witnesses were permitted to testify in civilian clothes; the defense witnesses were clothed in prison garb and shackled. The court concluded:
Under the unique facts of this case, where seven crucial defense witnesses testified before the jury in prison garb and shackles while the State's two key witnesses testified in civilian clothing and without shackles, it would be illogical to conclude that the witnesses' contrasting appearance did not appreciably impact the jury's assessment of the witnesses' credibility. As this Court pointed out in Allah Jamaal W., “[r]egardless of how credible the testimony of these witnesses may have been, . . . it [is] unlikely that the jury would find their testimony credible.” 209 W.Va. at 7, 543 S.E.2d at 288. As we held in syllabus point two of State v. Varner, 212 W.Va. 532, 575 S.E.2d 142 (2002), “'“[t]he right to a trial by an impartial, objective jury in a criminal case is a fundamental right guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Article III, Section 14 of the West Virginia Constitution.” Syllabus point 4, [in part,] State v. Peacher, 167 W.Va. 540, 280 S.E.2d 559 (1981).' Syllabus point 4, in part, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).” “And the question of whether a jury is impartial is dependent upon whether the jurors are free from bias or prejudice either for or against the accused.” State v. McClure, 184 W.Va. 418, 421, 400 S.E.2d 853, 856 (1990) (citing State v. Pratt, 161 W.Va. 530, 244 S.E.2d 227 (1978), and State v. Hatfield, 48 W.Va. 561, 37 S.E. 626
(1900)). Accordingly, the drastic contrast in the physical appearance of the parties' incarcerated witnesses - each of whom provided crucial testimony at trial - unfairly influenced the jury's judgment of the witnesses' credibility. As a result, Defendant's constitutional right to a fair trial was clearly violated. Accordingly, we affirm the lower court's order granting Defendant's petition for writ of habeas corpus.
The "Pillow Note"
The Supreme Court of South Dakota decided an interesting case concerning the validity of a holographic codicil to a decedent's will. The document was found in the decedent's pillow and became known as the "pillow note." The issue related to 70 acres of hunting land originally left to three grandsons. The pillow note changed the devise to benefit "all interested grandkids." Before her death, the decedent made clear her desire to effectuate the change. She had made an appointment with her lawyer over Thanksgiving, presumably to do so. All agree she had testamentary capacity. Unfortunately, she did not live to keep the appointment.
She "knew that her death was approaching" and even wrote a check to pay for her funeral on the morning she died. She passed away in her doctor's office during a routine appointment on November 9. Apparently in October, she had written the rather moving note that expressed her intent to change the provision. She placed the note in her pillow and put a yellow stick-it note in Chicken Soup for the Soul Celebrates Grandmothers, a book that her daughter had spent time reading to her. The note said "check in my pillow."
The court held that the pillow note fulfilled the formal requirements for a holographic will. The case was remanded with instructions that the pillow note be admitted and "interpreted to devise the 70-acre parcel to [the decedent's] seven children equally." (Mike Frisch)
"Law Of The Streets"
The Maryland Court of Appeals reversed a criminal conviction based on its conclusion that the prosecutor made an improper closing argument. The alleged victim had offered testimony that did not inculpate the defendant; the prosecutor argued that the victim was adhering to "the law of the streets" in his testimony. The court majority provides a detailed analysis of "golden rule" closing arguments in support of its conclusion. A concurring opinion agrees with the majority's analysis of so-called "Golden Rule" arguments but would find that the prosecutor's argument here involved "permissible rhetorical flourishes" made in fair response to the defense arguments. (Mike Frisch)
Continuous Representation Doctrine Not Applied
The New York Appellate Division for the Second Judicial Department ordered that summary judgment be granted to a defendant law firm on statute of limitations grounds. The representation involved the interests of a tenant in connection with the sale of property that included stables for horses. The court concluded that the firm's representation of the client in unrelated matters did not justify invocation of the "continuous representation" doctrine:
Under the doctrine of "continuous representation," the three-year statute of limitations for legal malpractice is tolled while the attorney continues to represent the client in the same matter, after the alleged malpractice is committed (see Shumsky v Eisenstein, 96 NY2d at 168). The parties must have a "mutual understanding" that further representation is needed with respect to the matter underlying the malpractice claim (McCoy v Feinman, 99 NY2d at 306).
Here, the defendant established its prima facie entitlement to summary judgment dismissing the legal malpractice cause of action by demonstrating that the statute of limitations expired on October 10, 1999 (see CPLR 214). In opposition, the plaintiffs failed to raise a triable issue of fact as to whether the statute of limitations was tolled by the continuous representation doctrine (cf. Shumsky v Eisenstein, 96 NY2d at 168). The defendant's subsequent representation of the plaintiffs in matters unrelated to the specific matter that gave rise to the alleged malpractice was insufficient to toll the statute of limitations (see Rachlin v LaRossa, Mitchell & Ross, 8 AD3d 461; Dignelli v Berman, 293 AD2d 565). Consequently, the Supreme Court should have granted that branch of the defendant's motion which was for summary judgment dismissing the cause of action alleging legal malpractice as time-barred.
June 15, 2008
Not a Gambling Problem
An attorney who had converted $10,500 in trust funds was suspended for at least three years by the Indiana Supreme Court. The attorney went into partnership with an attorney who had an existing escrow account. The old account was being closed out when the problem was discovered. The accused attorney at first claimed to his partner that the checks at issue were forged and then volunteered that he did not have a gambling problem. He later admitted the misconduct and made restitution. (Mike Frisch)