January 13, 2009
No Vicarious Liability For Negligence Of Appointed Counsel
Is a state subject to liability if court-appointed criminal defense counsel provides negligent representation? No, according to a recent decision of the Arizona Supreme Court. The court held that the duty of the state begins and ends with the appointment of counsel. Counsel is an independent contractor that the state does not control or supervise. Thus, the state may not be held vicariously liable for counsel's negligence. (Mike Frisch)
Tulane Symposium on Side Effects of States' DOMAs: Feb. 13, 2009
Posted by Alan Childress
A cutting-edged Tulane law journal offers a Friday the 13th conference on an interesting subject. That is also a great weekend to see New Orleans -- lots of great parades (days and nights) and fun during the weekend before the weekend before Fat Tuesday. And for the hook for this site, there is also an ethics CLE hour included. Great speakers from all over the USA. So here is the announce:
The Tulane Journal of Law & Sexuality will be hosting a symposium on Friday, February 13 at Tulane Law School in New Orleans: Beyond Marriage: The Broader Implications and Unforeseen Consequences of State Defense of Marriage Acts. The symposium will focus on the legal ramification of the state Defense of Marriage Acts, and panelists will include esteemed law professors and practitioners working in this area. The program offers 6 CLE units including 1 hour of ethics.
No Prosecutorial Misconduct
The Wyoming Supreme Court affirmed a conviction for second degree murder, concluding that the prosecutor did not engage in misconduct by commenting on the defendant's refusal to voluntarily submit to DNA testing:
...the investigators asked Mr. Smith to voluntarily give a DNA sample; after he refused, they obtained a warrant to obtain the sample. The DNA sample and the associated test results were not testimonial or communicative evidence and the State could compel him to provide the sample. By giving him the choice of providing a sample or refusing, the State did not coerce him and the evidence of his refusal did not fall within the Fifth Amendment protection. We conclude, therefore, the prosecutor did not violate Mr. Smith’s privilege against self-incrimination or commit prosecutorial misconduct by eliciting testimony about, or commenting upon, his refusal to voluntarily provide a sample for DNA testing.
No Second Bite
An attorney had represented a client since 1984. The client (a non-lawyer) went to work for a law firm and, on the client's recommendation, the attorney represented the firm in several matters. The client was then terminated by the law firm, who then retained the attorney bring an employment action against the law firm. The law firm sought to disqualify the lawyer and a circuit court denied the motion to disqualify, finding no ethical breach. The decision was affirmed on appeal.
The law firm then filed suit against the lawyer and his new firm on a variety of related claims. The South Carolina Supreme Court held that the issue of disqualification was barred by the doctrine of collateral estoppel:
The issue in this suit is whether the Firm has a disqualifying conflict of interest, which is the same question litigated in the Browder appeal. As the Browder appeal has been concluded, we affirm the dismissal of this suit on the basis of collateral estoppel. See Rule 220(c), SCACR (court can affirm on any ground appearing in the record). “When an issue has been actually litigated and determined by a valid and final judgment, the determination is conclusive in a subsequent action whether on the same or a different claim.” Zurcher v. Bilton, supra. Here, the claims are identical: that the Firm has a conflict of interest such that it cannot represent Browder in his employment suit against Ross Marine.
Furthermore, collateral estoppel should not be invoked unless the party was afforded a full and fair opportunity to litigate the issue in the first case. Zurcher, supra. In the Browder order, the circuit court judge held that “Ross Marine has had the ample time of approximately a year from the filing of this case until the present to fully develop their conflict position….” On appeal, appellants did not challenge that finding, and it is too late to allege now that they were not afforded a full and fair opportunity to litigate the conflict claim in the Browder case.
Update: The comment raises a good question. I assume (although the opinion does not seem to say so) that the Ross Marine firm is a former client and the the question of disqualification is thus governed by Rule 1.9. (Mike Frisch)
January 12, 2009
Eight Years Of Misrepresentations
A Massachusetts attorney was indefinitely suspended for mishandling a claim of medical malpractice on behalf of a client. After the case had been dismissed, the lawyer embarked on a eight year pattern of misrepresenting the status of the case to the (obviously very trusting) client:
The respondent was retained by the client in March 1997 to file a medical malpractice action against a physician for permanent and disfiguring injuries received as a result of surgery performed on the client. The respondent filed a complaint. A medical malpractice tribunal was scheduled for November 25, 1998. The respondent failed to present an Offer of Proof and a finding was issued for the physician, which was adopted and entered by the court.
The respondent failed to inform the client that the tribunal found for the physician and failed to take any steps to preserve the client’s lawsuit. The physician’s counsel filed a Motion to Dismiss that the respondent did not oppose and that was granted by the court. A Judgment of Dismissal of the client’s case was entered on January 22, 1999.
The respondent not only failed to inform the client that her case had been dismissed, but repeatedly and intentionally misrepresented the status of the case to the client from 1999 through 2007. In April 2007, the respondent was administratively suspended from the Bar of the Commonwealth for failure to pay her registration fees. After this suspension, the respondent continued to make misrepresentations to the client, including the existence of fictitious settlement discussions with the physician’s counsel and insurer. Following the administrative suspension, the respondent also failed to comply with the suspension order.
The lawyer also had failed to cooperate with the bar's investigation. (Mike Frisch)
Another Permanent Disbarment
A Louisiana attorney who had been suspended for two years in 1993 and never reinstated was permanently disbarred for practicing after he had been suspended. In 2004, he appeared on behalf of a criminal defendant before a parish district criminal court and attempted to negotiate a plea deal.
A dissent would disbar but with the possibility of reinstatement. (Mike Frisch)
Threat Of Contempt Draws Admonition
The New York Commission on Judicial Conduct imposed a stipulated admonition on a family court judge who had improperly threatened contempt on court officer who had taken a litigant into custody:
The record indicates that when respondent learned that officers assigned to the Child Advocacy Center had taken the litigant, she telephoned the CAC, demanded that the litigant be returned to the court immediately, and threatened to hold the agency in criminal contempt for the officers’ actions. She also demanded that the officers return to the court, under threat of contempt, and when they did so, she subjected the officers to an angry, lengthy harangue. Accusing them of interfering with a court proceeding, respondent repeatedly threatened to hold a contempt hearing and stated that the officers faced 30 days in jail and a $1,000 fine. Even after the officers had apologized several times, respondent continued to lecture them in an angry, discourteous manner and threatened them with contempt and a jail sentence unless they apologized. Finally the judge accepted their apologies, and no contempt proceeding was held.
Respondent has stipulated that she “lost her patience and self-control,” that neither the officers nor the CAC was properly subject to criminal or civil contempt and that she should not have intimated that they were. Under the circumstances, the threat of contempt or jail against the officers was excessive and inappropriate, notwithstanding that respondent did not act on her threat. See, Matter of Waltemade, 37 NY2d (nn), (iii) (Ct on the Judiciary 1975) (judge engaged in misconduct by angrily and inappropriately threatening lawyers and witnesses with “sanctions” and contempt, even though his threats were never followed by a contempt citation or any other disciplinary action); Matter of Hart, 2009 Annual Report ___ (Comm on Judicial Conduct) (judge threatened an attorney with contempt or jail if he did not proceed in a case, notwithstanding that the attorney had been sent by his firm to request an adjournment and had advised the judge that he was unprepared to try the case). It was an abuse of discretion for respondent to force the officers to return to court so that she could bully, threaten and chastise them.
In mitigation, we note that respondent now recognizes that her conduct was improper and that she should have accepted the officers’ early apologies. We also note that she has committed to familiarize herself more fully with the legal and procedural mandates regarding contempt by attending an appropriate training program and to adhere to the ethical mandates in the future.
January 11, 2009
An associate in a Baton Rouge law firm was assigned to handle a claim for a mother and four children arising out of an accident in the parking lot of Wal-Mart. The lawyer submitted medical bills totaling over $23,000 to an insurance company. The lawyer learned that the client and two of the children had been in an earlier, minor accident in a Wal-Mart lot. The lawyer altered and submitted the medical bills from the first claim. He was indicted and convicted of the felony offense of inciting a felony. Bar disciplinary proceedings were brought that have now resulted in an order of permanent disbarment from the Louisiana Supreme Court. The lawyer had contended that the sanction was "too harsh."
It appears that the lawyer was relatively new to the profession when the conduct took place. Disbarment may well be appropriate, but permanent disbarment? (Mike Frisch)