Legal Profession Blog

The One Percent Solution

The District of Columbia Court of Appeals amended a comment to its Rule of Professional Conduct  6.1 on pro bono activities:

[5] In determining their responsibilities under this rule, lawyers admitted to practice in the District of Columbia should be guided by the Resolutions on Pro Bono Services passed by the Judicial Conferences of the District of Columbia and the D.C. Circuit as amended from time to time. Those resolutions as adopted in 2009 and 2010, respectively, call on members of the D.C. Bar, at a minimum, each year to (1) accept one court appointment, (2) provide 50 hours of pro bono legal service, or (3) when personal representation is not feasible, contribute the lesser of $750 or 1 percent of earned income to a legal assistance organization that services the community’s economically disadvantaged, including pro bono referral and appointment offices sponsored by the Bar and the courts.

(Mike Frisch)

Fuzzy Line

Daniel Fisher in Forbes has this article on the difficulties presented to laypersons in understanding the contours of state rules governing unauthorized practice. He notes:

All 50 states have rules and laws prohibiting the unauthorized practice of law, ostensibly to protect consumers. Defenders of these laws  make the analogy to doctors: You wouldn’t want an unlicensed doctor to remove your appendix, would you? But the analogy isn’t precise. While it’s true an unlicensed person can’t perform surgery or prescribe medicine, the American Medical Association doesn’t have the power to fine, say, a massage therapist who advises a client to take St. John’s Wort instead of Paxil. When it comes to the law, the bar associations of many states have the power not only to identify people who are violating their rules, but haul them into court.

Fisher recounts a number of recent enforcement cases and notes a Kentucky matter:

For document-preparers like Tarpinian, determining the fuzzy line they can’t cross over is difficult. One lawyer struggled to come up with a definition and finally told me the practice of law is giving advice that two lawyers can disagree upon, with neither one committing legal malpractice. That goes to the heart of any profession, which is exercising judgment honed by specialized education and experience. The judicial branch has a particular interest in insuring that people who collect fees to represent clients in court are qualified to be there.

But if even lawyers have trouble delineating the boundaries of the legal profession outside of court, how are non-lawyers expected to figure it out?

The Tarpinian decision is linked here. (Mike Frisch)

Not To Carp, Cavil, Censure, Or Castigate

Last month, the West Virginia Supreme Court of Appeals upheld as constitutional a statute that places a cap on damages in professional malpractice cases.

A circuit court judge sitting by designation recently filed a dissent. The judge raises some questions:

 Why should a circuit court judge, honored to be sitting as a temporary justice in the MacDonald case, take the time (and have the effrontery) to dissent?

It is not because of the way I was treated by the Court. The entire Court was most deferential in considering my opinions.

It is not because I seek to carp, cavil, censure, or castigate our Supreme Court of Appeals.

In fact, I cannot allude to this Court without exultation. I have immeasurable respect for our Supreme Court and in particular for Justice Robin Davis, one of the brightest and most dedicated persons who have ever served on our highest state court.

It is not because I want to take issue with the high quality of medical care in West Virginia and the fact that doctors and other medical professionals needed some legislative help to control exorbitant malpractice insurance costs.

I dissent because, by this counterintuitive decision in this decisively important case, the justices capitulated to the West Virginia Legislature’s political-and unconstitutional-mistreatment of medical malpractice victims, and by its decision, delivered the coup de grâce to the rights of thousands of West Virginians to be fully compensated for losses caused by the negligence of medical professionals.

Hot coffee, anyone? (Mike Frisch)

 

Invasion Of Privilege By Prosecutor Requires Reversal Of Conviction

A decision from the Connecticut Supreme Court:

The central issue in this case is whether a prosecutor’s intrusion into communications between a defendant and his attorney that are subject to the attorney-client privilege requires the dismissal of the criminal charges against the defendant. The defendant, Patrick J. Lenarz, was charged in three informations, each of which charged the defendant with risk of injury to a child in violation of General Statutes § 53- 21 (a) (1) and (2), and sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1)(A). Before trial, the prosecutor came into possession of and read certain written materials belonging to the defendant that were subject to the attorney-client privilege. Upon learning this fact, the defendant filed a motion to dismiss the charges against him, which the trial court denied. After a trial, the jury returned a verdict of guilty on one count of risk of injury to a child in violation of § 53-21 (a) (1). The jury found the defendant not guilty of all of the remaining charges, and the trial court rendered judgments in accordance with the verdict. The defendant then appealed...

The court majority held that prejudice is presumed when the prosecutor intrudes on confidential communications "regardless of whether the invasion into the attorney-client privilege was intentional. The subjective intent of the government and the identity of the party responsible for the disclosure simply have no bearing on [the question of prejudice]."

 There is a lengthy dissent that would not reverse the conviction for the prosecutor's good-faith conduct in reading a single e-mail about defense trial strategy. The dissent takes the majority to task for its Sixth Amendment jurisprudence as well as "improper" fact-finding in reaching a question not raised by the defendant.

In sum, the dissent accuses the majority of breaking new ground as the first court ever to reverse a criminal conviction for an inadvertant invasion of privileged material by a prosecutor.

The dissent notes that the defendant's computer was lawfully seized in November 2004. It took until July 2005 for the lab to complete its work. There were five e-mails that were arguably privileged out of a mountain of material. One--to the defendant's spouse--dealt with trial strategy. All of the documents were provided to defense counsel. (Mike Frisch)

 

Scam Alert

From the web page of the Ohio Supreme Court:

The Supreme Court of Ohio issued a warning today about an Internet scam continuing to affect Ohio lawyers.

This latest email scam is similar to previous ones about which the Supreme Court has warned attorneys, according to Amy C. Stone, Assistant Disciplinary Counsel with the Office of Disciplinary Counsel.

“This is how it starts,” Stone said. “The phrase ‘to exert pressure on our delinquent customers in the USA’ in the email is signaling that the company – in this case Malaysia Steel – seeks debt collection services. The attorney ‘collects’ a bogus check from the delinquent customer, deposits it into her IOLTA account, keeps a ridiculously large agreed fee for herself (given the amount of work performed) and then wires the remainder of funds out of the IOLTA to Malaysia Steel. The actual wire recipient (who is not Malaysia Steel) receives the attorney’s ‘good’ IOLTA funds, (which end up being funds from the attorney’s other clients), while the attorney receives a returned bogus collection check which is charged back against her account.”

According to Stone, the banks are aware of the scam and in most of the recent incidents have been able to reverse the wire transfer. However, the attorney is stuck paying the difference in the exchange rate for the currency wired out of and coming back into the IOLTA.

The proposed client is typically an actual Asian company – although the scammers have no connection with the company. Also, sometimes the scammers use real lawyers’ names in the initial e-mail.

Attorneys are advised to exercise caution when approached by unknown persons seeking to enter into financial transactions involving foreign entities. To report a suspected online crime, contact the FBI at www.ic3.gov.

Each Ohio attorney – or the attorney’s employer – that holds the funds of clients that are nominal in amount or held for a short period of time must have an IOLTA. Interest from IOLTAs funds the Ohio Legal Assistance Foundation, which distributes these funds to the state’s legal aid societies to provide free legal aid to the poor.

(Mike Frisch)

Takings Clause Applies To Appointed Counsel's Representation

A South Carolina attorney who had been appointed to represent an indigent defendant in a complex criminal case advised the judge that he would stop working on the matter in light of his concern that he would not be paid beyond the statutory maximum for the representation. The judge threatened contempt and the attorney retained counsel. Eventually, the attorney agreed to continue with the case.

He did not get paid over the statutory cap. The trial judge denied excess compensation as a result of the attorney's "unprofessional behavior." He appealed the fee decision.

The South Carolina Supreme Court held that the Takings Clause of the Fifth Amendment of the United States Constitution was implicated but that the trial court did not abuse its discretion in denying fees over the cap:

We...recognize the historic obligation of an attorney to honor court-ordered appointments for the representation of indigents, while also recognizing that the attorney's service constitutes property for Fifth Amendment purposes where there is a right to counsel.  We do not view these principles as mutually exclusive.  In harmonizing these positions, a trial court should be guided by Bailey's approach to just compensation assessed in light of the public service foundation associated with membership in the legal profession.

The court quoted with approval this statement from the Kansas Supreme Court:

Attorneys make their living through their services.  Their services are the means of their livelihood.  We do not expect architects to design public buildings, engineers to design highways, dikes, and bridges, or physicians to treat the indigent without compensation.  When attorneys' services are conscripted for the public good, such a taking is akin to the taking of food or clothing from a merchant or the taking of services from any other professional for the public good.  And certainly when attorneys are required to donate funds out-of-pocket to subsidize a defense for an indigent defendant, the attorneys are deprived of property in the form of money.  We conclude that attorneys' services are property, and are thus subject to Fifth Amendment protection.

A dissent by Justice Pleicones would find an abuse of discretion by the trial judge:

As noted by the majority, the sole basis for denying Appellant an award of fees in excess of the statutory limit was his unprofessional conduct.  In my opinion, the trial court abused its discretion in failing to consider, as required by the statute, whether the requested payment in excess of the limit was necessary to provide effective assistance of counsel or whether the services provided were reasonably and necessarily incurred.  In my opinion, the trial court should have allowed Appellant to submit evidence as to the reasonableness of his fees, and reviewed it accordingly.  Even in light of Appellant's undeniably petulant behavior, I would find the trial court abused its discretion and would remand the matter with instructions to evaluate the necessity for and worth of Appellant's services.

In South Carolina, the statutory cap is $3,500. (Mike Frisch)

Dismissal From Tenured Position For Plagiarism Affirmed

The New York Appellate Division for the First Judicial Department has affirmed the dismissal of an action brought by a tenured Columbia professor who was removed from her position after an investigation into plagiarism charges:

Respondents' decision to terminate petitioner from her tenured position at respondent college was not arbitrary and capricious. The findings of the college's Faculty Advisory Committee (FAC) that petitioner committed plagiarism and fabricated documents that she presented in her defense was supported by the evidence (see Matter of Bigler v Cornell Univ., 266 AD2d 92 [1999], lv dismissed 95 NY2d 777 [2000]). There exists no basis to disturb the credibility determinations
of the FAC (see Matter of Ebert v Yeshiva Univ. 28 AD3d 315, 316 [2006]).

Further, the record establishes that respondents substantially complied with the college's statutes (see Matter of Loebl v New York Univ., 255 AD2d 257, 257-259 [1998]). Petitioner was also provided with a full and fair opportunity to present her defense against the charges of plagiarism (see Ebert at 315; cf. Tedeschi v Wagner Coll., 49 NY2d 652, 661-662 [1980]). There is nothing in the college's "Statutes" prohibiting its president from referring the investigation of this matter to outside counsel or prohibiting the college from indemnifying certain witnesses.

The New York Times had this report from 2008. The professor had received national publicity after reporting that a noose had been left hanging on her office door. (Mike Frisch)

No Defense Of Assisted Suicide

The South Dakota Supreme Court has held that a person who kills a friend who wished to die cannot offer an "assisted suicide" defense to the charge of first degree murder. The friend had a failed suicide attempt. He was addicted to drugs, feared a likely return to prison, and was terminally ill. They went to a remote location where the defendant shot his friend at close range. The body was found by fishermen. (Mike Frisch)

Stay Out Of Rhode Island

The Rhode Island Supreme Court has entered an order finding that a business located in San Antonio, Texas violated restrictions on unauthorized practice through an online web site. The business is known as Low Cost Paralegal Services. The business held itself out to Rhode Islanders as "competent and qualified to prepare legal documents for uncontested divorces and to assist with a child support problem..." The court rejected as incredible the principal owner's representation that she will cease and desist from future unauthorized practice.

The court forwarded its order to the Rhode Island Attorney General with the recommendation that the matter be referred to the Attorney General of Texas and the Federal Trade Commission. (Mike Frisch)

Ohio Welcomes You

From the web page of the Ohio Supreme Court:

The process for seeking a law license in Ohio just got a little bit easier with the launch of a new web portal at supremecourt.ohio.gov.

Applicants to be admitted to practice law in the state of Ohio must undergo a rigorous process that includes the submission of documents and information supporting certain requirements of education, credentials, character and fitness to be a licensed member of the bar.

Once an application is submitted in person or through the mail, the new Bar Admissions Online Services page will allow applicants to access information about their application, see where it is in the process, submit supplemental information and documents, and perform other tasks in one central location.

“This is the culmination of a lot of work by Supreme Court staff to use technology to make the process easier for applicants and ultimately save money by making the process more efficient,” said Supreme Court of Ohio Administrative Director Steven C. Hollon.

The new Bar Admissions Online Services page is available on the Court’s home page (www.supremecourt.ohio.gov) by clicking the button that says “Bar Admissions Online Services.”

(Mike Frisch)

Rape Offense Unconstitutional Where Both Are Under 13

The web page of the Ohio Supreme Court reports on a decision issued today:

The Supreme Court of Ohio ruled today that the state law that defines sexual activity with a child under the age of 13 as rape is unconstitutional as applied to sexual conduct between two children who are both under 13 when neither child uses force or impairs the other in any way.

The Court’s 7-0 decision held that R.C. 2907.02(A)(1)(b), a subsection of Ohio’s rape statute which provides that “no person shall engage in sexual conduct with another ... ” when “the other person is less than 13 years of age” is unconstitutionally vague and violates the right to equal protection of the laws when it is applied to charge one but not the other of two children under the age of 13 who engage in sexual conduct with one another.

The decision, which reversed a ruling by the 5^th District Court of Appeals, was authored by Justice Judith Ann Lanzinger.

The case involved a 12-year-old boy identified as D.B. and his 11-year-old friend, identified as M.G., who engaged in sex acts with each other on several occasions. In each instance, D.B., who was physically taller and heavier than M.G., was the instigator of the sexual conduct. Both boys and a mutual friend who witnessed some of the acts testified that M.G. consented to the conduct. When the boys’ parents discovered the conduct, D.B. was charged with multiple delinquency counts of rape in the Licking County Juvenile Court. The complaint alleged that D.B. had committed forcible rape under R.C. 2907.02(A)(2) or in the alternative had committed statutory rape in violation of R.C. 2907.02(A)(1)(b) by engaging in non-forcible sexual conduct with a child under the age of 13.

Attorneys for D.B. filed a pretrial motion to dismiss the statutory rape charges on the basis that both participants had “engaged in sexual conduct” with a person under the age of 13, and therefore applying R.C. 2907.02(A)(1)(b) to charge one participant as the perpetrator and the other as the victim violated the equal protection and due process provisions of the state and federal constitutions.

The juvenile court deferred ruling on the motion to dismiss until after it had reviewed the evidence and testimony presented at trial. After dismissing several of the original rape counts and concluding that D.B. had not coerced M.G. by force or threat of force on any of the occasions they engaged in sexual conduct, the court adjudicated D.B. guilty of five delinquency counts of statutory rape based solely on R.C. 2907.02(A)(1)(b). D.B. was sentenced to a term of commitment to the Ohio Youth Commission of a minimum of five years to a maximum of his 21st birthday, with the full term of commitment suspended indefinitely. He was also ordered to attend counseling and group therapy.

D.B. appealed. The 5^th District Court of Appeals upheld the juvenile court’s judgment, holding that the trial court’s application of R.C. 2907.02(A)(1)(b) to convict D.B. of delinquent statutory rape under the facts of the case was not unconstitutional. D.B. sought and was granted Supreme Court review of the 5^th District’s ruling.

In today’s decision, Justice Lanzinger wrote: “D.B. argues that R.C. 2907.02(A)(1)(b) is unconstitutional in two ways. First, he argues that the statute is vague as applied to children under the age of 13, and thus violates his right to due process. Second, he argues that the statute was applied in an arbitrary manner in this case in contravention of his constitutional right to equal protection.”

“A statute can be impermissibly vague for either of two independent reasons. First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement. ...”

“As applied to children under the age of 13 who engage in sexual conduct with other children under the age of 13, R.C. 2907.02(A)(1)(b) is unconstitutionally vague because the statute authorizes and encourages arbitrary and discriminatory enforcement. When an adult engages in sexual conduct with a child under the age of 13, it is clear which party is the offender and which is the victim. But when two children under the age of 13 engage in sexual conduct with each other, each child is both an offender and a victim, and the distinction between those two terms breaks down.”

“The facts of this case provide an example of the temptation for prosecutors to label one child as the offender and the other child as the victim. Based apparently upon the theory that D.B. forced M.G. to engage in sexual conduct, the state alleged that D.B., but not M.G., had engaged in conduct that constituted statutory rape. However, while the theory of D.B. as the aggressor was consistent with the counts alleging a violation of RC. 2907.02(A)(2), which proscribes rape by force, this theory is incompatible with the counts alleging a violation of statutory rape because anyone who engages in sexual conduct with a minor under the age of 13 commits statutory rape regardless of whether force was used. Thus, if the facts alleged in the complaint were true, D.B. and M.G. would both be in violation of R.C. 2907.02(A)(1)(b).”

“The prosecutor’s choice to charge D.B. but not M.G. is the very definition of discriminatory enforcement. D.B. and M.G. engaged in sexual conduct with each other, yet only D.B. was charged. The facts of this case demonstrate that R.C. 2907.02(A)(1)(b) authorizes and encourages arbitrary and discriminatory enforcement when applied to offenders under the age of 13. The statute is thus unconstitutionally vague as applied to this situation. ...”

“We note that while we hold that R.C. 2907.02(A)(1)(b) is unconstitutional as applied to a child under the age of 13 who engages in sexual conduct with another child under the age of 13, a child under the age of 13 may be found guilty of rape if additional elements are shown: the offender substantially impairs the other person’s judgment or control, R.C. 2907.02(A)(1)(a); the other person’s ability to resist or consent is substantially impaired because of a mental or physical condition or advanced age, R.C. 2907.02(A)(1)(c); or the offender compels the other person to submit by force or threat of force, R.C. 2907.02(A)(2). None of those additional elements was present here.”

“Application of R.C. 2907.02(A)(1)(b) in this case also violates D.B.’s federal right to equal protection. The plain language of the statute makes it clear that every person that engages in sexual conduct with a child under the age of 13 is strictly liable for statutory rape, and the statute must be enforced equally and without regard to the particular circumstances of an individual’s situation. R.C. 2907.02(A)(1)(b) offers no prosecutorial exception to charging an offense when every party involved in the sexual conduct is under the age of 13; conceivably, the principle of equal protection suggests that both parties could be prosecuted as identically situated. Because D.B. and M.G. were both under the age of 13 at the time the events in this case occurred, they were both members of the class protected by the statute, while at the same time both could have been charged under the offense. Application of the statute in this case to a single party violates the Equal Protection Clause’s mandate that persons similarly circumstanced shall be treated alike.”

Justice Lanzinger’s opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Terrence O’Donnell and Yvette McGee Brown. Justice Robert R. Cupp concurred in the Court’s judgment, syllabus, and opinion solely on the basis of the due process analysis.

The decision is linked here.  (Mike Frisch)

Not Like The Movies

In its unanimous decision yesterday in the case of Fox v. Vice (great case name), the United States Supreme Court remanded to the lower court with instructions to determine attorney's fees where there is a mix of frivolous and non-frivolous claims. Fees are limited to the work performed in response to the frivolity.

Justice Kagan's observation about the realities of litigation is worthy of note:

These standards would be easy to apply if life were like the movies, but that is usually not the case. In Hollywood,litigation most often concludes with a dramatic verdict that leaves one party fully triumphant and the other utterly prostrate. The court in such a case would know exactly how to award fees (even if that anti-climactic scene is generally left on the cutting-room floor). But in the real world, litigation is more complex, involving multiple claims for relief that implicate a mix of legal theories andhave different merits. Some claims succeed; others fail. Some charges are frivolous; others (even if not ultimately successful) have a reasonable basis. In short, litigation is messy, and courts must deal with this untidiness in awarding fees.

(Mike Frisch)

Testing And Divorce Both OK In Wyoming

The Wyoming Supreme Court ventures into the culture war with two decisions issued today.

One decision upholds the constitutionality of drug testing students who wish to participate in extracurricular activities; the other holds that the Wyoming courts have jurisdiction to entertain a petition for divorce of a same-sex couple lawfully wed in Canada:

Two Wyoming residents are seeking a legal remedy to dissolve a legal relationship
created under the laws of Canada. We find nothing in Wyoming statutes or policy that
closes the doors of the district courts to them. The district court has subject-matter
jurisdiction to entertain their petition for divorce.

(Mike Frisch)

Ineffective Assistance When Client Wants To Withdraw Plea

The New Jersey Appellate Division has held that a defense attorney provided ineffective assistance of counsel by undercutting the defendant's efforts to withdraw a previously offered guilty plea:

...in the present case the trial judge placed great reliance on his searching inquiry at the time that  the plea was entered, and upon defendant's unequivocal responses. But here, the judge's determination was also undoubtedly colored by defense counsel's statements completely undercutting defendant's claims of innocence and was explicitly colored by defendant's
statement in his letter to counsel regarding his potential willingness to accept a lower plea.

The case was remanded to consider the motion to withdraw the guilty plea with new defense counsel and a new judge. (Mike Frisch)

The Matrix

The Mississippi Supreme Court reversed the grant of summary judgment to two attorneys sued for legal malpractice. The attorneys had represented the 16 former clients who were plaintiffs in mass-tort litigation. The suit claims that the attorneys breached fiduciary obligations by "prematurely settling their cases in order to maximize attorney fees."

The plaintiffs had produced as a witness an attorney who had been associated with the defendants and then been fired. The witness would testify that he "had settled numerous similar cases for much more than the [plaintiffs] received. The lawyer also produced a settlement document he had prepared, in part, by using another lawyer's matrix as a go-by." The trial court excluded the evidence, held that the plaintiffs "were required to, but could not, prove they would have won their cases at trial" and granted summary judgment.

The court here ruled that the attorney's evidence was admissible (although the matrix itself is hearsay) and that the plaintiffs are not required to prove they could have won the case to establish the breach of fiduciary duty. Unlike a legal malpractice case based on negligence, plaintiffs pursuing a fiduciary breach theory need not prove they would have prevailed in the underlying case. (Mike Frisch)

Other Plans For Mother's Day

The New Jersey Appellate Division reversed a domestic violence restraining order filed by a mother against her son. The court concluded  that the son's thefts of his mother's property did not prove an intent to "seriously annoy" the mother:

The record does not provide evidence that defendant acted with any purpose in stealing from his mother other than to appropriate her property for his own use.

Another point

Under the facts here, the only communication that could arguably support a finding of harassment...occurred when the defendant called his mother a "senile old bitch." As the court found, this was understandably upsetting to the plaintiff. However, we do not measure the effect of the speech upon the victim; we look to the purpose of the actor in making the communication.

The son, aged 56, lived with his mother. (Mike Frisch)

Removal Of Retained Counsel Subject To Immediate Appeal

From the web page of the Ohio Supreme Court:

The Supreme Court of Ohio held today that when a trial court issues a pretrial order removing a criminal defendant’s retained counsel of choice, that action is a final order subject to immediate review by a court of appeals.

The Court’s 7-0 decision, authored by Justice Evelyn Lundberg Stratton, reversed a ruling by the 8^th District Court of Appeals.

Dantae Chambliss, James Bennett, and Travis Sanders were indicted on several drug-related offenses.  Each defendant retained his own attorney, pleaded not guilty, and filed a request for discovery. Each defendant filed a motion to compel production of a search warrant affidavit and a motion for discovery.  Each defendant filed at least one motion to continue trial based on denial of access to a requested affidavit, which remained sealed. In addition, each defendant filed a motion to suppress evidence and a motion for a trial separate from the other defendants. After the defendants’ motions for separate trials were denied, they filed motions to continue based on the fact that they had not yet received the search warrant affidavit despite repeated requests.

The defendants subsequently entered guilty pleas pursuant to a proposed plea agreement.  However the trial judge refused to accept the agreement between the state and defense, and the defendants moved to withdraw their pleas.  The trial court vacated the pleas of all three defendants, set trial, and granted a motion to unseal the search warrant affidavit. During a hearing on the day of trial, it became clear that the attorneys had not yet received the search warrant,  and as a result, if required to proceed to trial without the necessary information, claimed they would be ineffective as counsel within the meaning of the Sixth Amendment. The trial court removed all three retained counsel, remanded all three defendants to the custody of the sheriff, ordered all three defendants to retain new counsel in less than two weeks, and set trial for the following month.

On review, the 8^th District Court of Appeals vacated the trial court’s order remanding Chambliss, Bennett, and Sanders to jail, affirmed that their bonds remained in effect, and released the defendants.  The court of appeals concluded, however, that the trial judge’s removal of the defendants’ counsel of choice was not a final and appealable order and dismissed their appeal as to that issue.

The defendants sought and were granted Supreme Court review of the 8^th District’s holding that the removal of their counsel was not immediately appealable.

Writing for a unanimous Supreme Court in today’s decision, Justice Stratton noted that R.C. 2505.02(B)(4) sets forth a three-part test for determining whether a trial court order is “final” and appealable.  Because the state had conceded that the removal of the defendants’ counsel of choice met the first two prongs of the statutory test, she wrote, the only question remaining was whether a party forced to delay his appeal of an order until after the trial court issued a final judgment in the underlying case “would not be afforded a meaningful or effective remedy.”

Justice Stratton observed that in its opinion the 8^th District acknowledged that erroneous removal of a defendant’s counsel of choice would have such a fundamental impact on a trial that any conviction obtained by the state after such an error would be subject to “automatic reversal.” However, despite that recognition, Justice Stratton wrote, “(T)he appellate court still held that this court’s decision in State ex rel. Keenan v. Calabrese (1994) ... warranted a conclusion that the order removing appellants’ retained counsel was not a final, appealable order. We now conclude that it is a final, appealable order.” 

In explaining the Court’s change in position, Justice Stratton wrote: “(S)everal years after this court’s per curiam decision in Keenan, the United States Supreme Court considered the issue [in United States v. Gonzalez-Lopez (2006)] and held that ‘the erroneous deprivation of the right to counsel of choice, “with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as “structural error.”’... This is because ‘[d]ifferent attorneys will pursue different strategies with regard to investigation and discovery, development of the theory of defense, selection of the jury, presentation of the witnesses, and style of witness examination and jury argument.  And the choice of attorney will affect whether and on what terms the defendant cooperates with the prosecution, plea bargains, or decides instead to go to trial. In light of these myriad aspects of representation, the erroneous denial of counsel bears directly on the “framework within which the trial proceeds” ... or indeed on whether it proceeds at all.’”

“Turning to the case at bar, the trial court ordered that all three retained counsel be removed as counsel and remanded defendants to the custody of the sheriff.  The court of appeals concluded that the order removing counsel was not a final, appealable order, thus potentially forcing the defendants to run the gauntlet of trial twice.”

“A postconviction reversal of the trial court’s judgment would not be automatically effective. A criminal defendant might exhaust his or her resources during the first trial, thereby denying that defendant the counsel of his or her choice. Further, if counsel of choice were later deemed to have been erroneously removed, the subject matter of the first trial, including the strategy employed, witnesses cross-examined, etc., would be stale and likely weakened.  This, in addition to the waste of scarce judicial resources, satisfies the third prong of R.C. 29505.02(B)(4) − rendering apostconviction appeal ineffective or  meaningless − and compels a conclusion that a pretrial ruling disqualifying a criminal defendant’s retained counsel of choice is a final order, subject to immediate appeal.”

Justice Stratton emphasized that today’s ruling is limited to cases in which a criminal defendant’s retained counsel of choice is removed.  “The issue of whether the removal of appointed counsel is a final, appealable order may involve different considerations that have not been briefed in this case. We leave that issue for another day,” she wrote.

“Further, we are examining only the issue of whether the denial of retained counsel of choice is a final, appealable order. The merits of the trial court’s decision in removing retained counsel of choice in this case are not before us. Because we hold that the denial of retained counsel of choice in a criminal proceeding is a final, appealable order, we reverse the judgment of the court of appeals and remand the cause to the court of appeals for further proceedings on the merits of the appeal."

The court's opinion is linked here. (Mike Frisch)

New D.C. IOLTA Proposals

From the web page of the District of Columbia Bar:

The D.C. Bar’s Regulations/Rules/Board Procedures Committee has released recommendations on whether and how the D.C. Bar Foundation should monitor participation of members in the Interest on Lawyers’ Trust Accounts (IOLTA) program.

On March 22, 2010, the D.C. Court of Appeals issued amendments to the Rules Governing IOLTA that became effective on August 1, 2010. The amendments made participation in the existing IOLTA program mandatory for Bar members who came into possession of IOLTA–eligible funds. No proposal to monitor member participation in the IOLTA program was forwarded to the Court because further study was needed. The Board of Governors charged the Bar’s Regulations/Rules/Board Procedures Committee to study the monitoring issue and make recommendations to the Board.

After comprehensive analysis, the committee recommends a new Rule XIV of the D.C. Court of Appeals Rules Governing the Bar. The proposed Rule states that the D.C. Bar Foundation should be permitted to develop a plan for monitoring a lawyer’s or law firm’s participation in IOLTA, with the plan to be submitted for review and approval by the Bar’s Board of Governors.

In addition, the committee concluded that the monitoring of a lawyer’s or law firm’s participation in the mandatory IOLTA program should not be subject to enforcement by the disciplinary system and that members should not be required to certify their compliance with the mandatory IOLTA rules.

Both the D.C. Bar and the D.C. Bar Foundation will continue their educational efforts to ensure that members understand their ethical obligations under the mandatory IOLTA rules.

The committee is conducting a public comment period from March 25 to April 25 on its proposed amendments to the IOLTA rules. Any comments on the IOLTA report should be sent to ioltacomments@dcbar.org.

The recommendations can be found at this link. (Mike Frisch)

Law Student Prosecutor Immune From Civil Suit

A third-year law student intern who prosecuted an assault case under a student practice rule is entitled to immunity from a civil suit filed by the defendant, according to a recent decision of the Montana Supreme Court. The attorney who authorized the representation also was absolved of liability.

The court affirmed a lower court dismissal of the suit:

Spreadbury asserts on appeal that summary judgment was inappropriate because (1) an unlicensed law student may not act as a lawyer in a criminal proceeding; (2) prosecutorial immunity is not available to the law student and her supervisor; (3) the District Court erred in ignoring his claim of criminal contempt based on Wetzsteon’s violation of the Student Practice Rule; and (4) Corn, as Wetzsteon’s supervisor, was personally liable under the Student Practice Rule in the event Wetzsteon is found to be in violation of the Rule.

In granting Wetzsteon and Corn’s motion for summary judgment, the District Court, without analysis, concluded Wetzsteon and Corn had prosecutorial immunity from all of the claims raised by Spreadbury. The court further concluded that Spreadbury presented no facts creating a material question; rather, he merely set forth speculative and conclusory statements. As such, the District Court ruled Wetzsteon and Corn were entitled to summary judgment as a matter of law. The court dismissed Spreadbury’s complaint with prejudice.

Reviewing the record in this case and the relevant provisions of the Student Practice Rule, we conclude neither Wetzsteon nor Corn violated the Rule. Additionally, had Wetzsteon or Corn failed to strictly comply with the Rule, Spreadbury has presented no legal authority to support his argument that such lack of compliance deprives a student prosecutor or the supervising prosecutor of prosecutorial immunity.

The defendant was charged with assault. He was convicted in absentia when he failed to appear for trial after the case had been continued over his objection. The conviction was overturned on appeal based on a speedy trial violation (Mike Frisch)

Tripartite Attorney-Client Relationship

The North Carolina Supreme Court recognized the existence of an attorney-client relationship between an association member, the association and an attorney retained by the association on the member's behalf. The court reversed and remanded a decision of the Court of Appeals.

The member was a police officer who was demoted after reporting a fellow officer's misconduct. He also alleges that he was assaulted by the chief of police. He contacted the legal department of the Southern States Police Benevolent Association and spoke to an attorney there. Ultimately, he was referred to outside counsel.

The court held that the tripartite relationship created an attorney-client relationship much like in an insurer-beneficiary situation. The interests of the member and the association are "closely aligned."The policy interests that favor the privilege prevail:

Recognizing an attorney-client relationship in this context is essential to the role of advocacy and benevolence associations like the SSPBA. Without such a relationship confidential statements made by individuals seeking assistance from advocacy organizations would be unprotected and discoverable in litigation. The possibility of disclosure of such communications would chill the flow of information to these groups and hinder their purpose of promoting and protecting the interests of members and individuals.

The court remanded for an in camera review by the trial court to determine the applicability of the asserted claims of privilege. (Mike Frisch)