Monday, March 19, 2012
A decision from the New York Appellate Division for the First Judicial Department:
In this article 78 proceeding, we are called upon to judge the legality, not the wisdom or the prudence, of the City of New York's proposed revisions to its Indigent Defense Plan with respect to the assignment of counsel in cases in which the initial provider at arraignment is unable to represent the indigent person due to a conflict of interest. Upon our review of the record and relevant statutes, we conclude that the City's revised plan,and its proposed implementation pursuant to Chapter 13 of Title 43 of the Rules of the City of New York (43 RCNY 13-01 et seq.), is not arbitrary and capricious or irrational (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 230-231 ), does not require the consent of the county bar associations (the County Bars), and does not violate section 722 of article 18-B of the County Law (as amended by L 2010, ch 56, pt E, § 3) or Municipal Home Rule Law § 11(1)(e).
The revised plan is a lawful "combination" plan under County Law § 722(4), providing indigent representation under the "private legal aid bureau or society" option of § 722(2), which, contrary to petitioner's contention, is not restricted to primary assignments, and the "plan of a bar association" option of § 722(3), which, contrary to petitioner's contention, does not give the County Bars the exclusive right to provide "conflict counsel." Although the revised plan provides for the assignment of conflict cases to institutional providers under § 722(2), it continues to permit the assignment of conflict cases to private counsel serving on Criminal Defense Panels (see 43 RCNY 13-03) created under the authority of Executive Order 178 of 1965 and pursuant to the 1965 "Bar Plan," to be administered in accordance with the rules of the Appellate Division, First and Second Departments (Executive Order 136 of 2010), and does not improperly usurp the role of the County Bars. Nor does the plan either eliminate the judiciary's right under County Law § 722(4) to assign counsel when a conflict of interest prevents assignment pursuant to the plan or displace the judiciary's role in authorizing the appointment of experts (see 43 RCNY 13-05).
There is a dissent:
This proceeding challenges the plan of respondents Mayor Bloomberg, his Criminal Justice Coordinator (CJC) and the City of New York to make changes to the indigent defense system in New York City that has been in place since 1965. The core of the dispute is the manner in which the City proposes to assign so-called "conflict cases" - cases in which the primary provider at arraignment (The Legal Aid Society or another legal aid organization) is unable to accept representation due to a conflict of interest. Until recently, conflict defense counsel have been appointed through panels of individual attorneys created and administered by the County Bar Associations, Assigned Counsel Panels commonly referred to as 18-B Panels. However, in January 2010, the City revised Title 43 of the Rules of the City of New York by adding Chapter 13, which provides that in the case of a conflict, counsel may be appointed from either Assigned Counsel Panels or from one of the legal aid providers.
Subsequent to the commencement of this proceeding, through discovery and representations made at oral argument, it has become evident that the City's ultimate goal is to have Legal Aid serve as the primary provider of conflict defense counsel. Petitioners claim that the City's new plan violates County Law § 722 and Municipal Home Rule Law § 11(1)(e). I agree.
Wednesday, March 14, 2012
A decision issued today from the Massachusetts Supreme Judicial Court:
On May 2, 2011, as part of a pilot project it has named "OpenCourt," WBUR-FM, a National Public Radio station in Boston, began to broadcast live by "streaming" over the Internet video and audio recordings of certain proceedings taking place in the Quincy Division of the District Court Department (Quincy District Court). We consider here three petitions for relief under G.L. c. 211, § 3, that relate to the OpenCourt project and were reported to this court by a single justice. Each petition challenges one or more orders of a judge in the Quincy District Court concerning the broadcasts and online posting of particular proceedings in two different criminal cases. In the first case, the Commonwealth appealed from the judge's order permitting OpenCourt to "post" to its public, online archives an audio and video recording of a criminal dangerousness hearing conducted pursuant to G.L. c. 276, § 58A. The Commonwealth argues that the judge abused his discretion and failed to protect the alleged minor victim's privacy. OpenCourt has brought a separate petition for relief in the Barnes case, challenging the judge's orders that required OpenCourt to redact the alleged victim's name from the recording and to stay temporarily public access to the online archive. As explained infra, OpenCourt has an internal policy prohibiting publication of the names of minor victims of sexual assault and does not wish to publish the name, but objects to the court order; OpenCourt's argument is that any restriction on its right to publish the recordings constitutes a prior restraint that violates the First Amendment to the United States Constitution.
Charles Diorio brought the third petition for relief. He appeals from orders permitting the broadcasting and public online archiving of both his July 5, 2011, arraignment in the Quincy District Court, and a motion hearing held on July 25. Diorio contends that the judge abused his discretion and prejudiced Diorio's constitutional right to a fair trial by allowing the hearings to be broadcast and by not requiring the recordings to be removed from OpenCourt's online archives.
We conclude that any order restricting OpenCourt's ability to publish--by "streaming live" over the Internet, publicly archiving on the Web site or otherwise--existing audio and video recordings of court room proceedings represents a form of prior restraint on the freedoms of the press and speech protected by the First Amendment and art. 16 of the Massachusetts Declaration of Rights, as amended by art. 77 of the Amendments to the Massachusetts Constitution. Such an order may be upheld only if it is the least restrictive, reasonable measure necessary to protect a compelling governmental interest.
In the Barnes case, we vacate the order of the District Court judge requiring the redaction of the name of the minor alleged victim. We expect and anticipate that OpenCourt will continue to adhere to its policy of not publishing the name of the minor, but agree that on the record of this case, the judge's order was unconstitutional because the Commonwealth did not provide an adequate demonstration that this particular minor's privacy or psychological well-being would be harmed by publication of her name, or that a prior restraint was the least restrictive reasonable method to protect those interests. In the Diorio case, we conclude that Diorio has not met the heavy burden of justifying an order of prior restraint with respect to the specific proceedings at issue in his petition for relief. Finally, we exercise our discretion pursuant to G.L. c. 211, § 3, to request that the Supreme Judicial Court's judiciary-media committee submit for this court's approval a set of guidelines for the operation of the OpenCourt pilot project.
The case is Commonwealth v. Barnes. (Mike Frisch)
Tuesday, March 13, 2012
From the web page of the Pennsylvania Disciplinary Board:
The Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility and the Professional Guidance Committee of the Philadelphia Bar Association have collaborated to produce Joint Formal Opinion 2011-100, regarding limited scope arrangements.
The Committees define “limited scope arrangements” to include two kinds of activities – unbundled legal services, in which a lawyer is engaged only to perform particular activities rather than undertake comprehensive representation of the client, and undisclosed representation, commonly referred to as “ghostwriting,” in which a lawyer prepares legal material for the client’s use but does not undertake direct representation of the client with a court or opposing party.
The opinion notes that limited scope arrangements are generally permissible under the Rules of Professional Conduct, and indeed are specifically contemplated in many of the rules.
The opinion notes that the comment to RPC 1.2 states that a limitation on representation must be reasonable under the circumstances. The fact that the representation is limited does not relieve the lawyer of the normal duty of competence and preparation under RPC 1.1. Second, the lawyer must be sure that the client has exercised informed consent to the limitation on representation. Informed consent is defined in RPC 1.0(e) as “consent by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” From the Restatement of the Law Governing Lawyers, the Committees drew five safeguards:
- a client must be informed of any significant problems a limitation might entail, and the client must consent;
- any contract limiting the representation is construed from the standpoint of a reasonable client;
- the fee charged by the lawyer must remain reasonable;
- any change made, an unreasonably long time after the representation begins must meet the more stringent test for post inception contracts or modifications; and
- the terms of the limitation must be reasonable under the circumstances.
The Committees provide a list of Rules of Professional Conduct which the lawyer entering into a limited scope engagement should consider:
- competent representation (RPC 1.1);
- diligence (RPC 1.2);
- communication (RPC 1.4);
- representation agreements (RPC 1.5);
- confidentiality (RPCs 1.6 and 1.9); and
- avoidance of conflicts of interest (RPCs 1.7, 1.8, 1.9, 1.10, 1.11, 1.12).
Finally, after an extensive examination of rules, court decisions, and ethics opinions nationwide, the Committees conclude that the lawyer engaged in limited scope representation is not under an obligation to disclose his or her role to either opposing parties or to a tribunal. The Committees note that there is quite a bit of divergent thought on these issues.
This short summary is no substitute for reading the 31-page analysis through which the Committees reach their conclusion, and the lawyer considering such employment would be wise to study the opinion firsthand.
The Wisconsin Supreme Court affirmed a decision of the Court of Appeals that reversed a conviction in a sex offender registration case.
Wisconsin requires a released offender to provide an address to authorities 10 days prior to release from prison. The defendant could not find housing within the time.
From the majority opinion:
We begin by clarifying what is not at issue in this case. It is undisputed that Dinkins was required to register, and continues to be required to register, as a sex offender. It is undisputed that, as part of his registration, Dinkins is required to provide his address. This case is not about whether homeless registrants are "exempt" from registration requirements. They are not.
Rather, this case presents the narrow question of whether, under the circumstances where Dinkins attempted to comply with the registration requirements but was unable to find housing, he can be convicted of a felony for failing to notify the DOC of "[t]he address at which" he would "be residing" upon his release from prison. To resolve this question, we must interpret the sex offender registry statute. Statutory interpretation is a question of law, which we review independently of the determinations rendered by the circuit court and the court of appeals...
It is undisputed that Dinkins did not have a home of his own. The evidence in the record suggests that Dinkins made efforts to secure housing with relatives, but these efforts were unavailing. A DOC agent testified that, other than facilitating contact between Dinkins and his relatives, the DOC did not offer him additional assistance. The circuit court's finding that Dinkins was unable to provide the required information to the DOC because it did not exist, despite his attempt to provide the information, is not clearly erroneous.
There are concurring and dissenting opinions. (Mike Frisch)
Thursday, March 8, 2012
The Associated Press reports:
The Mississippi Supreme Court upheld the pardons issued by former Gov. Haley Barbour during his final days in office, including several that freed convicted killers.
The Republican pardoned 198 people before finishing his second term Jan. 10, including four convicted murderers and a robber who worked as inmate trusties at the Governor's Mansion. Of those pardoned, 10 were in jail at the time.
Democratic Attorney General Jim Hood challenged the pardons. Hood argued before the Supreme Court on Feb. 9 that some pardons didn't meet the requirements of the Mississippi Constitution, which says people seeking pardons must publish notices for 30 days in a newspaper.
In a 6-3 opinion, the justices wrote "we are compelled to hold that — in each of the cases before us — it fell to the governor alone to decide whether the Constitution's publication requirement was met."
The 10 people who were incarcerated when Barbour pardoned them had the most at stake. Among those, five have been held in prison on a temporary restraining order pending the outcome of Hood's legal challenge. It was not immediately clear whether they would not be released.
The other five had already been released by the time Hood persuaded a lower court judge to issue that restraining order.
At the heart of the pardon dispute was Section 124 of the Mississippi Constitution, which says "no pardon shall be granted" by the governor until the convicted felon applying for the pardon publishes notice of that application for 30 days in a newspaper in or near the county where the crime was committed.
Hood contended that if ads weren't run in daily papers every day for 30 days, or weekly newspapers once a week for five weeks, the pardons weren't valid.
Barbour, who once considered a 2012 White House run, was limited to two terms as governor. In addition to the pardons, he also granted medical release and conditional clemency to some inmates, but they weren't required to give public notice.
The opinion is linked here. (Mike Frisch)
Wednesday, March 7, 2012
The Montana Supreme Court reversed a grant of summary judgment to an attorney and firm in a legal malpractice suit.
The attorney was retained to represent an individual client (and entities created on his behalf) in a boundary negotiation with a golf course. The client wished to develop adjacent property.
The attorney submitted a draft agreement to opposing counsel. The attorney for the golf course made a series of untracked changes in the agreement and returned it. The attorney did not review the changes and had the client sign it with the changes.
Thereafter, things went poorly for the client. The deal went south and the client lost his home. He filed a pro se suit against the attorney in the name of the entity. He then retained counsel, who filed suit in another county.
The key question was whether, for statute of limitations purposes, the suit initiated through counsel related back to the pro se suit. The court rejected the contention that the pro se suit in the name of the entity was a nullity. Rather, the remand directs the lower court to consider factors in resolving the "relate back" issue.
Practice pointer: Always make sure there are no untracked changes of opposing counsel in a document you have your client sign. (Mike Frisch)
Tuesday, March 6, 2012
Another day, another dissent from the Wisconsin Supreme Court.
Today's case involves whether the stink from accumulated bat guano is covered by an insurance policy on a vacation home at Lake Tomahawk, Wisconsin.
Justice Ziegler holds "no."
We conclude that the pollution exclusion clause in Auto-Owners' insurance policy excludes coverage for the loss of the Hirschhorns' home that allegedly resulted from the accumulation of bat guano. First, we conclude that bat guano falls unambiguously within the policy's definition of "pollutants." Second, we conclude that the Hirschhorns' alleged loss resulted from the "discharge, release, escape, seepage, migration or dispersal" of bat guano under the plain terms of the policy's pollution exclusion clause. Accordingly, the circuit court properly dismissed the Hirschhorns' complaint against Auto-Owners.
Justice Abrahamson, joined by Justice Bradley, dissents:
...instead of utilizing context to discern meaning, the majority uses a backward method. It first selects one dictionary definition from among many to define "'waste' [as] unambiguously includ[ing] feces and urine." Majority op., ¶35. The majority's selected dictionary definition ends the discussion of the meaning of "waste." The majority's approach fails in several respects. It fails to read words in the insurance policy in context to discern their meaning; it fails to read the insurance policy from the perspective of a reasonable insured; and it fails to construe ambiguities against the drafter and in favor of coverage.
Monday, March 5, 2012
From the web page of the Tennessee Supreme Court:
The Tennessee Supreme Court has approved the petitions of two attorneys to receive pro bono emeritus status. Through the Court’s pro bono emeritus program, retired attorneys may provide pro bono legal services through organizations that offer free legal services to Tennesseans who are unable to afford legal counsel.
Susan Carolyn Howard of Memphis and Charles E. Racine of Gallatin received pro bono emeritus status from the Supreme Court in January.
“We commend Ms. Howard and Mr. Racine for sharing their time and talents with the growing number of Tennesseans who cannot afford legal services,” Chief Justice Cornelia A. Clark said. “We hope more attorneys will follow their example by participating in this program and other opportunities to provide pro bono legal assistance.”
The pro bono emeritus program was established on Jan. 1, 2011, as part of the Court’s ongoing efforts to improve access to justice in the state. Three attorneys statewide have received this designation since the pro bono emeritus program was adopted.
The pro bono emeritus rule gives retired attorneys the authority to perform all legal work, without pay, on behalf of a client. Pro bono emeritus attorneys may represent the client in court with the approval of the judge hearing the case.
Retired attorneys who wish to participate in the program must file an application with the appellate court clerk’s office. They must have actively practiced law for five of the past 10 years or practiced law for 25 years preceding their application. The Supreme Court reviews all applications and provides a written approval to the attorney.
A recent announcement from the web page of the Louisiana Supreme Court:
Two Orders have been executed that amend provisions pertaining to Part I of the Bar examination. The first Order is effective immediately and amends the February 2012 Bar examination. The current scoring structure is retained, except that the conditional failure option has been eliminated. Therefore, applicants who have conditionally failed the examination will have one final chance to sit for the separate subject examinations required to pass at the February 2012 examination. See Rule XVII, Section 8(A) (effective October 19, 2011).
The Court has also placed a limitation on the number of times an applicant may sit for the Louisiana Bar examination. Applicants shall have only five (5) attempts to pass the Bar examination. See Rule XVII, Section 8(C) (effective October 19, 2011).
The second Order is effective on July 1, 2012. It implements a "compensatory scoring" system commencing with the July 2012 Bar examination, and sets 650 as the required score for passing (with Code subjects to be weighted twice as much as non-Code subjects).
In addition, applicants are required to sit for all nine (9) subject examinations and make a good faith effort to pass each subject examination, or they will fail Part I of the Bar examination. See Rule XVII, Section 7(A) (effective July 1, 2012).
Questions regarding the amendments to Rule XVII should be directed to the Committee on Bar Admissions at 504-836-2420.
Friday, March 2, 2012
A statement has been issued signed by faculty members, administrators and students at Georgetown Law in support of student Sandra Fluke:
Ms. Fluke had the courage to publicly defend and advocate for her beliefs about an important issue of widespread concern. She has done so with passion and intelligence. And she has been rewarded with the basest sort of name-calling and vilification, words that aim only to belittle and intimidate. As scholars and teachers who aim to train public-spirited lawyers, no matter what their politics, we abhor these attacks on Ms. Fluke and applaud her strength and grace in the face of them.
Monday, February 27, 2012
The Maryland Court of Appelas reversed the Court of Special Appeals and held that 'the consideration that one party was represented on a pro bono basis, in an award of attorneys' fees to the other party who had retained counsel was erroneous under [the statute governing awards of costs and fees in family law matters]" and remanded for reconsideration of the statutory factors.
The case involved a custody modification proceeding. The petitioner was represented pro bono by the Sexual Assault Legal Institute. Her ex-husband retained counsel and accumulated over $70,000 in legal fees.
The trial court ordered the petitioner to pay her ex-huband over $30,000 in legal fees and costs because "she was in a better financial position than [the ex-husband], due to her having received pro bono representation..." (Mike Frisch)
Monday, February 13, 2012
From the web page of the Rhode Island Supreme Court:
Before the Supreme Court was a request from the Unauthorized Practice of Law Committee (committee) for guidance on whether nonlawyer union representatives engage in the unauthorized practice of law in violation of G.L. 1956 § 11-27-2 when representing unions at public labor arbitration hearings.
After receiving a complaint filed by the Town of Little Compton (the town) against the Little Compton Firefighters Local 3957 (the union), the committee conducted an investigational hearing on the matter. In its complaint, the town contended that the union or its representative had engaged in the unauthorized practice of law in violation of § 11-27-2 when the union allowed its nonlawyer business agent to represent it at a labor arbitration hearing. The committee’s report to the Court ultimately concluded that the union representative’s actions on behalf of the union constituted a “technical violation” of the statute governing the unauthorized practice of law. Mindful that this type of lay representation of unions in labor arbitrations is a common practice in Rhode Island, the committee petitioned the Court for guidance on how to proceed in the matter. After reviewing the committee record, the parties’ written submissions and oral arguments, and the many amicus briefs filed, the Supreme Court declined to limit this particular practice at this point in time.
The court's opinion is linked here.
The court notes that the lay representation is "commonplace" in Rhode Island, although that fact is not dispositive. Rather, the court concludes that public policy favors the continuation of the practice. The arbitrations are more about the "law of the shop" than strict legal principles. (Mike Frisch)
Tuesday, February 7, 2012
The New Jersey Appellate Court has held that the litigation in last year's Republican primary permitted the incumbent to run in the general election for Morris County Freeholder was inproperly decided. An initial count had put the challenger ahead by 10 votes. A recount had him ahead by six votes.
A court action led to the incumbent being declared the primary winner.
The web page for Howes & Howes has this report on the decision of the Law Division:
During the course of the trial, there was evidence that Mr. Lyon failed to file certain campaign finance reports. Specifically, it was alleged that he failed to file the 48 hour report of expenditures that would have been required for him to disclose approximately sixteen thousand dollars worth of spending on a mail piece. It was further alleged that he filed the required report, that Ms. Nordstrom would have known about the mailer, and would have responded to the mailer. It was further alleged that the mailer was misleading and that the mailer had a direct impact on the outcome of the election.
The court held that since Mr. Lyon did not file the required disclosure, and that there was no defense for the failure to file, that the election was void.
The challenger, "Lyon for Conservative Freeholder," should have been certified as the primary winner. The court here thus removed the incumbent (who had won in the general election) and declared a vacancy in the position. (Mike Frisch)
Friday, January 20, 2012
An update on the Vanderbilt Law theft case from WKRN-TV news:
A second man has been arrested in connection to the theft of a large amount of money from Vanderbilt University.
According to Vanderbilt's newspaper, Samuel Wakefield was taken into custody Wednesday and charged with theft of more than $60,000.
The 30-year-old is the domestic partner of Jason Hunt, the former Vanderbilt law school employee accused of stealing $600,000 from the university.
Hunt was arrested last Friday in Arkansas.
Wakefield and Hunt reportedly moved to Puerto Vallarta, Mexico in December where they opened a nightclub.
Monday, October 31, 2011
The Oklahoma Supreme Court has entered an order providing that Bar Association members serving on active duty in the military in a combat zone may request waiver of annual bar dues:
Active OBA Members who are in an active duty and deployed status serving outside of the United States or one of its territories with the Armed Forces of the United States in a combat zone or receiving "Imminent Danger Pay" (Combat Pay) or "hardship duty pay" in any given year may request that dues be waived for that year. A request for a waiver of dues, along with sufficient supporting documentation of service, shall be submitted to the Executive Director of the Oklahoma Bar Association as soon as reasonably practical. Members requesting such dues waiver shall have the right to appeal any administrative decisions made by the Executive Director to the Board of Governors of the Oklahoma Bar Association and ultimately to the Oklahoma Supreme Court. In the event the member is not able to submit the request personally, such request can be made by a family member, law partner or other such person having authority to act on behalf of the member.
The yearly dues are $275.00 (Mike Frisch)
Friday, August 5, 2011
The North Carolina State Bar has an opinion setting guidelines for an law firm's use of a live chat room:
Although the use of this type of technology is permissible, the practice is not without its risks, and a law firm utilizing this service must exercise certain precautions. The law firm must ensure that visitors who elect to participate in a live chat session are not misled to believe that they are conversing with a lawyer if such is not the case. While the use of the term “operator” seems appropriate for a nonlawyer, a designation such as “staff member,” or something similar, would require an affirmative disclaimer that a nonlawyer staff member is not an attorney. The law firm must ensure that the nonlawyer agent does not give any legal advice.
The law firm should be wary of creating an “inadvertent” lawyer-client relationship. In addition, the law firm should exercise care in obtaining information from potential clients and be mindful of the potential consequences/duties resulting from the electronic communications. Rule 1.18 provides that a person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client and that, even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client may generally not use or reveal information learned in the consultation. Furthermore, Rule 1.18(c) prohibits a lawyer from representing a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter. Therefore, acquiring information from a prospective client via the live chat service could create a conflict of interest with a current client that would require withdrawal.
The rules governing solicitation do not apply to communications not initiated by the attorney. (Mike Frisch)
Thursday, August 4, 2011
The District of Columbia Court of Appeals amended a comment to its Rule of Professional Conduct 6.1 on pro bono activities:
 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)
 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.
Tuesday, July 26, 2011
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)
Monday, July 25, 2011
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)
Wednesday, July 6, 2011
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)