July 09, 2011
A criminal conviction for two counts of rape and a count of misdemeanor theft was reversed by the Kansas Supreme Court as a result of misconduct on the part of the prosecutor. The court employed a two-step analysis of the misconduct and its consequences in determining that reversal was appropriate.
The prosecutor made reference during voir dire in at trial to the Stockholm Syndrome and other cases and later argued facts not in evidence:
More regrettably, the prosecutor's overall comments implied he was an authority on the Stockholm Syndrome and was capable of diagnosing an individual as suffering from this purported condition. He clearly was neither. Ironically, the [Patty]Hearst and Hornbeck cases the prosecutor discussed with the panel were two of those the journal authors studied before concluding: "No validated diagnostic criteria for 'Stockholm syndrome' have been described; existing literature is of limited research value and does little to support 'Stockholm syndrome' as a psychiatric diagnosis."
The prosecutor also made a comment in closing argument that the victim would remember the crime every time she took a shower. An objection was sustained and admonition given to the jury. The court found the remark improper and prejudicial.
The court reversed the Court of Appeals.
It is, I think, somewhat unusual for a claim of misconduct based principally on behavior during voir dire to result in a new trial. (Mike Frisch)
July 06, 2011
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)
May 26, 2011
The New York Appellate Division for the First Judicial Department affirmed the dismissal of tort claims against an Epstein Becker attorney and the firm in a suit claiming complicity in a co-defendant's theft of "personal and revealing photographs of plaintiff taken by her husband" to be returned only on payment of $2.5 million to settle claims of sexual harassment and retaliation.
The court concluded:
The allegations against the law firm and the individual attorney defendant also were correctly dismissed. The complaint contains, at most, wholly conclusory allegations that defendant Wigdor, the attorney for the other individual defendants, knew to be true what plaintiff's husband alleges to be true, that [co-defendant]] Pecile had stolen one of the two compact discs containing photographs of plaintiff after improperly viewing the contents of the discs. Regardless of how implausible Pecile's claim that she retained one of the discs inadvertently may be, at most the complaint implicitly alleges that Wigdor knew that Pecile's claim was false and that she in fact had stolen them, as plaintiff's husband claims. But any such implicit allegation is wholly conclusory.
Moreover, there is no allegation that Wigdor played the slightest role in any of the actions Pecile took to obtain possession of the discs and photographs in the first place. Of course, Wigdor knew that Pecile had no right to possess the photographs and, as is undisputed, he refused the demand of plaintiff's husband that they be returned immediately. Rather, Wigdor stated that he could not return the photographs because they were evidence of the alleged unlawful conduct of plaintiff's husband, as they indeed are if, as Pecile maintains, he committed the alleged conduct. About two months after the demand was refused, Wigdor turned the photographs over to a third party; he contends that neither he nor his firm ever had possession of the compact disc.
We need not determine whether Wigdor wrongly refused the unconditional demand for the immediate return of the photographs. Even if he should have acceded to the demand, the allegations in the complaint provide no basis for depriving him of immunity from liability "under the shield afforded attorneys in advising their clients, even when such advice is erroneous, in the absence of fraud, collusion, malice or bad faith" (citation omitted)...To the extent the complaint alleges fraud, collusion, malice or bad faith on the part of Wigdor, the allegations are wholly conclusory. If the shield does not deflect these allegations, it is so flimsy as to be of little use.
The court declined to impose costs. (Mike Frisch)
May 24, 2011
Non-Party Standing For Motion To Disqualify Counsel
The Wisconsin Supreme Court reversed and remanded a case, concluding that a non-party had standing to raise disqualification of counsel but that the lower court improperly applied an "appearance of impropriety" test to the motion:
...to determine whether disqualification is required, a court must determine: (1) whether there was an attorney-client relationship and whether it has ceased; (2) whether the subsequent representation of another person involves the same or a substantially related matter; (3) whether the interests of the subsequent client are materially adverse to those of the former client; and (4) whether the former client consented to the new representation. In the instant appeal, it is undisputed that an attorney-client relationship had existed between the Cramer firm and Wayne Foster and the Foster Group and that the Cramer firm no longer represented Wayne Foster or the Foster Group at the time the slip-and-fall litigation began. Furthermore, no one asserts that the former clients (Wayne Foster and the Foster Group) have consented to the Cramer firm's representation of the plaintiffs in the present case...
We conclude that the circuit court applied an incorrect standard of law in disqualifying the plaintiffs' attorney, namely disqualifying the attorney on the basis of the "appearance of impropriety." Given the paucity of facts in the record relating to the attorney's prior representation of the Foster Group and Wayne Foster, we are unable to determine whether the two representations are substantially related such that the confidences of the Foster Group and Wayne Foster are implicated in this personal injury action or whether the current representation is materially adverse to the former client.
We cannot determine from the record before us whether the circuit court's order disqualifying the plaintiffs' attorney is erroneous when applying the correct standard. Accordingly, we reverse the order of the circuit court disqualifying the plaintiffs' attorney and remand the matter to the circuit court for such further proceedings as the circuit court determines are appropriate to resolve the question presented.
Justice Prosser (joined by Justices Ziegler and Gableman) concurred but
In reaching this result, however, the lead opinion engages in a lengthy review of Wisconsin cases and produces, in effect, a restatement of the law. It is this restatement of Wisconsin law on standing that triggers two concurrences and some angst.
To the extent that the lead opinion attempts to bring order out of chaos in our law on standing, it serves a constructive purpose. We all benefit when the court provides a clear restatement of the law. However, if the restatement changes the law while purporting simply to clarify it, it goes beyond the facts, effects a result that was neither requested nor briefed by the parties, and creates confusion among the bench and bar.
May 19, 2011
No Appealable Order In Divorce Disqualification
The Ohio Supreme Court web page reports:
The Supreme Court of Ohio ruled today that the denial of a motion to disqualify opposing counsel in a divorce proceeding is not a “final” order subject to immediate appeal.
The Court’s 6-0 decision, which affirmed a ruling by the 9th District Court of Appeals, was authored by Justice Yvette McGee Brown.
The case involved a divorce action between Jeffrey R. Kissinger and Beth A. Wilhelm-Kissinger of Summit County. During the proceedings, a dispute arose regarding allegedly illegally obtained and privileged email messages between Kissinger and his attorney that Wilhelm-Kissinger had apparently taken from Kissinger’s computer and given to her attorney. Kissinger moved the Summit County Court of Common Pleas Domestic Relations Division to disqualify Wilhelm-Kissinger’s attorney. After a hearing in which Wilhelm-Kissinger’s attorney reported that he never sought or reviewed any of the email messages in question, the trial court denied the disqualification motion.
Kissinger appealed. The 9th District Court of Appeals dismissed Kissinger’s appeal, based on its determination that it had no jurisdiction to hear the case because the denial of a motion to disqualify opposing counsel was not a final, appealable order under R.C. 2505.02(B)(4). In response to a motion by Kissinger, the 9th District certified a conflict between its ruling in this case and a 2003 decision of the 10th District Court of Appeals, Crockett v. Crockett, in which that court held that denial of a motion to disqualify opposing counsel was a final, appealable order.
The Supreme Court agreed to review the case to resolve the conflict between appellate districts.
Writing for the Court in today’s unanimous decision, Justice McGee Brown noted that under the applicable statutory criteria for a final appealable order, Kissinger must show that the trial court order denying his motion was made in a “special proceeding” and that it affected a substantial right. Since prior Supreme Court decisions have held that a divorce action qualifies as a “special proceeding,” Justice McGee Brown said the remaining question for the Court to answer was whether denial of a motion such as Kissinger’s in this case affects a substantial right.
She wrote: “An order affects a substantial right for the purposes of R.C. 2505.02(B)(2) only if an immediate appeal is necessary to protect the right effectively. ... Covered rights include any ‘right that the United States Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce or protect.’ ... We have previously held that a decision granting a motion to disqualify opposing counsel is a final, appealable order that a party deprived of counsel can appeal immediately. ... We now address whether in the special proceeding of divorce, an order denying a motion to disqualify opposing counsel also qualifies as a final, appealable order under R.C. 2505.02(B)(2).”
“Orders granting and denying disqualification of counsel differ in two key respects. First, an order granting disqualification immediately and definitely affects the party it deprives of chosen counsel; the purpose of appealing such an order is to prevent the removal itself. By contrast, an order denying disqualification, standing alone, affects no right held by the unsuccessful movant because there is no substantial right to disqualify opposing counsel. Second, an order granting disqualification typically imposes a permanent effect because it is unlikely to be reconsidered as a trial progresses. ...Therefore, a grant of a motion to disqualify counsel must be appealed immediately or its effect will be irreversible.”
“An order denying disqualification, however, lacks a similarly permanent effect. ... That order may be revisited throughout trial, and the party seeking disqualification may pursue other avenues, such as disciplinary proceedings, to address any improprieties that occur. With these differences in mind, we cannot conclude that an order denying disqualification in the divorce context requires immediate appeal to ensure the protection of a substantial right. Accordingly, although it occurs in a special proceeding, such a denial is not a final, appealable order under R.C. 2505.02(B)(2).”
Justice McGee Brown’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp. Chief Justice Maureen O’Connor did not participate in the Court’s deliberations or decision in the case.
The opinion is attached here. (Mike Frisch)
April 26, 2011
Sketchy Reasons For Disqualification
The Maryland Court of Appeals reversed a criminal conviction for common law murder because the trial court had disqualified retained counsel. The attorney for the co-defendant brought to the court's attention that one of the three retained counsel had spoken to her client and that such conduct involved potential Rule 1.18 (duty to prospective client) and/or 4.2 (unauthorized communication with represented person) violations. The State expressed concern that the attorney whose conduct was at issue had improperly coached a witness.
The trial court had conducted a hearing and ordered disqualification. Here, the court agreed with the defendant that the basis for disqualification was "sketchy." The trial court must conduct an "adequate inquiry into the circumstances underlying the purported conflict to determine whether there is an actual or serious potential for conflict." The inquiry of the trial court was not sufficent. The error was structural and prejudice is assumed.
A concurring/dissenting opinion would defer to the trial court's exercise of discretion. (Mike Frisch)
April 25, 2011
A Jury Question
The Maine Professional Ethics Commission has issued an opinion on the propriety of a waiver of right to a jury trial in a retainer asgreement in the event of a dispute between attorney and client. The bottom line:
The Commission concludes that a client’s informed consent to a jury trial waiver in an engagement agreement must be confirmed in writing and that prior to agreeing to such a limitation, the client must be advised in writing of the desirability of seeking, and given a reasonable opportunity to seek, the advice of independent legal counsel. In contrast to arbitration agreements, there is no public policy favoring the waiver of jury trials, and a limitation that excludes the right to a jury trial has potentially serious constitutional dimensions. Hence, a jury trial waiver is of a commensurate level of importance with business transactions between lawyers and clients or the settlement of potential or actual claims for liability.
Clients range from extremely sophisticated business clients to those with limited mental capacity. What constitutes “informed consent” for different clients within that spectrum will, as a result, vary as will the resulting written confirmation. The sophisticated client will in all likelihood already understand that they can retain independent legal counsel when entering into an engagement agreement as they can with any other contractual arrangement. It costs nothing to inform that client of the desirability of doing so in the context of a jury waiver agreement, while for those clients who would have difficulty evaluating the desirability of such an agreement before a dispute has arisen, it emphasizes to them the importance of the issue.
The answer to the question posed is therefore that while the Maine Rules of Professional Conduct do not prohibit engagement agreements from stating that “[i]n the event that a dispute between us ends up in court, both parties agree that it shall be tried exclusively in a court in Maine without a jury,” they do require that the client be fully informed as to the scope and effect of a jury waiver, that the client’s informed consent be confirmed in writing, and that the client be advised in writing of the desirability of seeking, and given a reasonable opportunity to seek, the advice of independent legal counsel prior to entering into such an agreement.
April 15, 2011
Certain Flaws But No Sanction....Yet
The Wisconsin Court of Appeals affirmed the dismissal of a civil case with the following admonitory language to plaintiff/appellant's counsel:
For future reference of appellant’s counsel, we also note certain flaws in the brief. The brief lacked sufficient citations to the record. See Wis. Stat. Rule 809.19(1)(d) and (1)(e). This deficiency makes the work of opposing counsel and the court more difficult than it should be. If the deficiency had been brought to our attention earlier by a motion to strike, we likely would have rejected the brief. The brief’s appendix also fails to provide the decision of the trial court, as required by Wis. Stat. Rule 809.19(2)(a). In spite of that obvious deficiency, appellant’s counsel signed a certification stating specifically, but inaccurately, that the appendix contained “the findings or opinion of the circuit court” and “oral or written rulings or decisions showing the circuit court’s reasoning regarding” the issues raised. We exercise our discretion not to impose a monetary sanction in this case, but caution counsel that similar filing in the future may lead to sanctions.
Fair warning. (Mike Frisch)
March 23, 2011
Witness Advocate Rule Applied
The New York Appellate Division for the First Judicial Department affirmed an order disqualifying counsel in civil litigation:
Plaintiff law firm demonstrated that defendant's counsel played a vital role in the final settlement negotiations flowing from a settlement offer that plaintiff had allegedly previously procured and that defendant client later accepted, that the negotiations were an important part of the underlying dispute, that defendant's counsel was likely to be a key witness at trial, and that his proposed testimony would be adverse to his client's interests.
While plaintiff improperly submitted the affirmation, rather than affidavit, of a partner, under the circumstances, "this defect was merely a technical procedural irregularity which did not prejudice the defendant" (citations omitted)
March 22, 2011
The Answer Is No Answer (Respectfully)
The San Diego County Bar Association has a recent ethics opinion on the dilemma faced by a defense attorney questioned by a judge about a non-appearing client:
Analyzing all of these rules and ethics opinions, we conclude that in California, Attorney is not able to answer the judge’s question either way. She is not able to be dishonest with the court due to her duty of candor, and she is not at liberty to disclose the information imparted to her by Client’s mother the night before, because even though that information was not relayed to her by her client and therefore is not protected by the attorney-client privilege, it nonetheless constitutes confidential information.
The more difficult issue is whether Attorney is permitted to say anything at all in response to the court’s question regarding whether she “had any idea why her client was not there.” If Attorney answers in the negative, she is in violation of her duty of candor to the court per Rule 5-200 and Bus. and Prof. code section 6068(d) because she does have an idea, as relayed by Client’s mother the night before. If, however, Attorney answers “yes,” she arguably violates her duty of confidentiality under Cal. Bus. and Prof. code section 6068(e) because that answer would cause a harmful inference to be drawn to the detriment of her client, thus violating Attorney’s duty not to reveal client confidential information. Certainly if there were an exculpatory and unexceptional [see parenthetical note] reason Attorney’s client was not in court, Attorney would be free to reveal that information, because it would not qualify as information “which the client has requested to be inviolate or the disclosure of which might be embarrassing or detrimental to the client” (Cal. State Bar Formal Op. 1993-133 [citing Cal. State Bar Formal Opn. Nos. 1980-52 and 1981-58]).
Under our facts, Attorney’s only ethical option is to inform the court respectfully that due to applicable ethical rules she is not at liberty to answer the question.
Hat tip to Wally Mlyniec for passing this along. (Mike Frisch)
March 21, 2011
Multiple Representation Results In Habeas Relief
The Georgia Supreme Court affirmed the grant of habeas corpus relief to a defendant who had been charged with kipnapping and pled guilty to false imprisonment. After serving a sentence of probation, the defendant (a lawful permanent resident from Uzbekistan) was scheduled for deportation. He then moved to vacate his plea. The State appealed the grant of the writ.
The kidnapping charges arose from an incident where the defendant was driving a car with a friend in the passenger seat. They
came upon a young woman, in whom [the friend] had a romantic interest, and they pulled up to her. [The friend] got out and physically forced the victim into the car, telling her that he loved her; the men drove around for a few minutes; and they released her near the place they had picked her up.
One attorney represented both defendants in the ensuing criminal case. The friend retained and paid the attorney. The defendant never met with the attorney outside the presence of the friend or the friend's family. The attorney never raised the issue of potential conflicts or told the defendant her could secure his own counsel. Nor did the attorney advise the defendant of possible deportation. (Mike Frisch)
March 11, 2011
Data on the "Employed at Graduation" U.S. News Rankings Input
Yesterday, Bob Morse of U.S. News published a blog post in which he signaled a change in the law school rankings methodology, specifically with regard to employment. The prevailing view on the law school administrator list-serves (which nearly a dozen people have forwarded to us) is that U.S. News will be increasing the weighting of "employed at graduation," presumably because U.S. News Editor Brian Kelly sent a letter to law school deans--reprinted in Bob's blog post--discussing the importance of employed-at-graduation as a metric.
We have zero inside information, but we are willing to bet a substantial sum that any methodology change will be in a completely different direction. Here is why. Over the last decade, fewer and fewer schools have been supplying U.S. News with employed-at-graduation data. Employment at graduation is not a statistic required or collected by the ABA; as such, its accuracy cannot be checked through cross-reference to the annual ABA-LSAC Official Guide.
But much more significantly, when a school fails to provide this data, U.S. News has--up until now--imputed the figure based on employment at 9 months. (Kudos to Ted Seto for unraveling this mystery. See Understanding the U.S. News Law School Rankings.) Crudely speaking, the magazine applied a roughly 30% discount rate on the employed at 9 months figure. Earlier this year, Paul Caron suggested that if a school's employed-at-graduation rate is more than 30% lower than its employed at 9 month rate, it is "rankings malpractice" to supply U.S. News with the data.
As readers can see from the above chart (generated by Paul Caron in his rankings malpractice post), a large proportion of law schools have figured out the payoffs. Over the last decade, the percentage of non-reporting schools has skyrocketed. With this information in mind, Bob Morse's blog post may seem less cryptic: [after the jump]
In an effort to make our law school employment data more reflective of the current state of legal employment, U.S. News has modified how we calculate the employment rates that are used in the new law school rankings. ...
U.S. News agrees with the efforts of Law School Transparency to improve employment information from law schools and make the data more widely available.
If the goal is (a) to utilize data that better reflect reality, and (b) provide greater transparency and access to such data, it makes no sense to increase the weight of an input (employed-at-graduation) that is either withheld by law schools or is heavily gamed. This latter point is made by U.S. News Editor Brian Kelly in his letter to the deans:
[E]mployment after graduation is relevant data that prospective students and other consumers should be entitled to. Many graduate business schools are meticulous about collecting such data, even having it audited. The entire law school sector is perceived to be less than candid because it does not pursue a similar, disciplined approach to data collection and reporting.
At U.S. News, we work to make meaningful and fair comparisons, based on industry-accepted data. ...
To eliminate some of the gaming that seems to be taking place, we have changed the way we compute employment rates for the rankings due out March 15. In addition, we will also be publishing more career data than we have in the past in an effort to help students more completely understand the current state of legal employment. We think more still needs to be done.
So Kelly is saying that employed at graduation data are important, and the magazine is tired of being gamed. Therefore, we think two methodogical changes have a good chance of being implemented:
- U.S. News is likely to heavily penalized schools that withhold the employed at graduation data. Going forward, the imputation may be far more negative than -30% off of employed at 9 months. A drop in rankings will stop in its tracks the non-response problem.
- Regarding perceptions of gaming, it is possible that U.S. News has formulated a way to quantify how many jobs at graduation map onto full-time professional jobs that require a law degree. For example, the ABA Official Guide provides lots of comparable data by practice setting. Law firms, judicial clerks, and government jobs could be weighted more heavily than business or academic jobs. Unknown may also be treated as 100% unemployed rather than the current 25% presumption of employment. Such changes would have the law schools scrambling to report better numbers in higher weighted categories rather than just finding ways to goose up the employed-at-graduation and employed-at-9 months figures. Remember that Bob Morse explicitly endorsed the Law School Transparency movement.
We would like to suggest to our colleagues in the legal academy that we are approaching an endgame. Here is the reality: prospective students are not being given an accurate picture of their future employment prospects. Why? Because we are all focused on filling next year's class with as many high credential students as possible, thereby protecting our school's place in the pecking order. Our focus is so shockingly narrow that, from the outside looking in, it appears that our intent is to deceive incoming students. Brian Kelly's letter to the deans essentially makes that point--law schools fall short on candor and ethical behavior.
The numbers that get submitted to U.S. News include many graduates who are technically employed but often significantly underemployed, often at positions that don't require law degrees. Finer grained data get reported to NALP, but they are never published on a school-by-school basis. If these data were released, prospective students may not fully process the information--that is an argument that we often hear law professors make. But that does not alter our duty to provide "basic consumer information ... published in a fair and accurate manner reflective of actual practice." ABA Accreditation Standard 509.
At some point, all our lawyerly rationalizations will come to a bad end because a governmental agency or a court is going to challenge our right to self-regulation, thus ushering in a truly disgraceful chapter in the history of American legal education.
Now is one of the very few moments in our careers as academics where we have to make hard choices and demonstrate that we warrant the trust and respect of our tenured positions. Through our governance organizations (ABA, LSAC, NALP, AALS), we need to implement a system of complete transparency on employment outcomes. If the system has real teeth, it will force us all to work very hard to ensure we are delivering value commensurate with the tuition dollars we collect.
It's the end of the road. We likely have one last chance to get it right.
March 02, 2011
Defense Attorney Arranges Drug Buy To "Impeach" Informant; Criminal Conviction Affirmed
The Indiana Court of Appeals has affirmed a criminal conviction for attempted possession of marijuana by a criminal defense attorney who had claimed his actions were legally justified in defense of a client. It is quite a tale.
The attorney was defending a case involving felony methamphetamine dealing charges. He knew the identity of the state's confidential informant. His plan was to destroy the informant's credibility by showing that he was still dealing drugs. He arranged for two juveniles to purchase marijuana from the informant and assured the two that the conduct was legal.
He provided the juveniles with $200 to fund the purchase, recorded the serial numbers and arranged to tape the buy. The buy went down, but the juveniles were not totally trustworthy. They used $50 to buy a smaller amount of marijuana and used the rest for their own purposes. The attorney did not take possession of the drugs, but told the juveniles to hold the evidence. Once again they proved less than trustworthy. They smoked it instead.
The attorney sought the $200 from the client's mother, telling her that it was a litigation cost.
The attorney called upon the police and a prosecutor to take possesion of the marijuana, bringing the conduct to light. As a result, he was charged with the crime.
The court rejected a number of contentions. The attorney did not stand on the same footing as a law enorcement official conducting an undercover drug buy:
In sum, [the attorney] asks this court to grant him the same “legal footing” as law enforcement officers for the purpose of conducting an illegal drug buy in an effort to discredit a witness against his client. The legislature has clearly identified those persons legally authorized to engage in law enforcement, and defense attorneys are not included....An attorney is not exempt from the criminal law even if his only purpose is the defense [of] his client...This is not a close case."
Thanks to Don Lundberg for sending this along. (Mike Frisch)
February 11, 2011
What You Don't Do When You Think (Or Even Know) That Your Client Is Guilty
A conviction for simple robbery was reversed by the Kansas Supreme Court as a result of the trial court's failure to grant the attorney's motion to withdraw. At an ex parte chambers conference, the attorney stated to the judge that he had reviewed a surveillance video and concluded that it depicted his client in the act of the crime. The client denied it and the video was "grainy." The attorney contended that he was precluded "from presenting the evidence that [the client] wanted introduced."
The court found that the attorney's position
ignore[d] the separation of duties in a criminal prosecution...[the attorney's] duty as defense counsel was to advocate for his client, including the presentation of any truthful, relevant evidence that would assist in his client's defense. [The attorney] exceeded the scope of his duties as defense counsel and invaded the province of the jury when he performed the fact-finding function of identifying the robber in the videotape as his client and, based thereon, made the determination that his client was guilty. Accordingly, if [the attorney's] refusal to introduce evidence on [the client's] behalf was based on [his] out-of-bounds determination of guilt, rather than on the falsity of the evidence, [the client's] dissatisfaction was justified.
November 01, 2010
Public Defender Conflict Does Not Warrant Reversal
The Montana Supreme Court on Thursday upheld the conviction of Anthony St. Dennis in the 2007 beating death of Forrest Clayton Salcido, a sometimes-homeless veteran from Missoula, saying there was no conflict of interest in his defense.
Both St. Dennis and his co-defendant in the case, Dustin Strahan, were represented by public defenders, a situation that Missoula attorney Colin Stephens claimed violated St. Dennis' constitutional rights.
In response to that appeal, the state contended that "significant hardships" would arise if the Supreme Court ruled that the public defender's office could not represent co-defendants.
St. Dennis, who was an 18-year-old Hellgate High School senior at the time, was one of two men accused of fatally beating and stomping Salcido, 56, near the California Street footbridge along the Clark Fork River trail in Missoula.
Strahan, then 21, testified against St. Dennis when the latter was convicted of deliberate homicide by a Hill County jury in Havre, where the case was moved because of pretrial publicity. St. Dennis eventually was sentenced to 100 years in prison, ineligible for parole for 40 years.
Strahan then cut a deal, pleading guilty to accountability for deliberate homicide in Salcido's death.
Stephens argued to the Supreme Court in July that "one is directly pointing the finger at the other and is represented by an attorney out of the same law firm" - in this case, the Montana Office of Public Defender.
But the Supreme Court found in its 22-page opinion Thursday that such situations should be considered on a case-by-case basis. The court also rejected St. Dennis' contention that the District Court abused its discretion when it denied his requests for immunity for a proposed witness. And it denied his motion for a new trial.
The main focus of the opinion, however, concerned the conflict issue.
"Clearly, no system is fool-proof," Justice Patricia Cotter wrote in the majority opinion. "A conflict of interest could at some point arise out of OPD's operations. However, given the current strong precautions and safeguards, including ethical walls, in place at OPD, dual representation of co-defendants by attorneys in different offices has not created an actual conflict of interest."
Chief Justice Mike McGrath, as well as Justices Michael Wheat, William Leaphart, Jim Rice and Brian Morris concurred.
Justice Nelson dissented and would find that the treatment of the two public defender offices as separate firms to be "an artificial distinction that is not supported by actual practice within the public defender system...In point of fact, the idea that regional public defender offices are separate and independent is a myth."
Justice Nelson notes that the same public defender appointed the attorneys for both defendants, which "indicates that [the deputy public defender's] authority and supervisory capacity extended over all four attorneys. " The two clients were, most assuredly, directly adverse to each other.
The majority took the ACLU as amicus to task for referring to correspondence outside the record. Justice Nelson contends that the letters at issue "exemplify [the deputy public defender's] authority over and supervision of the counsel he appointed from both regional offices." The letters reflect that the deputy public defender "chastise[d one of the supervised attorneys] for the position she was taking...regarding the examination of some of the physical evidence by an OPD approved expert in Florida." She responded that "they are supposed to be acting as separate offices with respect to these two cases and, as such, she would not hesitate to act in her client's best interests."
Justice Nelson would remand to the district court to consider the conflicts issue in light of the information reflected in the letters.
There may be a problem with the link. The case is State v. St. Dennis, decided October 28, 2010. (Mike Frisch)
October 25, 2010
Power Of Attorney
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline has issued an advisory opinion addressing a lawyer’s use of a contingent fee agreement in which a client grants a power of attorney to the lawyer as to all aspects of a legal matter.
Opinion 2010-6 notes the “ethical risks” that exist with a power of attorney granting a lawyer authority to make all decisions and execute all documents that the lawyer deems necessary in a client’s contingent fee matter. It also states that “in the absence of extraordinary circumstances, the practice is unethical for the lawyer and shortchanges the client’s role in legal representation.”
The opinion finds that “such use of a broad power of attorney in a contingent fee agreement contravenes Prof. Cond. Rule 1.2(a) by improperly allocating all of the authority regarding the representation from the client to the lawyer and disregards Prof. Cond. Rule 1.4(a) by eliminating required communication by the lawyer to the client.”
The opinion further notes that “a lawyer’s contingent fee representation of a client in a civil matter requires skillful communication. A lawyer must communicate effectively to understand the client’s objectives of representation, explain settlement offers, reach agreement to settlement terms, obtain necessary client signatures, and disburse settlement proceeds. Such communication is a time honored legal skills, but is a time laden process.”
A copy of the opinion is available at: http://www.supremecourt.ohio.gov/Boards/BOC/Advisory_Opinions/2010//op_10-006.doc.
October 18, 2010
Fall Newsletter by AALS Professional Responsibility Section Is Available for Download, Packed with Info
Through the generosity of the AALS Section on Professional Responsibility and the hard work of many people and especially its editor Margaret Tarkington, a BYU law prof who is visiting at Cinncy right now, comes the fall newsletter: Download Fall_2010_Newsletter. It contains recent developments, bibliography, a letter from the Chair, and announcements including job postings, conferences, calls for papers, and the like. Margaret's own recent article contributing to this field is The Truth Be Damned: The First Amendment, Attorney Speech, and Judicial Reputation, 97 GEO. L.J. 1567 (2009). [Alan Childress]
September 19, 2010
Rotunda to Speak at Akron Law as Miller-Becker Lecturer on 10/29/10
The second Miller-Becker Center for Professional Responsibility Distinguished Lecture in Professional Responsibility is scheduled for Friday, Oct. 29, 2010, at 4:00 P.M. at the University of Akron School of Law. Ronald D. Rotunda, the Day & Dee Henley Chair and Distinguished Professor of Jurisprudence, of Chapman University School of Law, is the Distinguished Lecturer and his presentation is entitled Lawyers: Why We Are Different and Why We Are the Same. Rotunda's presentation, in part, asks: “To what extent do the ethics rules make lawyers different from other professionals?" He is shown right.
This is right on the heels of a great new contribution to the field by the center: its first symposium law review issue on the legal profession, this one on the topic of Lawyers without Borders and Practicing Law in the Electronic Age, 43 Akron L. Rev. 1-1105 (2010), and featuring articles and essays by excellent scholars in those areas. I really appreciate that they mailed one to me and lots of other teachers of legal ethics, and I have it sitting on my desk. Well done.
June 21, 2010
Public Defender Contempt Reversed; Prosecution Lacked Imagination
The Kansas Supreme Court reversed a finding of criminal contempt against a county chief public defender who had refused to testify in response to the prosecutor's subpoena.
The public defender had represented a defendant in a first degree murder case. A client represented by the public defender's office in an unrelated case was incarcerated with the defendant. That client advised a public defender attorney of an intent to commit perjury at defendant's trial. The public defender advised the court of this (but did not identify the potential perjurer) and was granted leave to withdraw.
The prosecutor then dropped the charges. When charges were refiled, the prosecutor issued a subpoena to the public defender seeking to compel the disclosure of the other client's identity. There were seven public defender clients who were locked up with the defendant.
The court applied the Kansas Rule of Professional Conduct 3.8(e) governing subpoenas to defense counsel and held that the withdrawing public defender's
summary of her former client's expression of an intention to commit perjury...is the only evidence, and merely reed-thin circumstantial evidence, that the former client sought legal services from the public defender's office "in order to enable or aid the commission or planning of a crime or tort."
The summary did not waive the attorney-client privilege. Indeed, the public defender admitted that she had made disclosures in violation of the duty of confidentiality. The court held that the record failed to establish that the prosecution had no feasible alternative to obtain the information sought from defense counsel:
Although [the detective who testified at the contempt hearing] said he believed that there were no other possible avenues of investigation, as oral argument to this court demonstrated, it would have taken little time and less imagination to discern other directions and strategies more likely to lead to helpful information. Unless these directions and strategies were implemented and failed, the State did not demonstrate that there were no feasible alternatives other than to coerce [the public defender's] testimony.
June 07, 2010
Silence Confesses Error
The Nevada Supreme Court reversed a conviction for second-degree murder and related offenses due to the State's failure to properly respond to an issue raised on behalf of the appellant:
In this appeal, we have the duty to publicly reiterate the importance of submitting attentive appellate briefs and the unfortunate obligation to address the unforgiving consequences resulting from a respondent’s failure to respond to relevant issues raised on appeal. In his opening brief, appellant...Polk argues that his constitutional right to confrontation under the Sixth Amendment of the United States Constitution and Crawford v. Washington, 541 U.S. 36 (2004), and Melendez-Diaz v. Massachusetts, 557 U.S. ___, 129 S. Ct. 2527 (2009), was violated when the findings of a gunshot residue analyst who did not testify at trial and was not subject to cross-examination were admitted. In its answering brief, the State failed to directly address the Crawford and Melendez-Diaz issue or argue, alternatively, that any potential constitutional violation was harmless error. Polk argues in his reply that because the State failed to respond to Polk’s alleged constitutional violation, it effectively confessed error under NRAP 31(d). We agree and reverse and remand for a new trial.
The State failed to respond to a critical issue:
We recognize that the State filed a lengthy answering brief addressing Polk’s other issues on appeal; however, the State failed to address Polk’s argument that his constitutional right to confrontation under Crawford and Melendez-Diaz was violated. This is a significant constitutional issue that compels a response. The issue was clearly raised in Polk’s opening brief and reply brief, the argument regarding it collectively consisting of approximately four pages. Melendez-Diaz was decided on June 25, 2009. The State filed its answering brief six weeks later, on September 10, 2009. In Polk’s reply brief, he explicitly referenced the State’s failure to directly address the constitutional issue. Even after being notified of its failure to respond to the Crawford and Melendez-Diaz issue, the State failed to supplement its response and elected to wait until oral argument to address the constitutional issue or harmless error. Such appellate practice causes prejudice to Polk’s ability to adequately prepare for or respond during oral argument.
Accordingly, we grant Polk’s oral motion to exclude the State’s oral argument on the Crawford and Melendez-Diaz issues and disregard the State’s argument. Because the constitutional right to confrontation under Crawford and Melendez-Diaz was repeatedly raised throughout the appeal, but the State failed to address or even assert that any potential violation was harmless error, we invoke our authority under NRAP 31(d) and consider the State’s silence to be a confession of error on this issue.