Wednesday, January 18, 2012

A Special Place For Lawyers?

The Idaho Supreme Court has held that a legal malpractice claim (and a related breach of contract claim) dies with the client.

Justice Horton dissents on the contract claim:

The majority expresses its concern that "[a] holding to the contrary would create a per se breach of contract action in every legal malpractice action." I would first note that this is a gross overstatement. The position I espouse only applies in instances involving express contractual undertakings. In this case, no one forced [the attorney] to enter into a contract prescribing the manner in which he would represent the client. Had he not elected to identify the manner in which he would perform his services, his duty to his client would be imposed by law, this action would sound in tort, and I would be joining with the majority.

I, too, have a concern for the result of this appeal. There is a very real concern that the decision of this Court will reinforce the perception, shared by many in our society, that courts will go out of their way in order to protect members of the bar. My position, which I believe to be well-grounded in existing law, simply recognizes that lawyers do not hold a special place in society that insulates them from the type of liability that any other party to a contract would face.

The claim involved allegations that the attorney failed to properly advise the client (who had been rendered a quadriplegic in an accident) of the effect of a settlement and release. (Mike Frisch)

January 18, 2012 in Clients, Law & Business, The Practice | Permalink | Comments (1) | TrackBack (0)

Friday, January 13, 2012

Absent Disclaimer, Law Firm Liable For Reporting Services

The Nebraska Supreme Court has held that a law firm is liable to a court reporting service for the payment of fees for services.

The litigation involved services provided in five cases in a total amount of a tad below $6,000. The law firm had contended that their clients were the proper defendants. The court held that the firm was liable but not the contracting attorney as an individual under the particular facts.

The law firm had invoked agency law in support of its position.

The court responded:

As a practical matter, in today's legal system, an attorney dealing with those who provide legal support services acts less as an agent who relies on the client for authority to manage the case, and more as a "general contractor," who is responsible for supervising the various aspects of litigation. In that context, it is appropriate that the attorney, with superior knowledge and familiarity with the case and client, should bear the burden of clarifying his or her intent regarding payment. It is, in fact, a relatively simple matter foe an attorney to disclaim liability with a clear statement to that effect. And an attorney's liability for (and payment of) expenses of litigation is consistent with our ethical rules.

(Mike Frisch)

January 13, 2012 in Law & Business, Law Firms, The Practice | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 6, 2011

The Moment Of Exoneration

The New Jersey Supreme Court has refined the concept of "exoneration" for purposes of a criminal defendant's claim of legal malpractice against defense counsel.

The malpractice plaintiff was convicted of drug offenses in 1999. In October 2007, the conviction was reversed for ineffective assistance of counsel. In July 2008, the indictment was dismissed. Notice of a tort claim was served in November 2008. He then filed suit against the public defender.

The court here held that the suit was filed within the statute of limitations because the moment of exoneration was dismissal of the indictment, not reversal of the conviction. However, the lower court must determine whether the notice of tort claim was filed beyone the required 90 days as a result of "extraordinary circumstances." (Mike Frisch)

December 6, 2011 in Clients, The Practice | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 19, 2011

Medicaid Planning And Unauthorized Practice

From the web page of the Ohio Supreme Court:

An advisory opinion recently issued by the Board on the Unauthorized Practice of Law of the Supreme Court of Ohio outlines the activities non-attorneys can and cannot engage in concerning Medicaid benefits.

According to Opinion UPL 11-01, non-attorneys may review documents, prepare and file Medicaid applications and attend state hearings on behalf of an individual “to the extent that those activities are authorized by federal law.”

The opinion draws the line for non-attorneys at performing “Medicaid planning” for current and prospective nursing-home patients and/or their families regarding qualification for Medicaid benefits “if it requires specialized legal training, skill, and experience.”

The opinion clarifies this point further.

“Medicaid planning, which consists of arranging assets and income to meet Medicaid eligibility requirements, is outside the scope of the non-attorney assistance permitted by federal law. State regulation of Medicaid planning is therefore not preempted by federal law. In many cases, Medicaid planning involves estate work and legal expertise. Accordingly, the board further concludes that the establishment of a Medicaid planning strategy for another by a non-attorney constitutes the unauthorized practice of law.”

A copy of the opinion is available at:

October 19, 2011 in Law & Society, The Practice | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 18, 2011

Multijurisdictional Unauthorized Practice

From the Ohio Supreme Court:

Out-of-state debt settlement lawyers are not authorized to provide legal services on a temporary basis to Ohio clients, according to a Supreme Court of Ohio Board of Commissioners on Grievances & Discipline advisory opinion.

It is the first time the board has addressed Professional Conduct Rule 5.5 (Unauthorized practice of law; multijurisdictional practice of law), which took effect in 2007.

Section (c) of the rule contains “safe harbors” that permit an out-of-state lawyer to provide legal services in Ohio temporarily.

Opinion 2011-2 applies the “reasonable relationship” factors found in the comments to Rule 5.5. The board concluded that allowing the multijurisdictional practice at issue would not serve the interests of clients and public when the “matters are not connected to the lawyers’ home state of admission, there is not a pre-existing relationship between the lawyers and the Ohio clients, and the lawyers do not have a recognized expertise in a particular body of federal, nationally-uniform, foreign, or international law that is applicable to the consumer debt matters.”

A copy of the opinion is available at:

(MIke Frisch)

October 18, 2011 in The Practice | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 24, 2011

Doctor! Doctor! Give Me The News

A new opinion from the District of Columbia Bar Legal Ethics Committee:

The principal question presented is whether a lawyer may ask his or her client’s treating physician not to have ex parte communications with opposing counsel in a medical malpractice case where legal restrictions on such communications based on privacy laws and/or physician-patient privilege have been removed.

Under D.C. Rule 3.4(f), the lawyer may inform his or her client’s treating physician that the treating physician has no obligation to speak with opposing counsel and that the treating physician may decline to speak to opposing counsel without the lawyer also present. To the extent that privacy laws or applicable privileges may restrict the scope of information that the treating physician may disclose, the lawyer may also demand that the physician comply with confidentiality obligations that have not been removed and may state his or her client’s position as to the scope of information that may be legally disclosed. The lawyer may not, however, request or instruct the physician not to have communications with opposing counsel or request or instruct that any communications take place only if the lawyer is present.

(Mike Frisch)

August 24, 2011 in Professional Responsibility, The Practice | Permalink | Comments (0) | TrackBack (0)

Saturday, July 9, 2011

Captive Audience

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 9, 2011 in Professional Responsibility, The Practice | Permalink | Comments (0) | TrackBack (0)

Thursday, May 26, 2011

Shield Law

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 26, 2011 in Professional Responsibility, The Practice | Permalink | Comments (0) | TrackBack (0)

Tuesday, 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: 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.

(Mike Frisch)

May 24, 2011 in Professional Responsibility, The Practice | Permalink | Comments (0) | TrackBack (0)

Thursday, 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)

May 19, 2011 in Professional Responsibility, The Practice | Permalink | Comments (1) | TrackBack (0)

Wednesday, April 13, 2011

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)

April 13, 2011 in Current Affairs, Teaching & Curriculum, The Practice | Permalink | Comments (1) | TrackBack (0)

Wednesday, April 6, 2011

Gallagher on Lawyer Roles and Ethics in IP Practice

Posted by Alan Childress

I received an interesting reprint yesterday in the mail, intersecting legal ethics and IP practice -- particularly discovery methods in the wake of Qualcomm -- using an empirical research approach and lawyer interviews. William Gallagher (law, Golden Gate U) published in John Marshall's IP law review (also on SSRN) an article entitled IP Legal Ethics in the Everyday Practice of Law: An Empirical Perspective on Patent Litigators. Its abstract:

This article presents preliminary findings from a qualitative empirical study of patent litigators. Part of a larger and ongoing project studying intellectual property lawyers in patent, trademark, and copyright enforcement and litigation actions, this article focuses on ethical decision-making by patent litigators in the pretrial discovery process. The article is based on data from in-depth, semi-structured interviews with fifty-five patent litigators and from a detailed case study of the infamous Qualcomm patent sanctions case. The article critically examines how patent litigators perceive of and respond to ethical issues that arise in the discovery process. It also analyzes the structural and cultural factors that influence ethical decision-making, as patent litigators navigate the multiple and often conflicting demands made throughout the discovery process by clients, firms, colleagues, and ethical rules. A significant finding from this study is that the threat of Qualcomm-like discovery sanctions is largely irrelevant to the everyday practice of patent litigators and has had little effect on their ethical decision-making. To-date there are few empirical studies of intellectual property lawyers or of legal ethics “in action.” This study begins to fill that gap.

April 6, 2011 in Abstracts Highlights - Academic Articles on the Legal Profession, The Practice | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 23, 2011


Posted by Jeff Lipshaw

This is the dignified name of the online lawyer bidding service created by a New York Law School student, and which merited an article in today's Wall Street Journal.  Back when I was in the business world and e-commerce was just beginning, most sophisticated "supply chain managers" put in place online bidding systems for some of their purchased materials.  I'm pretty sure it tended to work best with uniform, commoditized products, and it certainly did not favor the seller with a unique value proposition.  I'll take $200 worth of summary judgment, please.

Kidding (and the usual knee-jerk "we're different" reaction) aside, there are no doubt relatively commoditized legal products for which this system would work.

March 23, 2011 in Clients, Law Firms, The Practice | Permalink | Comments (0) | TrackBack (0)

Tuesday, 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 22, 2011 in Professional Responsibility, The Practice | Permalink | Comments (0) | TrackBack (0)

Monday, 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 21, 2011 in Professional Responsibility, The Practice | Permalink | Comments (0) | TrackBack (0)

Sunday, March 20, 2011

Malpractice Claims Go Forward

The New York Appellate Division for the First Judicial Department held that a trial court had properly denied a motion to dismiss a legal malpractice action:

This action alleging legal malpractice arose out of defendants' representation of plaintiff in a lawsuit brought by Victoria Gallegos alleging employment discrimination against nonparty Elite Model Management Corp.; plaintiff, a 10% shareholder; and Elite's majority shareholder, director of finance and co-president. A bifurcated trial resulted in a verdict of liability against the Elite defendants and an award to Gallegos of approximately $2.6 million in compensatory damages and $2.6 million in punitive damages against the corporate defendant. On appeal, this Court affirmed the liability verdict but vacated the damages award and remanded the matter for a new trial on the issue of damages.

The instant complaint states a cause of action for legal malpractice by alleging that defendants were negligent in failing to proffer evidence at trial that plaintiff was no longer president of Elite when Gallegos's employment commenced, had limited authority to respond to Gallegos's complaints, and did not approve of or participate in the termination of Gallegos's employment, and that but for this negligence plaintiff would have been exonerated of liability and would not have incurred damages. Plaintiff also alleges sufficiently that Curtin mishandled the Gallegos in-house complaint and failed to apprise her of Gallegos's early settlement demand in the amount of $50,000.

The complaint further alleges that defendants' joint representation of all the Elite defendants in the Gallegos action, in violation of Code of Professional Responsibility DR 5-105 (22 NYCRR 1200.24) (effective through March 31, 2009), divided their loyalties and prevented them from asserting the defense that plaintiff's co-defendants were the primary, if not the sole, actors in the decision to terminate Gallegos's employment; because of their joint representation, defendants could not request that the jury apportion liability among plaintiff and her co-defendants, resulting in the automatic imposition of joint and several liability on her (see CPLR 1601). While these allegations of a conflict of interest or a violation of attorney disciplinary rules alone could not support a cause of action, liability can follow where the divided loyalty results in malpractice.

Nor is the defense of the attorney judgment rule available to defendants on this record. Defendants have offered no reasonable strategic explanation for the failure to introduce arguably exculpatory evidence.

The breach of fiduciary duty cause of action is not duplicative of the malpractice cause of action since it is asserted against Curtin in his capacity as a corporate director, not as an attorney.

(Mike Frisch)

March 20, 2011 in The Practice | Permalink | Comments (0) | TrackBack (0)

Thursday, March 17, 2011

Ineffective Assistance

The Supreme Court of the State of Washington has held that a defense attorney's erroneous advice to a non-citizen regarding the deportation consequences of a guilty warranted reversal of the ensuing conviction. The court's majority opinion framed the issue:

The question presented is whether, in light of the United States Supreme Court's decision in Padilla v. Kentucky, ___ U.S. ___, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), a noncitizen criminal defendant can be denied the right to  effective assistance of counsel when  the defense attorney erroneously  assures the defendant  that the deportation consequence of a guilty plea can be mitigated.

The court answered in the affirmative. Concurring opinions are linked here and here. (Mike Frisch)

March 17, 2011 in The Practice | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 15, 2011

Prosecutor Goaded Defense To Seek Mistrial, Double Jeopardy Bars Retrial

The South Carolina Supreme Court reversed a murder conviction, concluding that the prosecutor had "goaded" defense counsel into seeking a mistrial and then securing the conviction at a second trial. The court concluded that the second trial was barred by double jeopardy.

The court recited the facts:

It is undisputed that Petitioner shot and killed his sister's boyfriend, Robert Lee Stewart (Victim).  In October 2003, Petitioner stood trial for murder.  At trial, Petitioner claimed self-defense.  The first trial ended when the judge granted Petitioner's motion for a mistrial.  When Petitioner was tried again in 2005, he moved to dismiss based on double jeopardy.  The circuit court judge at the second trial denied the motion and the jury convicted Petitioner of murder.

During the first trial, there was a great deal of animosity between the solicitor and defense counsel.  Prior to questioning the first police witness, the solicitor explained that there was a videotape made of the crime scene that included graphic images of Victim's body.  The solicitor redacted the original videotape to erase the graphic images and presented defense counsel a redacted copy on the day of trial.  However, the original videotape, including the graphic images of Victim's body, was shown to the jury.  Petitioner's counsel moved for a mistrial and dismissal with prejudice based on prosecutorial misconduct.  Counsel for defense argued the solicitor's case was not going well and the State was now privy to his defense tactics.  The solicitor claimed the tapes were switched unintentionally and inadvertently.  The court found the explanation offered by the State "shocking" as to why "such a huge, substantial, material piece of evidence would be handled in such carefree fashion . . . ."  The circuit court judge admonished the solicitor, but denied the motion for a mistrial issuing a curative instruction that the jury was to disregard the fact that they viewed the body of Victim.

During the solicitor's closing argument, she accused defense counsel of unethical conduct in coaching witnesses and implied to the jury that it was their community duty to convict Petitioner of murder.  After the solicitor concluded her closing argument, defense counsel again made a motion for a mistrial.  Defense counsel contended a mistrial should be granted based on prosecutorial misconduct in closing argument in that the prosecution accused defense counsel of coaching witnesses, and argued facts not in evidence.  Defense counsel ultimately argued that the cumulative effect of the prosecutorial misconduct warranted a mistrial.  The circuit court judge charged the jury and then heard arguments on the mistrial motion.  The solicitor contended her closing argument was justified by the evidence and was responsive to the defense's closing argument, thus, the mistrial motion should be denied.  The jury then sent a note to the judge that it was deadlocked.  The judge gave an Allen charge and the jury resumed deliberating.  After further deliberation, the jury again reported that it was deadlocked.  The judge received the note that the jury remained deadlocked as he was about to rule on the mistrial motion. 

The circuit court judge noted he had reviewed the motion for a mistrial, the solicitor's closing argument, and his notes from the testimony.  The judge found the statements made about Petitioner's counsel, the exhortation to the jury to convict in order to protect the community, and the introduction of the original videotape warranted a mistrial. 

The circuit court judge stated, "In my readings of those opinions it's almost as if . . . this court can infer that the defendant was almost goaded into the position of asking for a mistrial.  So based on the totality of the circumstances that [have] occurred in this trial . . . I will declare a mistrial . . . ."  The solicitor asked if the mistrial was based specifically on prosecutorial misconduct or the comments in her closing argument.  The judge responded, "The comments made in closing arguments, I would consider to be prosecutorial misconduct as well as . . . the video tape. . . . It's the cumulative nature of everything."  The State appealed the grant of a mistrial and the court of appeals dismissed the case as not immediately appealable.

Almost two years later, the State retried Petitioner.  Petitioner moved to dismiss based on double jeopardy arguing the solicitor at the first trial intentionally goaded him into moving for a mistrial.  The circuit court judge at the second trial denied the motion to dismiss.  In denying the motion to dismiss that judge made two seemingly inconsistent findings.  That judge stated:

I am resolving this motion completely independent of whether or not the prosecutor intentionally goated [sic] the defense into making a motion for a mistrial. . . .

          . . . . Even if there had been prosecutorial misconduct, it was the fact that the jury was deadlocked that caused the mistrial. 

. . . . So regardless of my analysis of what happened in the first trial, this motion to dismiss is denied because it was the jury's being deadlocked that lead to the manifest necessity that lead [sic] to the mistrial.

Shortly after making the above finding, the circuit court judge also found the following:

I do not find that the prosecutor specifically committed misconduct that was designed to elicit a motion for mistrial from Defendant so that the prosecutor would have another bite at the apple, another time to try the Defendant.  I believe that the prosecutor was vigorously trying to win the case and not trying to throw the case in the way of a mistrial.  So I am for those reasons, denying the motions [sic] to dismiss based on double jeopardy.

The second trial proceeded and the jury convicted Petitioner of murder.  Petitioner appealed to the court of appeals.  The court of appeals affirmed the denial of Petitioner's motion to dismiss based on double jeopardy.

The court found that the finding that the prosecutor had not goaded the defense was clearly erroneous.

Details about the decision from FoxCarolina may be found here. (Mike Frisch)

March 15, 2011 in The Practice | Permalink | Comments (0) | TrackBack (0)

Friday, February 18, 2011

Smell Of Alcohol On Attorney's Breath Inadmissible Absent Evidence of Impairment

The Iowa Supreme Court agreed with its Court of Appeals that a trial court committed error when it permitted the plaintiff in a legal malpractice case to introduce evidence that the attorney "emitted the smell of an alcoholic beverage from his breath during the representation, without introducing evidence of impairment."

The court remanded the case for a new trial as a result of errors in the jury instructions.

The opinion of the Court of Appeals is linked here.

The attorney had defended the clients in civil litigation that led to a money judgment against them. He entered a substance abuse treatment facility shortly after the trial. The trial court refused to admit opinion evidence on whether the attorney was intoxicated at the trial and excluded evidence of his post-trial treatment for alcoholism. The Court of Appeals concluded that "there was no evidence [the attorney] was 'under the influence' much less that he was incapable of competently performing his services as a result." (Mike Frisch)

February 18, 2011 in Bar Discipline & Process, The Practice | Permalink | Comments (0) | TrackBack (0)

Monday, February 14, 2011

Metaphors, Models, and Meaning in Contract Law

Posted by Jeff Lipshaw

For those of you out in the practice world who are curious about how academic legal theory and first year contract law pedagogy might be combined with real world intuitions and experience, I've posted a new article, Metaphors, Models, and Meaning in Contract Law , on SSRN. 

The gist of it is this:  the dominant metaphor for contract in practice and the academy is "contract as model."  One upshot of this metaphor is an article of faith (among lawyers at least) about the rational linkage between what is going on before the fact in the creation of the contract, and what gets litigated after the fact.  Sometimes the metaphor is appropriate, and sometimes it is not.  I've played with my intuition and admitted casual empiricism that the contract, even in a heavily negotiated deal, is as often the "thing" that Arthur Leff conceptualized in his iconic 1964 American University Law Review article as it is a model or map of the transaction .  I've proposed an alternative metaphor of "journey" in which the objectification of an agreement in the contract (a milestone, metaphorically speaking) is often as important as the content itself.  The piece contains illustrations I use in class (see Wood v. Lucy, Lady Duff-Gordon, above, but you have to read the article to get the context), as well as a discussion of how I use the fundamentals of metaphor theory to explain hard cases in which the parties assert, and judges must choose between, competing legal "algorithms".

The abstract:

Why does there seem to be such a wide gap between the subject matter of the usual first-year contracts course and what practitioners (particularly transactional lawyers) actually experience? My claim is that it is the result of a powerful theoretical system whose hallmark is a closed linguistic system—in the coinage of one noted scholar, “an epistemic trap.” The subject matter of contract law requires dealing with legal truth not just as a coherent body of doctrine, but also correspondent in some way to actual self-legislation of the parties. I propose escaping the trap with a turn to metaphor theory. The underlying metaphor common to prevailing conceptions of contract law, and which demands some form of correspondent truth from the contract (and contract law), is “contract as model of the transaction.” I suggest alternative metaphors of categories as containers, ideas (including “the meeting of the minds”) as objects, and the transaction life cycle as a journey. The goal is to focus on the “subjective to objective” process of the transactional life cycle, and to consider the perspectives of the participants in or observers of the transactional life cycle, and the models and metaphors that shape the conceptual frames from within which those participants and observers perceive and make use of the legal doctrine.

February 14, 2011 in Abstracts Highlights - Academic Articles on the Legal Profession, Law & Business, Law & Society, Lipshaw, Teaching & Curriculum, The Practice | Permalink | Comments (0) | TrackBack (0)