Illinois Bar Journal has the story: "AVVO.com's new online service allowing lawyers to quote fees for
prospective traffic-ticket clients sends the public the wrong message,
ISBA-member critics complain."
During a couple of downturns in biglaw, lateral candidates got more savvy about poring over a firm's financials before making a swtich. (We also saw candidates allege that in the case of moving to some firms, the financials the lateral saw were not necessarily accurate.) Over at Faculty Lounge, there is a list of lateral moves by law professors. What level of due diligence do those laterals do on the financial status of the school, especially given the huge downturn in applications? I imagine that there could be a fear that asking hard quesations about the institution's finances could be seen as rude.
Yesterday, in People v. Dunbar (decision here), New York's Appellate Division, Second Department, held that the Queens County DA's script for questioning defendants immediately before arraignment -- and before appointment of counsel -- violated the defendant's state and federal constitutional rights. The court ordered a new trial in which the defendant's videotaped confession would be suppressed. The DA's script, which was read by a police detective in the presence of an Assistant District Attorney, stated as follows:
In a few minutes I'm going to read you your rights. After that, you'll be given an opportunity to explain what happened at that date, time and place.
If you have an alibi, give us as much information as you can, including the names of any people you were with.
If your version of the events of that day is different from what we have heard, this is your opportunity to tell us your story.
If there is something you would like us to investigate concerning this incident, you must tell us now so we can look into it.
Even if you have already spoken to someone else, you do not have to talk to me.
This will be the only opportunity you will have to talk to me prior to your arraignment on these charges.
This entire interview is being recorded with both video and sound. [Emphasis added.]
The Second Department expressly did not decide whether the script constituted conduct "consisting of violations of attorney-ethics rules," but the decision was a resounding vindication for Professor Ellen Yaroshefsky of Cardozo, who had given an expert opinion in a related case stating as follows:
The context of the interview misleads and deliberately
induces the defendant to believe that there is an urgency to speak now when
there is no advantage to him doing so prior to appointment of counsel. The
conduct implies that there is a present advantage that will be unavailable at a
later date. The detective and prosecutor know, but the defendant does not, that
he will immediately secure counsel to provide independent advice as to whether
and when he should provide information to the detective or the prosecutors. The
prosecution knows that indigent defendants will not obtain counsel prior to the
time of entry into the court's holding cell and that the interview process
delays and circumvents the defendant's contact with counsel. …
That made the script a violation of New York Rule 8.4(c), which prohibits conduct involving "deceit or misrepresentation." In my view, for two intertwined reasons, the conduct at issue also violated New York Rule 8.4(d), which (like the ABA Model Rule) prohibits conduct “prejudicial to the administration of justice.” First, when the court analyzed “the ‘critical’ prejudice component of the constitutional harmless error test,” the Second Department expressly found that the DA's misconduct was not harmless error. To me, that means that the error was harmful, which has the same meaning to me as “prejudicial.” Second, this was not an isolated instance of the conduct in question or the result of an over-zealous ADA “going rogue,” but rather was part of a systematic practice that the D.A.’s office adopted, scripted, and implemented in thousands of cases. The conduct was not just prejudicial to the rights of the particular defendant in the case at bar – it was prejudicial to the administration of justice with respect to every criminal case that came through the Queens D.A.’s office using these methods of interrogation.
I am not asserting that every violation of a suspect’s constitutional rights equals conduct prejudicial to the administration of justice within the reach of Rule 8.4(d). But when the conduct in question is systematic, widespread, and prejudicial to many suspects, I believe it does amount to conduct prejudicial to the administration of justice. This does not mean that the Queens D.A. or the ADAs who developed the policy or engaged in this conduct should now be charged with a violation of Rule 8.4(d). The question was hard fought in multiple cases and produced mixed results from various courts. The Dunbar decision may yet be reviewed by the New York Court of Appeals (too soon to know). But unless and until the Dunbar opinion is reversed by the Court of Appeals, prosecutors who read from the same unconstitional script in the future are, IMHO, engaged in conduct prejudicial to the administration of justice.
Providence Journal. (h/t: Law of Criminal Defense) Excerpt from newspaper article: "Questioning a jury's ability to understand the intricacies of the law
and a criminal defense lawyer's role within that process, defense lawyer
Gerard Donley is opting to be tried before a single judge on charges he
bribed a witness not to testify against the man who allegedly stabbed
We've previously linked to Maya Steinitz's work on litigation funding here. Now she has set up a blog to help crowd source a model contract for litigation funding agreements. (h/t: Faculty Lounge) Here's part of her introductory post:
Welcome. Over the next several weeks and months we will be creating a
model litigation finance contract for debate, discussion and use by
attorneys, members of the industry, academics, and regulators. We hope
you will participate.
We will roll out the contract, provision by provision, as blog posts.
We will also post contributions by guest authors. As each provision is
posted, it will be added to “The Contract” at the link on the left, and
the related defined terms will be added to the “Defined Terms” link.
Right now those links include some basic provisions and the titles and
subtitles of most of the provisions to come, so that the contract’s
general shape can be understood now. The first set of substantive
provisions we will be posting relate to our proposed litigation funding
mechanism: staged financing based on a venture capital analogy. Our
first guest post is a reaction to the syndication component of that
concept by antitrust expert Prof. Herbert Hovenkamp.
UPDATE: Here's the SSRN page for Prof Steinitz. Of additional interest is this provocative article suggesting that litigation funders be treated as real parties in interest. Abstract:
funding (“LF”) — for-profit, non-recourse funding of a litigation by a
non-party — is a new and rapidly developing industry. It has been
described as one of the “biggest and most influential trends in civil
justice” today by RAND, the New York Times and others. Despite the
importance and growth of the industry there is a complete absence of
information about or discussion of litigation finance contracting, even
though all the promises and pitfalls of litigation funding stem from the
relationships those contracts establish and organize. Further, the
literature and case-law pertaining to LF have evolved, in their
entirety, from an analogy between LF and contingency fees, viewing both
as ethically compromising exceptions to the champtery doctrine. On that
view, such exceptions create risks of an undesirable loss of client
control over the case, of compromising lawyers’ independent judgment and
of potential conflicts of interest between funders, lawyers and
This article breaks away from the contingency analogy
and instead posits an analogy to venture capital (“VC”). It shows the
striking resemblance of the economics of LF to the well-understood
economics of VC. Both are characterized by extreme (1) uncertainty, (2)
information asymmetry, and (3) agency costs. After detailing the
similarities and differences of these two types of financing, the
article discusses which contractual arrangements developed in the
venture capitalism directly apply to litigation finance; which ones need
to be adapted; and how such adaptation can be achieved. Since much of
the theory, doctrine and practice of VC contracting can be applied or
adapted to litigation finance, practitioners and scholars can be spared
decades of trial-and-error in developing standardized contractual
In addition, the analogy turns most of the conventional
wisdom in the field on its head. This article argues that funders
should be viewed as real parties in interest; funders should obtain
control over a funded litigation and; attorneys should take funders’
input into account. In return, funders should pay plaintiffs a premium
for the control they receive, subject themselves to a compensation
scheme that aligns their interests with those of the plaintiffs and
enhance the value of claims by providing non-cash contributions. Courts
and regulators should devise rules that enhance the transparency of the
industry, in particular the performance outcomes of various LF firms and
their ethical propensities. Such a legal regime will foster the
emergence of a reputation market that will police the industry and
support contractual arrangements.
I've had domestic violence lawyers in my PR class and the stories they've told are harrowing. This film clip at The Smoking Gun illustrates the point. A man attacks his ex-girlfriend in a court room when they are momentarily left alone.
Some of the DV lawyers have told my students that at the end of the legal matter they want to file a substitution of counsel to ensure that they don't have unending duties of indeterminate scope, but they fear that once the batterer receives notice that the victim's counsel has withdrawn, the batterer may feel less inhibited about resuming violence.