[UPDATE: As you will see in the comments, my original post has been commented on by the lawyer for Mr. Munanka. It's entirely plausible to me that the original post cites to authorities that do not accurately describe the conduct of the lawyers that was criticized in the appellate opinions.]
A legal ethics prof passed this along.
Below is a letter from the lawyer for Jaasi Munanka, one of the young lawyers discussed in the Maples v. Thomas case, to the legal ethics professors and practitioners who signed an amicus brief that was quite critical of Mr. Munanka. (Maples v. Thomas was the case where a death row inmate's lawyers missed an important deadline and were considered to have abandoned the client.)
The lawyer notes that the state bar declined to proceed against Mr. Munanka, stating that there was no basis for disciplinary charges. The letter asserts that the real story of what happened is quite different than the facts presented in the appellate record. (That's plausible to me, but how can one verify it? If the appellate record materially distorted what the lawyers did, and who was responsible for the missed deadline, it would be difficult for the lawyers to live with that.)
The letter suggests that there may be a basis to unseal the records of the disciplinary investigation. I suppose that those records would make for a good law review article, because it would show how big firms handle important pro bono matters and could possibly show that the appellate record wasn't accurate.
This is one of the oddest letters I have ever read. The references to Dr. Martin Luther King are unpersuasive at best. The fact that the Disciplinary Committee concluded that there was no basis for taking action proves only that the Committee opted not to act based on the information presented to it and other considerations known only to its members; it certainly does not establish that the Supreme Court record was grossly inaccurate or materially incomplete. Why should the signatories to the amicus brief consider whether there is good cause to unseal the disciplinary record, as compared to Mr. Munanka moving to do so? I could go on, but won't.
Posted by: Doug Richmond | January 22, 2013 at 11:40 AM
I agree that this is a bizarre letter not only for the reasons mentioned by Doug Richmond but because 1) the amicus brief focused most of its criticism on Sullivan & Cromwell and 2) the claim that Munanka "abandoned" Mr. Maples was made by S&C throughout the proceedings and yet there is not one word about S&C in this letter. If Munanka was made a scapegoat, then his attorney should make that case.
Query, however, whether there might be some sort of non-disclosure agreement between S&C and Munanka, which is why Munanka's lawyer may be hoping that someone else "corrects the record."
Posted by: Milan Markovic | January 22, 2013 at 12:46 PM
Milan, that's exactly the issue I was pondering -- why Mr. Munanka won't or can't or doesn't want to open the records and correct the story himself.
Posted by: John Steele | January 22, 2013 at 04:50 PM
I tell my students that if you win (here the Bar dropped the matter) then shut up and get out of town before they change their minds. Seems silly to pick a fight at this point. But then again, I am not a real lawyer - just one of those Professor guys.
Posted by: Rick Underwood | January 22, 2013 at 05:45 PM
I recused from this brief because of my prior affiliation with Sullivan & Cromwell from 1988 to 1991. The fact that the bar disciplinary committee takes no action does not mean there was no wrong. The fact that the bar disciplinary committee takes no action when events as bad as these occur in a death penalty case, is all the more reason the Court should grant to the condemned man the relief it did. Abolishing the death penalty, and an accompanying process that in too many instances the bar is incapable of handling competently and fairly, is another answer.
Posted by: Richard Painter | January 22, 2013 at 11:44 PM
What standing did the S&C associates have to challenge characterization of their conduct throughout the collateral proceedings? None that I can see. Sure they can go public with their side of the story now, but that would not undo the SC's characterization of their behavior as urged by Maples' lawyer at the Court. But there's a deeper question: even if they could offer (or could have offered) information contradicting the finding of abandonment -- abandonment was argued at the Supreme Court for the first time (I believe) by new counsel for Maples - would not the state seek now to use that information to limit federal jurisdiction over Maples' ability to raise his claims of constitutional rights violation? That's a pretty unhappy set of alternatives for a former lawyer for a capital defendant. What would any of us do?
Posted by: Stephen Gillers | January 24, 2013 at 07:42 PM
Steve, that's a good analysis. I have a lot of (potential) sympathy for the associates and would love to hear what they have to say. Do you know who, if anyone, could ask for the disciplinary record to be opened?
Posted by: John Steele | January 24, 2013 at 10:32 PM
I don't know when the decision is not to proceed.
Posted by: Stephen Gillers | January 25, 2013 at 05:52 PM
As Mr. Munanka's lawyer, I find it "interesting" to say the least that there is not one mention made of the obligation of authors of a brief to ascertain the complete set of facts before making such professionally-damaging accusations. I hope in the future that Amici take this responsibility and obligation more seriously. Also, I am surprised that various of you do not appreciate the grossly unfortunate situation my client is in vis-a-vis Rule 1.6. Outrageous and false accusations have been made against him that affect him professionally. I requested that current counsel for Mr. Maples correct the false representations he made in the Supreme Court about my client in light of the entire factual history (as opposed to the "selective" record presented). I believe this can be done without affecting Mr. Maples' current position. You can assume the answer.
Posted by: Kevin D. Evans | February 07, 2013 at 05:11 PM
Mr Evans, does your jurisdiction include 1.6, cmt. [10]?
Posted by: John Steele | February 07, 2013 at 11:45 PM
Authority under Rule 1.6 in the applicable jurisdictions is limiting. One must consider comment 10 in conjunction with that authority.
Posted by: Kevin D. Evans | February 08, 2013 at 11:44 AM
Mr. Steele, could I impose upon you to correct the spelling of Mr. Munanka's name in your post. Much appreciated.
Posted by: Kevin D. Evans | February 08, 2013 at 05:53 PM
Mr. Evans, yes of course.
Posted by: John Steele | February 08, 2013 at 06:01 PM