Legal Ethics Forum

Nifong held in criminal contempt

Nifong has been held in criminal contempt.

Interesting Iowa Opinion - Twist on 1.18

I don't think this is on-line, but in an August 8 opinoin (07-02), the Iowa State Bar Association Committee on Ethics and Practice Guidelines addressed an interesting prospective client problem:  the lawyer has a personal contact with a prospective client, gains confidences, but while in the process of deciding whether to take the case, he receives an unsolicited e-mail from the party that the prospective client needs to sue.  The e-mail discloses confidences, too.

The opinion concluded that whether the lawyer encouraged the communication was the critical question:  "Did the lawyer say or do anything that enticed or prompted the potential client to contact the lawyer and transmit confidential information."  Emphasizing that the question was difficult to answer, the Iowa opinion said that whether the lawyer had to keep the e-mail confidential turned on (1) all of its communicaiotn to see if it could "be interpreted to create a reasonable expectation that the lawyer or law firm was willing to discuss the possibility of representation" and (2) determine if the firm said or published anything "that would lead a reasonable person to believe that they could give or share factual or other confidential information with the lawyer without" first establishing an attorney-client relationship.  If both questions were answered yes, the lawyer or law firm would be disqualified.  It concluded by recommending "some form of notice" about confidentiality.

More Injustice in Ohio

Here's an update on Judge Plough, the Ohio jurist who jailed a public defender for five hours because he failed to prepare a case for trial within twenty-fours hours of being assigned to it. 

On Friday, Judge Plough held a hearing and (not surprisingly) concluded that he was correct to have punished the public defender.  He ordered the lawyer to pay a fine of $100, but stayed the order pending an appeal.

At the hearing the judge asserted that the public defender should have prepared for trial by interviewing all of the witnesses during his lunch break.  The judge thought that the twenty minute meeting that the lawyer had with his client that morning was sufficient, because it 's "probably all the time you're going to spend with a client."  Judge Plough told the lawyer:  "I wasn't asking you to do anything unlawful. I was asking you to try a case."

Wow.  So in Ohio public defenders are expected to spend twenty minutes talking with a client and spend a single lunch break speaking with all of the relevant witnesses.  Judge Plough perhaps wished for such inadequate preparation by defense counsel while he was a prosecutor for twelve years, but it's hard to see how such preparation would pass muster as sufficiently diligent under the ethics rules.  So you're right, Judge Plough, you weren't asking the lawyer to do something illegal; it was only unethical.

If anyone should be sanctioned here, it's Judge Plough.  Under Canon 3(b)(5), a judge must perform judicial duties without prejudice or bias.  Given that Judge Plough has taken punitive actions against public defenders in the past, it seems worth questioning whether the judge is capable of the kind of objectivity that the judicial code requires.  Indeed, it's hard to imagine Judge Plough imposing sanctions against a prosecutor under similar circumstances.

(In)Justice in Ohio

Here's the remarkable and disturbing story of a public defender in Ohio who was held in contempt and jailed for five hours because he was unprepared to try a case within one day of being assigned to handle it.

It's bad enough that public defenders have too many clients and not enough resources.  Now, in Ohio, they have to fear going to jail if they can't prepare a case for trial within twenty-four hours.  What's particularly remarkable about the judge's decision was that the lawyer was put in a position of either going to jail or providing unethical representation. 

I am consistently amazed (though no longer surprised) by the routine denial of a criminal defendant's right to a competent attorney and the courts' unwillingness to recognize the problem.  When a body of law develops that explains how long lawyers can sleep through a trial before they're considered to be ineffective and lawyers can be jailed for failing to try a case within a day of being assigned to it, there is something seriously wrong with the system.

I am helping out on a death penalty case in Alabama, and at the time of the client's original trial in the 1980s, appointed counsel's fees were limited to $1000.  $1000!  Not surprisingly, the lawyer put on no defense and decided to make his case at sentencing (for which he did nearly no investigation).  The Alabama state courts nevertheless found in a different case that $1000 was enough to ensure effective assistance of counsel.  See, e.g., Brown v. State, 807 So.2d 1, 13 (Ala. Crim. App. 1999).

Gideon sure looks great on paper, but the reality of receiving ethical (i.e., competent and diligent) representation is another matter entirely.

Update: Here's a nice story describing reactions to the judge's decision.

CAFC Decides In Re Seagate

Patent folks have been waiting for this, which analyzes waiver of attorney client privilege in patent litigation. The en banc decision is here.

In re Seagate over-rules Morrison-Knudsen

I'm still reading this eagerly awaited (that is, eagerly awaited by patent litigators) Federal Circuit opinion, In re Seagate, but it appears that Underwater Devices v. Morrison-Knudsen has been over-ruled.  I will update this as I work through the opinion.

UPDATE: In a nutshell, asserting the reliance of counsel defense to allegations of willful infringement does not waive a-c communications with trial counsel, or waive work product protection, except upon a showing of "chicanery."

UPDATE 2:  Looks like I beat patent ethics expert and co-blogger David Hricik to the punch by mere seconds -- which shows you how important this decision is in patent litigation.

Bogus Claim of Privilege in Qualcomm Case

So far I've managed to avoid posting on the Qualcomm discovery sanctions proceedings, because I didn't really have anything to contribute to the discussion, beyond venting my outrage that, once again, a big firm thinks the discovery rules are for chumps, and it can ignore them and hope for the best.  The problem is, of course, that the strategy of violate-and-hope can work if the trial judge is disinclined to follow up on allegations of discovery abuse.  A judge would have to sort through a huge factual record and review the relevant requests, responses, and all of the objections and responses-to-objections carefully to see if abuse had occurred, and many district court judges don't want to spend their time doing that.  (See pp. 33-38 of Judge Brewster's order for an example of what judges have to wade through.)  Anyone who has done pretrial litigation at a big firm knows how unpleasant discovery practice is.  Now add to that tedium the relative (compared to the lawyers for the parties) unfamiliarity the judge has with the record, and it's easy to appreciate why many credible allegations of discovery abuse are not investigated and punished.  Hence the "audit lottery" dynamic, where lawyers engage in pretty blatant abuse and hope they can get away with it. 

On that subject, one of the comments to the original WSJ blog post worries that "Judge Brewster’s choice of language reveals emotional involvement . . . that has no place in such proceedings."  Frankly, that's often what it takes -- a judge has to be pretty p---ed off before taking the time to slog through the briefs and record in a discovery abuse case, so most 50-page orders imposing sanctions for discovery abuse will reveal some richly justified "emotional involvement."  For all of that, Judge Brewster's tone strikes me as pretty reserved, given that the lawyers for one of the parties in a major lawsuit had persistently refused to turn over hundreds of thousands of pages of documents. 

Anyway, now that the jig is up, the firms representing Qualcomm have to defend their conduct before Magistrate Judge Barbara Major, who has issued a show cause order in the discovery sanctions proceedings.  The response by Qualcomm's new counsel has been to assert the attorney-client privilege in the information sought by the magistrate judge -- i.e. whether the lawyers complied in good faith with their obligations under the discovery rules.  Qualcomm is worried that disclosure of this information at the show cause hearing will waive any privilege with respect to subsequent litigation with Broadcom.  It's right that disclosure would work a waiver, but it conveniently ignores the fact that any privilege that exists has already been lost -- via the crime-fraud exception.  No privilege attaches, ab initio, to communications between lawyer and client where the client intends to use the lawyer's advice to commit a crime, fraud, or some other kind of bad faith conduct. 

That last bit is important.  Lawyers sometimes forget that the crime-fraud exception does not apply only to crimes or civil frauds.  Tons of cases talk about "crimes, frauds, or other misconduct," and the "other misconduct" has been applied to things like preferential transfers of assets prior to bankruptcy filings, concealment of the dangerous nature of a product (in the Dalkon Shield litigation), bad faith denial of insurance coverage, a tort case involving a bank depriving its customer of the use of his funds, or . . . "any type of misconduct fundamentally inconsistent with the basic premises of the adversary system," which would surely cover discovery abuse. 

Beyond the crime-fraud doctrine, there may be an implied waiver of the privilege when Qualcomm blamed its lawyers for the discovery abuse.  This is analogous to the self-defense exception to the duty of confidentiality, which permits lawyers to disclose confidences in self-defense, but of course it has roots in evidence, not agency law.  If Qualcomm had sued its lawyers for malpractice, there would clearly be a waiver under the putting-in-issue doctrine, but even if that doctrine doesn't apply, Qualcomm's position at the show cause hearing -- namely, that "Qualcomm attorneys made a slew of bad judgment calls during trial but never withheld evidence intentionally or in bad faith," may be enough for an implied waiver.

Paying for Formal Ethics Opinions

While I was tracking down a link to a recent ABA Ethics Opinion, I was reminded that you have to be a member of the ABA Center for Professional Responsibility in order to download a copy.  I've encountered the same problem when trying to find some state ethics opinions.

My question: why not make these materials freely available?  If formal opinions are supposed to give lawyers guidance about how to act ethically, isn't that goal undermined (at least to some degree) by forcing lawyers and members of the public to pay for those materials?  The Model Rules are freely available on the ABA's web site.  Why not also make the formal opinions, which often interpret those rules, freely available as well?

Undisclosed Legal Assistance to Pro Se Litigants

I'm a bit late posting a link to this ABA opinion, but I was reminded of it today when I got a hard copy in the mail.  (Snail mail still works sometimes!)

You can find previous blog commentary on this issue -- and unbundling more generally -- here.

The Blog's Purpose

I read this morning that I'm in the nation's blogging capital, Boston, which has more blog posts per 100,000 people than any other city in the country. 

The article also talks about some purposes of blogs, including the creation of communities, the distribution of information, etc.  So I started to think about this blog and what it achieves or, at least, what it should strive to achieve. 

Judging from the turnout at our informal get together in Chicago during the National Conference on Professional Responsibility, it's clear that the blog has helped to form a community of people who are interested in issues related to professional responsibility.  But the blog also passes along news stories, offers original commentary, and alerts people about new scholarship and upcoming conferences.

My question for readers is whether this is the right mix of offerings.  What kinds of posts do you find to be the most interesting?  Does the blog offer the ideal mix of these posts?  Blogs are still a relatively new format, so it's worth taking a step back every so often to ask some basic questions about purpose.  Pass along any thoughts that you have in the comments.