Legal Ethics Forum

Do you teach to the MPRE?

I know we've talked about the MPRE on this blog before, but I have a more specific question: how do you incorporate the MPRE, if at all, in your PR courses?  This semester was the first time I had a few students complain that we did not do enough to focus on preparing for the MPRE.  Generally I just teach the law of lawyering (with the valuable assistance of our friend Stephen Gillers) and assume that if I'm covering the basics, I'm fulfilling my responsibility.  The students can choose their own commercial practice tests and/or one-day prep courses.  But I'm wondering if I should be doing more.  Perhaps this semester is an anomaly, or perhaps those students just need some verbal reassurance that they're learning what they need to know for the test, or perhaps the MPRE is beginning to focus more on issues that are not being covered adequately in my course (which I structure as a pretty traditional PR course).  In any event, what do the rest of you do in terms of incorporating MPRE preparation in your course? 

odds and ends (January 26, 2010)

An in-house lawyer from Bear Stearns was permitted to serve as an expert against his former employer.    . . . .    The debate continues over whether NY state lawmakers who are also lawyers should be required to disclose the names of clients.    . . . .    The Association of Professional Responsibility Lawyers has decided to award its inaugural Charles W. Kettlewell Legal Ethics Advisor Award to the ABA's Jeanne Gray.  Congratulations to Jeanne Gray and to the family of Chuck Kettlewell.  (nod to Legal Profession Blog)    . . . .    Over at Faculty Lounge, Roger Dennis discusses the politics of the movement to require law schools to measure outputs.    . . . .      You may recall the suit against a lawyer who posted a video on Youtube as a means to finding potential class action clients.  When the defendant sued the lawyer, he filed an anti-SLAPP motion to strike.  The motion was denied.  Article here.

Benjamin Barton (Tennessee): “Against Civil Gideon (and for Pro Se Court Reform)”

Benjamin Barton (Tennessee) has written, “Against Civil Gideon (and for Pro Se Court Reform).”  Article here.  (nod to Legal Theory Blog)  Last week I did ethics CLE for direct services lawyers and they are pretty excited about the potential of Civil Gideon.  Abstract:

 

This Article argues that the pursuit of a civil Gideon (a civil guarantee of counsel to match Gideon v. Wainright’s guarantee of appointed criminal counsel) is an error logistically and jurisprudentially and advocates an alternate route for ameliorating the execrable state of pro se litigation for the poor in this country: pro se court reform. 

Gideon itself has largely proven a disappointment. Between overworked and underfunded lawyers and a loose standard for ineffective assistance of counsel the system has been degraded. As each player becomes anesthetized to cutting corners a system designed as a square becomes a circle 

There is little in indigent criminal defense that makes one think that a guarantee of civil counsel will work very well. If Courts have not required funding for meaningful representation in the serious cases covered in Gideon (including felony and death penalty prosecutions), it is extremely unlikely that they would do so in civil cases like eviction or deportation.

Moreover, focusing our attention on pro se court reform is a much, much more promising and likely palliative to the legal problems of the poor. Lastly, and most importantly, civil Gideon is a deeply conservative and backward looking solution to this problem, while pro se court reform has the potential to do more than just help the poor. It has the potential to radically reshape our justice system in ways that assist everyone.

 

New legal ethics blog -- Kafkaesq -- from David Cameron Carr

His new blog, Kafkaesq (I like the pun) has this post about California lawyers involved in the loan modification business.  David's a former state bar prosecutorial type who now does respondent-side work, and who's currently the head of the Association of Discipline Defense Counsel.

[PS: this post was by John Steele, not John Djzienkowski, regardless of what typepad thinks.]

Economy drives California lawyers to cheat and steal? (and other news items)

How's this for a depressing lead sentence, from the Modesto Bee: "The recession has driven an increasing number of California lawyers to cheat and steal, say State Bar officials, who expect to discipline or expel hundreds of them."  As the economy toughened, I had expected firms to make marginally more risky choices about client intake, but I hadn't assumed that theft was an option.    . . . .     Are "unbundled services" the future of the "middle class" of the legal profession?  Unbundled services are increasingly common in family courts across the country.  But even at the expensive end of the profession, we are seeing the "disaggregation" of legal work, by which the client breaks the job into pieces and farms out each piece to a cost effective provider.  I wrote a risk management piece on that ( Download BeazleyBrief_0109-3 ), and Mitt Regan and Palmer Heenan are writing a major article on it.   . . . .    Here's a blurb on a NY legal malpractice case that raises issues of "but for" causation, the lawyer's alleged failure to anticipate that key evidence would be excluded, and the risk management importance of giving clients good advice, in writing if possible, about the pro's and con's of settlement.

Jack Litman 1943-2010

As some may have read in today's New York Times, Jack Litman, one of NYC's best criminal defense lawyers, died yesterday, age 66, after a ten year battle with cancer. The headline for the Times obituary calls him the "lawyer for 'preppy killer' and others." That's understandable, but not the way he should be remembered. He was certainly much more than the "preppy killer's" lawyer, although he would have understood, I think, that  the public would most immediately remember him for his defense of Robert Chambers for killing Jennifer Levin in the middle of the night in Central Park behind the Metropolitan Museum of Art. 

Nor was Chambers the only case in which he defended a man against charges grounded in violence against women. Others are in the obit. That gave Jack an unfortunate profile as a defense lawyer who specialized in defending abusive men. He assured its staying power when he candidly, if ill-advisedly, told the press during an earlier homicide case against a man for killing a young woman that he found it necessary to "taint" the victim "a little bit." I suspect he regretted that remark, not because it is a strategy foreign to defense lawyers but because it followed him for the rest of his life.

Not in the obit are many other cases Jack had, which do not fit the violence against women pattern. Nor does the obit mention a case that does fit the pattern in its allegation and is worth mentioning here. (I don't fault the obit for the omission. It isn't meant to be a biography.)

Jack defended Oliver Jovanovic who was charged with various sex crimes against a young woman he met on the internet. This was in 1996, before the growth of social dating sites. The tabloids headlined the case (fed by prosecutorial statements mentioned below) with phrases describing Jovanovic as a "Cyber fiend" and similar unhelpful references.

The alleged victim was a Barnard undergraduate at the time. Jovanovic was a doctoral student.  The trial judge excluded highly probative defense evidence under the state's rape shield statute, misreading the statute in my view and in the view of the appellate court that reversed the conviction. (The vote was 4-0 on the most serious charges; 3-1 on the assault charge.) Jovanovic was released from prison after serving 20 months and declined various plea offers that would have avoided a new trial and a return to prison. One offer was to plead to a misdemeanor without jail time, obviously the D.A.'s effort to weaken an anticipated federal civil rights claim. (Why that is a legitimate use of state power is another question.) 

D.A. Morgenthau eventually dropped the charges and Jovanovic has sued the City based in part on the alleged press statements by  prosecutor Linda Fairstein (Jack's opponent in Chambers, too), which Jovanovic claims denied him a fair trail. It is the only section 1983 case I know in which a basis for liability is prosecutorial pre-trial statements, although probably there are others. A district judge refused to dismiss the case (Jovanovic v. City of New York, 2006 U.S. Dist. Lexis 59165)(S.D.N.Y.)). (The judge by the way is a former NYC corporation counsel.) The case has been in discovery and is reportedly scheduled for trial this spring. The opinion quotes the allegedly improper statements, which are quite flagrant and irresponsible. 

In Jovanovic, Jack defended an innocent man, though it took an appeal to exonerate him. The state high court declined review.

 Jack came to my legal ethics class a few years ago to talk about prosecutorial ethics. What I liked about his presentation, there and otherwise, is that he did not broadly dump on prosecutors, as some defense lawyers do. He respected their role (he had been one, after all). In the stories to the class, he made important distinctions between zealous advocacy, which a prosecutor may and should exhibit, and what he viewed (with dramatic examples) as abuse of power and unethical behavior. Jack showed in his talk to my class the ability to connect through stories that made him so good with juries. 

Rare among criminal defense lawyers, Jack was both a very good trial lawyer and a very good appellate lawyer (although he did not argue the Jovanovic appeal). He was intellectual, cerebral, academic (he did teach for a while), seemingly detached and unemotional,  but none of that interfered with his ability to talk to and persuade ordinary men and women on a jury. 

Santa Clara County DA boycotts judge who made adverse rulings (including a finding of prosecutorial misconduct)

The Santa Clara County DA has initiated an office-wide "boycott" of a judge who has made adverse rulings, including findings that a prosecutor had lied about evidence that had not been produced in discovery.  (California civil procedure permits lawyers to peremptorily challenge a judge, but you can only do it once per case.  It's called a "170.6" challenge, or, less formally, "dinging" a judge.)  Here's the news story; here's the DA's memo.  The DA notes that the public defender's office has engaged in boycotts in the past. 

California Un-Recusal

Judge's unrecusal didn't violate defendant's rights

Amanda Bronstad

January 21, 2010

The California Supreme Court, relying on last year's U.S. Supreme Court ruling in Caperton v. Massey, ruled on Jan. 21 that a judge did not violate a defendant's due process rights by overseeing her criminal trial after initially recusing himself from the case.

Following an "exhaustive review" of "a delicate realm of constitutional law," the justices said that "while a showing of actual bias is not required for judicial disqualification under the due process clause, neither is the mere appearance of bias sufficient." The state justices borrowed liberally from the U.S. Supreme Court's ruling in Caperton, concluding that the case before them did not present "extreme facts" that would justify judicial disqualification on due process grounds.

The case involved Marilyn Kaye Freeman, whose 14-year-old daughter (referred to in the opinion as "E.") was placed in a foster home after reporting to police that her mother had assaulted her. Freeman, an attorney, later "solicited one of her clients to kidnap E. from the foster parents, burglarized the foster parents' home, chased the foster parents at high speeds on the freeway, followed them in her car on city streets, glared at them 'in [an] evil manner' when she was spotted, spied on them at their residence and elsewhere, took pictures of them, and sprayed her perfume in their vehicle," the court said.

In 2002, while in custody on charges including solicitation to commit kidnapping, residential burglary and stalking, Freeman asked San Diego Superior Court Judge Robert O'Neill to review her bail and address recent rumors that she was stalking Judge Harry Elias, who was overseeing her dependency court hearings. O'Neill, noting that Elias was a friend he had known for 23 years, recused himself and referred the case to another judge.

O'Neill took up the case again after the rumors were found to be unsubstantiated.

In 2004, before going to trial, Freeman brought a handwritten challenge asking O'Neill to disqualify himself under California's recusal rules. She later withdrew that challenge, but filed another one, telling O'Neill: "I don't believe that once you recused yourself for cause that there was any possible way for that to be overridden." O'Neill denied her request.

A jury found Freeman guilty on all charges and she was sentenced to six years in prison. In 2007, an intermediate California appellate court reversed the conviction, reasoning that O'Neill's failure to disqualify himself after the case was reassigned to him violated Freeman's due process rights.

While the case was pending before the California Supreme Court, the U.S. Supreme Court issued its ruling in Caperton.

The California high court said that O'Neill's acceptance of Freeman's case after initially recusing himself did not warrant "exceptional facts" needed for a due process violation under Caperton.

Freeman's lawyer, Carl Hancock, of the Law Offices of Carl M. Hancock in San Diego, declined comment on the ruling. A call to the California attorney general's office, which represented the state in the case, was not returned.

Amanda Bronstad can be contacted at [email protected].

John Edwards and the character/fitness inquiry

The possibility of professional discipline for John Edwards has sparked some interesting debates elsewhere, and there's one particular question I'd like to raise here.  Some observers, including some participants on this blog, have cast doubt on the relevance of dishonesty in one's personal life to the inclination toward dishonesty in one's representation of clients.  That is, as John Steele suggested in his earlier post, the fact that Edwards lied about his adultery and resulting child does not mean that he will lie in his representation of clients.  I'm willing to go along with that particular claim, but I'm not sure how far to take it.

I agree with John Steele that discipline might be appropriate if Edwards would have lied to defy campaign finance laws.  But that conclusion must derive from an implicit belief that respect for the law is categorically different than dishonesty when it comes to his fitness to practice law.  Consider a violation of law that involves an even more "personal" issue: let's say that Edwards had defied child support orders from the court.  Is there any research establishing that a willingness to violate the law in one situation indicates a willingness to violate the law in other situations?  (I.e., is a willingness to violate the law "cross-situationally stable?")  If we don't have that evidence, on what basis would Edwards' willingness to violate the law in his personal life justify professional discipline?  Or is respect for the law such a bedrock value of the profession that we don't care if there is a link; we're instead sending the message that lawyers respect the law, period.  In this regard, does the character and fitness inquiry have a pedagogical dimension?  Should it?

odds and ends (January 22, 2010)

As part of their criminal sentencing, lawyers were ordered to spread the word about the dangers of committing fraud on the IRS.    . . . .    The former Attorney General of Kansas, Phil Kline is being investigated by the bar for his possibly overzealous investigation of a late-term abortion clinic.    . . . .    The Ethical Quandary follows the issue of sending privileged emails from work computers.    . . . .    Brian Benko and Corrine Morrissey ask "Is It Ethical to Be a Super Lawyer?"    . . . .    David Sugarman looks back at the Lawyers and the Courts, the classic book about the modern English legal system, by Robert Stevens and Brian Abel-Smith.    . . . .    Lawyers in the Philippines may take to the streets to protest the prospect of what they see as a procedurally improper appointment to the Supreme Court.    . . . .     Advice to junior lawyers about taking ownership of their work product.    . . . .    Allen & Overy unveils a plan for flexible working hours, to encourage retention of women lawyers at the firm.    . . . .    Ms JD posts a weekly round-up.    . . . .    James Sokolove won the right to open an office in Rhode Island.    The Securities Docket site explains that the Wall Street Reform and Consumer Protection Act would permit the SEC, but not private parties, to bring more "aiding and abetting" claims.