Legal Ethics Forum

Legal ethics items in the news (August 27, 2010)

• In Gere v. Louis, the Appellate Division of the Superior Court of New Jersey affirmed dismissal of legal malpractice claims against a matrimonial lawyer, declaring that the suit was filed too late and that the plaintiff's endorsement of the settlement in the divorce proceeding acted to bar the malpractice suit.  The strong public policy in favor of lasting settlements in divorce matters serves to reduce the parties' ability to subsequently assert malpractice claims.
• From Blog of the Legal Times: a lawyer is seeking insurance coverage in claims against him, but the insurer says that the lawyer failed to disclose the claims when he obtained extended coverage.  (Report those claims and circs!)
• The ABA filed a brief asking the DC Circuit to reject the FTC's position that the so-called "red flag" requirements apply to lawyers.  News article here.
• In matter we discussed previously, a New Jersey judge finalized a sanctions order of $1.96 million against two well known firms for bringing a frivolous claim.  I have no problem with the judge's order, but if the claim was that frivolous, why didn't the judge toss it before the conclusion of the trial?  The order itself is here.
• Edward Poll: succession planning is a must for solo firms.
• In Disciplinary Counsel v. Robinson, the Supreme Court of Ohio suspended a lawyer for one year because when he left his firm he took confidential documents with him and then lied about it.

Pro-life group loses challenge to Indiana judicial ethics rule

From ALM.  The group wants Indiana judges to be able to answer questionnaires regarding their views on abortion issues.  The Seventh Circuit finessed the constitutionality of the judicial ethics rule so the case may come back around in the future.

Recap on California's proposed new treatment of imputation

Over at The Ethical Quandary: the proposal is to leaving screening issues for the courts to decide case by case.

Using the closing argument to fight the in limines and to suggest what had been excluded

In  STATE v. CIFUENTES-VICENTE, the Court of Appeals of Washington upheld two $250 sanctions against criminal defense counsel for suggesting to the jury what they might have heard if the judge hadn't excluded certain lines of questioning and for speaking objections.  The opinion has extended transcripts of what counsel said, so the case might be useful for discussing the ethics of trial rhetoric.  ("[Counsel] said [to the jury] that she was unable to bring out motivations of the accusers 'because of the rules of this court.'") 

Legal ethics (August 26, 2010)

• From Medical News Today: "Kentucky attorney Amelia Adams could face six months in jail for contempt of court after refusing to reveal the name of a 17-year-old client who sought judicial permission to have an abortion without her parents' consent, the Lousiville Courier-Journal reports."
• From AllAfrica.com: UK-based firm Eversheds has created an empowerment trust to retain black professionals in South Africa, to combat the historical barriers to entry in the legal profession there.
• In New Zealand, Justice Minster Simon Power has "fired a shot at the legal profession," warning it to put victims first by adopting some more inquisitorial approaches to handling cases where there are child victims.  (h/t: Stuff)
• Jean Galbraith, a Sharswood Fellow, has been awarded the 2010 American Inns of Court Warren Burger Prize for her essay, "The Ethic of High Expectations."  Galbraith says, “I argue that, under certain circumstances, lawyers can best serve both their clients and the broader good by practicing what I call the ethic of high expectations. A lawyer acting from the ethic of high expectations gives advice that will be fully effective only if both the lawyer’s client and the other party voluntarily and independently relinquish legal rights in order to further the broader good. The lawyer succeeds by shifting the conversation from being about legal rights to being about right outcomes."

Download 2010BurgerPrizeWinningEssay

• Former Attorney General William Saxbe died.  He was nominated for the post following the Saturday Night Massacre and had pledge to permit no further interference with the special prosecutor looking into Watergate.  A brief bio is here.
• News of a new study: public defenders are as effective as private counsel.
• At Best Practices for Legal Education, Margaret Moore Jackson asks about the goals of law school orientation:  "When faculties examine their orientation programs, we may start by asking what the purposes of orientation are.  Welcoming students to the institution, or into the legal profession?  Infusing them with a sense of higher purpose?  Instilling professionalism?  Or even just laying the logistical groundwork for the semester?"

• Eric Goldman (Technology & Marketing Law) and Carolyn Elefant (My Shingle) suggest that lawyers shouldn't be using canned content, ghost-written blog posts and newsletters, because, among other things they will be treated as regulated advertising.  And, if you fax them, you might be liable under the Junk Fax Law.  (Do any lawyers really still blast-fax content like that?)

GSI Commerce Solutions: Why the 2nd Cir. Had Jurisdiction

Earlier I wondered what gave the circuit jurisdiction to review the district court's disqualification decision. Absent a final judgment, mandamus, or permission for an interlocutory appeal, these decisions - pro or con - are not reviewable, thereby depriving us (especially those of us with casebooks to edit) of appellate opinions on an important issue and making federal trial judges essentially unreviewable.

Thanks to an email answer from the winning lawyer, I now know what I should have realized from the text. The case was an effort to compel arbitration. The resisting party refused to arbitrate as long as Blank Rome represented the opponent, claiming a conflict. The trial judge had to decide whether to compel arbitration and overrule the objection to Blank Rome. The court said the firm was disqualified (the merits are a separate matter). That was a final judgement and appealable.

The irony is that a trial judge's decision framed in the context of a motion to arbitrate is appealable but the same decision if the case were before him on the merits would not be. 

In NY, by the way, for better or worse, disqualification claims in arbitration have to be decided collaterally in court, not by the arbitrator. This is unnecessarily expensive and not the rule everywhere. 

Legal ethics items (August 25, 2010)

• If law firms are now looking for unpaid summer associates -- why not charge them?
• From Law of Criminal Defense: Ohio lawyer suspended for padding bills on appointed cases.
• A new case from Kentucky, McNew v. Commonwealth, holds, not surprisingly, that if a defendant waives a judge's conflict (because he had been a prosecutor when the original action was brought), then the conflict is waived.  The case explains the "better" way for judges to disclose the key facts and permit the parties to waive the conflict, if they so choose.
• Eric Cooperstein explains that the Minnesota courts may make it slightly easier for graduates of unaccredited law schools to practice there.
• Legal humor: Tongue in Cheek looks at ten memorable, humorous fictional lawyers.  (Lionel Hutz, from The Simpsons, is on the list, and by coincidence I mentioned him in class last night at Golden Gate.)
• From the UK: a lawyer has trademarked "Mr. Loophole" because he has a speciality in beating charges for illegal motoring.
• Ms JD has a report on the glass ceiling for editor in chief jobs at law reviews.
• From Canada: Simon Chester on the evolution of conflicts law.

Michele Benedetto Neitz, "A Unique Bench, A Common Code: Evaluating Judicial Ethics in Juvenile Court"

Article here.  Abstract.

Recent cases involving ethical scandals on the juvenile court bench have caught the interest of legal scholars, judges, practitioners and the public. This article proposes a new theoretical framework for assessing these problems and articulates a series of vital ethical reforms related to them.

Despite their distinct role in an atypical court, juvenile court judges are not subject to unique ethical standards. Most jurisdictions have adopted the ABA Model Code of Judicial Conduct as the ethical code guiding juvenile court judges - the same standards as any other judge. However, this Model Code, intended to apply to any person in a decision-making capacity, was created for a more conventional type of judging than is expected from a juvenile court judge. Because these standards do not address the exceptional roles and challenges facing juvenile court judges, the potential for ethical violations and injustice is significant.

This article therefore recommends innovative textual revisions designed to provide much-needed ethical guidance to juvenile court judges in three critical areas: (1) ex parte communications; (2) competence; and (3) demeanor and decorum. The implementation of ethical guidelines tailored for this specialized court will remedy an existing flaw in the scheme of judicial ethics, while reinforcing judges’ abilities to determine the best outcomes for troubled youth.

Gabriel Chin & Margaret Love, "Status as Punishment: A Critical Guide to Padilla v. Kentucky"

As we've discussed here before, Padilla v. Kentucky held that a lawyer's failure to advise a criminal defendant of the reasonably ascertainable consequences of a guilty plea on the defendant's deportation status was a deprivation of the constitutional right to effective assistance of counsel.  But how far will that principle be applied?  Gabriel Chin and Margaret Love have some thoughts in this article.  Abstract:

There are only a handful of Supreme Court decisions in the past 50 years that can be said to have transformed the operation of the criminal justice system. Padilla v. Kentucky may be such a case. In Padilla, the Court ruled that criminal defense lawyers must advise their non-citizen clients considering a guilty plea that they are likely to be deported as a result. It is the first time the Court extended the Sixth Amendment right to counsel to a consequence of conviction that is not part of the court-imposed punishment. The decision represents an important first step toward imposing constitutional discipline on the plea bargaining process. As a practical matter, the decision will affect how all participants in a criminal case conduct themselves, not just defense counsel. 

Padilla offers important protections for non-citizens who are in the criminal justice system. But it has broader implications. In requiring consideration of indirect as well as direct consequences of conviction in connection with bargaining over the appropriate penalty, the decision implicates the concept of truth in sentencing itself. Yet it is less surprising that the Court should extend the right to counsel to collateral consequences at the plea stage, than that it took so long to do so. This essay places Padilla in the larger framework of modern criminal justice to understand its justifications and implications in policy terms. It argues that the logic of the Padilla decision is not confined to deportation but extends to other severe and certain collateral consequences of conviction. It reviews the reasons given for treating collateral consequences differently from other important consequences of conviction, and concludes that there is no principled basis for that distinction. Imposing collateral consequences has become an increasingly important function of the criminal justice system, so that they have to all intents and purposes become part and parcel of the criminal case. Accordingly, an expanded duty of counsel represents sound public policy, based on considerations of safety and efficiency, judicial integrity, and fairness to individuals. Finally, the essay describes efforts underway by the ABA and the Uniform Law Commission to make it possible for criminal defense attorneys to offer adequate advice about collateral consequences without unreasonable expense or delay.

Georgia case: expert affidavit required for malpractice case but not for fraud claim

Crosby v. Pittman.  Key graf:

Michael Shane Crosby appeals from the dismissal of the complaint he filed against his former attorney, David Pittman. Crosby asserts that the trial court erred in holding that the expert affidavit requirement of OCGA § 9-11-9.1 applied to his claims against Pittman for fraud and breach of fiduciary duty. Because OCGA § 9-11-9.1 applies only to claims of professional negligence, as opposed to ordinary negligence or intentional torts, we agree and reverse.