Legal Ethics Forum

Zacharias Memorial Prize for Scholarship

Submissions and nominations of articles are now being accepted for the third annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. To honor Fred's memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2012. The prize will be awarded at the 2013 AALS Annual Meeting in New Orleans. Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: [email protected] The deadline for submissions and nominations is September 1, 2012.

"Bill Ruckelshaus: Watergate and me"

Crosscut has an interesting account of a famous incident where lawyers needed to weigh their personal and professional duties. (h/t: Prawfsblawg)

"Lawsuit Against Avvo for Lawyer's Profile Dismissed as SLAPP--Davis v. Avvo"

Eric Goldman has the details.

People v. Vincent (unpublished)

Unpublished. (Thanks for Eric Goldman) Introductory grafs:

 Roland Vincent, a law school graduate with a long-inactive license to practice in Nevada (and no admission to the California Bar), agreed to assist acquaintances in California with their California legal problems, and took money from them for that purpose.   A jury found him guilty of the unauthorized practice of law (Bus. & Prof.Code, s 6126, subd. (a)), of receiving money on false pretenses (theft) (Pen.Code, s 487, subd. (a)) from one of the acquaintances, and of petty theft with a prior (Pen.Code, s 666) from the other acquaintance.

Vincent challenges his convictions for theft and petty theft with a prior, contending primarily that by virtue of his inactive Nevada license his status as an attorney was not a false pretense.   He argues also that under Penal Code
section 654 he cannot be sentenced to both the unauthorized practice of law and receiving money under false pretenses because both those offenses were motivated by the same intent and objectives.   He urges that the prosecution should not have been permitted to impeach his credibility with his prior misdemeanor convictions,
and that his wife should not have been questioned about her use of various names. Finally, he contends that his theft conviction and sentence of three years in prison must be reduced to a misdemeanor based on a change in Penal Code section 487, subdivision (a) before his conviction became final.   We disagree with all his contentions except the need to reduce the count 1 conviction from a felony to a misdemeanor.   We will otherwise affirm the convictions.

Gary Bishop, "A Framework for Analyzing Attorney Liability Under Section 10(b) and Rule 10b-5"

I found Gary Bishop's  article very useful for understanding lawyer liability under that federal law for fraud and for participation in fraudulent schemes. It's good background reading for teaching the ethics of negotiation in transactional settings, the lawyer as gatekeeper (or not), and the impact of federal law on a lawyer's behavior. Abstract:

This article analyzes recent developments in the law of secondary party liability under the general antifraud provision of the Securities Exchange Act of 1934, section 10(b), and its corresponding Securities and Exchange Commission rule, Rule 10b-5. The article focuses on a specific type of secondary party, securities lawyers, who make their living representing securities issuers and face a myriad of challenges in doing so. Among those challenges are defrauded investors seeking recovery of their losses from both the issuer of the failed investment securities and from the lawyers who represent the issuer. These securities fraud actions against lawyers raise serious questions about the proper scope of liability under the federal securities laws. The recent developments discussed in the article indicate that the standard for secondary party liability is increasingly becoming one that attorneys acting in the traditional role of adviser and draftsperson to securities issuers will not satisfy.

60 Minutes Story on Wrongful Convictions and Prosecutor Ethics

This past Sunday, 60 Minutes ran an all-too-common story about a man who was exonerated by DNA evidence after 25 years in jail.  (Video here.)

The prosecutor (now a judge) is the subject of a criminal investigation (see here and here) into whether he broke the law by concealing excuplatory evidence in the case.  The video clip offers a nice overview of the case and is worth showing in professional responsibility courses that cover prosecutorial ethics.

NYSBA Opinion 911: An Imaginary Conversation

New York State Bar Association Opinion 911 recently concluded:

 "A New York lawyer may not practice law principally in New York as an employee of an out-of-state entity that has non-lawyer owners or managers."

Although  a strict reading of New York Rule 5.4 (the same as elsewhere) may compel this conclusion, the result shows the lack of coherence in how we regulate lawyers today. My imaginary conversation between a law teacher and student is at the following URL which also links to the opinion and a forthcoming article on the subject:

http://www.newyorklawjournal.com/PubArticleNY.jsp?id=1202546914719

 

Error in SSRN Draft

There are errors regarding U.S. v. Bourke  in the SSRN draft of my article on Unethical and Unconstiutional Policies and Practices by Prosecutors' Offices.  I am correcting them for the post and for the published article.

Zealous Advocacy or Contempt? Criminal Defense Lawyer Sentenced to 90 Days in Jail for Angry Outburst at Judge

A Massachusetts appellate court has affirmed a 90 day jail sentence for a criminal defense lawyer, Barry Wilson, who engaged in a several minute long tirade against a judge during the empanelment of a jury.  (Opinion here.)  The lawyer's outburst was the result of the judge's willingness to seat a juror who had a long history in law enforcement. 

Here is the exchange that led to the finding of contempt and the 90 day sentence:

The Court: "Mr. Wilson --"

Wilson: "No, we're not going to say wait. We're not going to say wait. You excused a juror because she's got two kids 20 and 21, and this guy's got 15 years --"

The Court: "Mr. Wilson --"

Wilson: "-- of law enforcement."

The Court: "Mr. Wilson --"

Wilson: "And you're going to sit him."

The Court: "Listen, if you --"

Wilson: "Lock me up now. Just lock me up and declare it a mistrial. I'm not sitting with that guy on this jury. No way."

The Court: "Mr. Wilson --"

Wilson: "No way. No way am I going to try a case with that man. That's ridiculous. Fifteen years a federal agent and he's going to be unbiased. Are you kidding me? I can't do it. I won't do it. Take my ticket. I don't really care. This is just plain ridiculous. Ridiculous. I'm going to sit there with a federal agent who says that he's not going to believe his fellow officers, are you ridiculous. You gotta be. You gotta be. I can't try the case and I won't. I will not."

The Court: "Well, I'm afraid you're going to have to try the case."

Wilson: "Oh, I don't think so. I can't. I'm not looking -- I can't. I can't. How can I look at my client and say he should think this is legitimate after you make a ruling like that and you excuse a woman who had two children, and that's enough excuse? You think I would ever let a woman -- whatever that man is -- sit on it."

Wilson next screamed at the judge:

Wilson: "And the other thing is I think maybe if he's [juror 35] standing outside there you better go ask him if he heard me screaming, because I think you gotta excuse him now 'cause I think he knows I don't like him."

The Court: "Mr. Wilson, is there some reason that I should not hold you in contempt?"

Wilson: "Judge, you can do what you wish to do, but I have news for you. How could you expect me to do anything different? A young man is on trial for his life, and a juror goes bye-bye. I can -- I said that I had a decision. I made decisions.

"A juror is not there, and then I -- exactly everything I predict is going to happen and then it happens, and you want me to say that's okay and tell my client he should feel okay and tell my client that it's [on] the up-and-up and that it's all fine.

"You can hold me in contempt. You could send me [to] Nashua Street right now. I'll go with my client and maybe we can get a cell together and maybe you could declare a mistrial and then we can start over again because I am not -- I am not going to try a case in which as far as I'm concerned the Commonwealth doesn't have a shot to be except by -- except by police officers going and leaning on people and getting the changed stories.

"And now I'm going to put in the box a man who spent fifteen years in Homeland Security, and I'm going to think that my client is going to get a fair trial? I don't think if they came up and they asked to put me in the box that any prosecutor in their right mind would think that I should sit there.

"This is just, just wrong. You can do whatever you wish to me, but this is just wrong."

The Court: "All right. Thank you, Mr. Wilson. I've heard enough.

"I do hold Mr. Wilson in contempt. I find that his behavior is loud, insulting, disrespectful behavior. The loud voice being at least partially intended so the jurors may hear him, including the juror who is presumably waiting outside the door, is disruptive to the Court proceedings. And I am going to hold him in contempt, and I am going to sentence him.

"However, I'm going to defer the sentencing until a later date. I respect the defendant's right to have counsel of his choosing try the case, so I'm not going to interfere with that. Mr. Wilson will be expected to continue to defend Mr. Jackson, and at the conclusion of the case I'm going to sentence him appropriately.

"He is held in contempt, and those are my findings."

Wilson: "You can't do that. You can't do that because what I'm going to put on record right now is you going to send me to jail, but if I act like a good boy, maybe I'll only go to jail for a few days. If I act like a bad boy, then I'll go to jail for a few weeks or a few months, or whatever time I don't know.

"But in any event, what we have is now I have to consider whether or not I can do the right thing by my client or can I do the right thing by me. Will I go to jail or won't I go to jail or how long I go to jail.

"So what I suggest is I can't represent my client. You've held me in contempt now."

The Court: "Take [juror 35] upstairs. We'll break for five minutes. We'll resume. I'll bring the jurors down. I'll excuse them for the day. If there's any other legal matters that have to be taken up this afternoon, I'll do that then. We'll recess for five minutes."

Wilson: "I'm not done. I'm not done. Let the record reflect that I cannot represent my client anymore because I've been held in contempt and the condition of my contempt will not be decided until the Court -- the trial is over. And I cannot make a determination based -- I cannot conduct myself in a manner that I'm supposed to or not supposed to, but I cannot be a zealous advocate and within the propriety of what my responsibilities are under the code of professional ethics because I don't know.

"Right now I have to worry about me instead of worrying about my client, and if I got to worry about me instead of my client, then I can't worry about my client, then I can't do my job because under the code my first responsibility is to my client."

The Court: "All right. Five minute recess."

Two questions.  First, does the conduct warrant a contempt finding?  Second, assuming that a finding of contempt was reasonable, is three months in jail an appropriate sentence? 

Regarding the first question, I tend to agree with the court that a contempt finding was reasonable.  As the court noted, the lawyer's outburst appears to have been intended to force a mistrial or the dismissal of the juror (because the juror, who had been moved to the hallway, could hear the yelling lawyer). 

But on the second question, I think the punishment is quite disproportionate to the offense.  What do you all think? 

(Thanks to my colleague, Gabe Teninbaum, for the pointer.)

Tamanaha on law school debt

While we wait for his book to hit the shelves, you can check out Brian Tamanaha's latest post at Balkinization.