Legal Ethics Forum

Ethics Professor Testifies that Former Student Committed Malpractice

Here's an interesting tidbit from a recent $1 million legal malpractice verdict against DLA Piper.  The plaintiff's ethics expert (Professor John Strait of Seattle University School of Law) had taught professional responsibility to the lawyer who was accused of malpractice.  Like many PR profs, I worry that I will read about the disciplinary problems of former students, but this is certainly an interesting (not troubling, just interesting) twist on that concern.

Another amusing and more conceptually interesting issue in the case is that a different professor at Seattle, David Boerner, offered an opinion that differed from Professor Strait's.  At first blush, one might have some concerns about two law professors who work together at the same law school giving testimony on opposite sides of the same case.  But this type of issue arises regularly in the context of law school clinics, and authorities generally agree that two clinics in the same law school can be on opposite sides of the same case as long as they operate independently from each other (see pages 528-30).  I see no reason why the answer should be different for professors serving as experts as long as the professors operate independently, do not share files, do not discuss the case with each other, and otherwise comply with ABA Op. 97-407. 

In any event, neither issue (being an expert against a former student or being an expert in a case where another professor from the same school is the opposing expert) strikes me as problematic, but the fact that both issues arose in the same case was notable.

Interesting Op-Ed Re Changing NY's Position on Review of Metadata

The op-ed is here.  Boiled down, a New York opinion says lawyers shouldn't look for metadata sent from opposing counsel (outside the discovery context, obviously), while the ABA says you can.  Sounds like a technical disagreement, but it boils down to whether it is "dishonest" to look for metadata.

What I have heard smart lawyers do is plant false metadata to mislead those who would be dishonest.... wait, there's something strange about that solution.

 

Federal prosecutor used pseudonym to bash judges, target

Nola.com carries this story about a prosecutor who used a pseudonym to post blog comments blasting a vareity of figures, including the target of an investigation.

More detail on the Sen Stevens trial fiasco

Main Justice has the lowdown on the breakdown. The article suggests that the fiasco was due to a mix of internal politics, bureaucracy, and bad judgment on the Brady issues.

UPDATE; White Collar Crime Prof links to a statement by the defense lawyers, Williams & Connolly, about the case. Also, see the comment of Monroe Freedman below.

U.S. v. Lopez-Avila

Apologies if this has been noted previously.

This was a drug importation prosecution. The defendant initially pled guilty and, in reply to the court, said she had not been threatened or forced to plead guilty. Later, she withdrew her plea and went to trial. She claimed that she was threatened with harm if she did not bring the drugs into the country. She testified.

On cross, the AUSA confronted her with her statement at the plea. But he read only part of the question, which made it appear that she had testified that the had not been threatened to commit the crime.  Defendant then answered "yes" when asked if she had lied at the plea hearing (the jury did not know it was a plea hearing).

 After the defense lawyer learned of the distortion, he successfully moved for a mistrial. The trial judge concluded that the damage could not be undone.

The defendant appealed the denial of her double jeopardy claim and lost in the circuit, but the court criticized the prosecutor by name in its first (January 2012) opinion. The government moved to delete his name. The February opinion amended the earlier opinion to explain why the court would not remove his name, which appears throughout, and criticized  the effort to delete it. It directed  the lower court to consider sanctions.

The AUSA claimed his reading of the plea question was plausible. Among other things, the court wrote:

"AUSA Jerry Albert represented to the trial court an altered version of the dialogue between the court and a witness at a hearing which had taken place in that same federal court. He presented a falsified version of an exchange as the true recitation of the transcript, until caught out by defense counsel. He did so to make it seem to the jury as if Lopez–Avila had lied under oath about being threatened to commit the cocaine possession crime, when she had plainly responded to a magistrate judge's question about whether she had been threatened to enter a plea of guilty. It is hard to see--and, from our vantage point as an appellate tribunal, we do not see--how a prosecutor could interpret a magistrate's question, 'Has anyone threatened you or forced you to plead guilty?', asked at a run-of-the-mill guilty plea hearing, to mean 'Has anyone threatened you to commit this offense or forced you to plead guilty?'”

 

Illinois appellate court rejects fiduciary duty exception to attorney client privilege

The good folks at Hinshaw have the news.

Teaching law students to make partner: professors' pie eating contest at Cornell

Video of this year's competition. I posted about this "lighter side" issue primarily to note that the winner of last year's inaugural event -- our very own Brad Wendel -- couldn't defend his title, as he's teaching in New Zealand this semester. (h/t: Dorf on Law)

Senator Stevens report available (525 pages long)

There's a link at the WSJ Law Blog. The DOJ has issued a press release about it, available at Main Justice.

UPDATE: White Collar Crime Prof Blog has a round-up and news about a possible legislative fix for the recurring Brady problem.

Update on Second Circuit's ruling on Judge Rakoff's rejection of settlement

We previously covered the news about Judge Rakoff's rejection of the settlement between the SEC and Citibank.  Judge Rakoff had gone so far as to send a warning to the appellants that he thought their representations to the Second Circuit were possibly false or misleading. Now comes news  from the NYT that the Second Circuit has ruled that the SEC has shown a liklihood of success on the merits -- that is, that Judge Rakoff's rejection of the settlement was likely error.

Sen. Stevens report to be released Thursday

Should be interesting reading. News at Politico and Blog of Legal Times.