Legal Ethics Forum

"Kaufman County DA, wife slain; link to Hasse murder probed"

In February, we posted about the murder of Kaufman County ADA Mark Hasse. Now comes another murder of a Kaufman County prosecutor: "Kaufman County District Attorney Mike McLelland and his wife Cynthia were found shot dead inside their Forney home on Saturday night, a chilling crime that put law enforcement agencies across Texas on high alert and shook prosecutors, defense attorneys and others in legal circles around North Texas." Authorities say the two killings may be linked. (h/t: Instapundit)

Prosecutor's argument -- you can't believe the defedant unless you conclude the police were lying -- came close to mis-stating the burden of proof, but was harmless error.

Ninth Circuit Blog is disappointed by the ruling. Key quote from the decision:

“[P]rosecutors have been admonished time and again to avoid statements to the effect that, if the defendant is innocent, government agents must be lying.” Id. at *3 (quotations and citation omitted). “Here, the prosecutor’s argument came very close to altering the burden of proof . . . [T]he prsoecutor’s argument that either the [officer] or Ruiz must be lying could well be construed as arguing an inference unsupported by the evidence, and thereby altering the burden of proof.” Id. at *4. “We need not decide the issue . . . because we conclude that, even if the prosecutor committed error, the error was harmless . . . “In light of the strength of the evidence, the prosecutor’s evidence did not materially affect the fairness of Ruiz’s trial.” Id. at *5.

"Judge whose angry rant was caught in YouTube clip is suspended for nearly 4 years"

ABA Journal has the story and the video clip. It's hard to watch and listen to.

Richard Zitrin, "Narrative Form Is an Untenable Solution in Criminal Cases"

Most observers believe that California has adopted the minority rule, "narrative question" approch to the problem of the criminal defendant client who intends to commit perjury. (I say that because the leading case is from our intermediate court of appeal. To my knowledge, our high court has not squarely addressed the issue.) Richard Zitrin finds that untenable. Key graf near the end:

Can we do better [than the narrative form solution]? The Johnson opinion is least persuasive when it criticizes disclosure to the court. This disclosure, coupled with testimony in the ordinary format, is far better than the lose-lose narrative solution. For me, if push came to shove I'd side with [Monroe] Freedman if my strong-arming my client failed, and put on the perjured testimony in the ordinary way, hoping that I won't lose my bar ticket afterwards. Juries are not easily fooled, and know full well that an accused has a motive of to lie. It's partly for this reason that many defense lawyers are reluctant to have their clients testify, regardless of the perjury issue.

Colorado Supreme Court reverses disqualification of public defender and recognizes client's right to waive conflicts

Opinion here.

The supreme court holds that the trial court abused its discretion when it disqualified Nozolino’s counsel of choice, Rosalie Roy and Kimberly Chalmers, from representing Nozolino in this case. Contrary to the trial court’s ruling, our analysis of the factors critical to the determination of whether Nozolino must be allowed to waive conflict-free representation convinces us that the balance weighs in favor of Nozolino’s preference for continued representation by Roy and Chalmers. Accordingly, we make the rule absolute and remand the case for an advisement on the record so that Nozolino may decide whether to waive conflict-free representation.

"Revenue and profits trending downward at Am Law 100 and 200 law firms"

Real Lawyers Have Blogs carries news and analysis about the AmLaw figures.  Greentarget crunches some of the numbers. Despite the negative headline, it appears that profits are strong at some firms and weaker at others.

Tennessee proposes to amend and broaden 8.4 to cover discrimination in legal practice

Instapundit carries the news and has links to the proposed language and public reaction. (I recall that we covered this issue when it arose in another state but I can't find it.) The ABA has this comparison of the various states' versions of comment [3] to 8.4.

Illinois State Bar Association releases Report on the Impact of Law School Debt on the Delivery of Legal Services

The Illinois State Bar Association formed a Special Committee on the Impact of Law School Debt on the Delivery of Legal Services, which just released a 54-page report.  Report here  The report including the following on threats to professionalism on Page 2 (Pages 29-31 discusses these concerns further):

Threats to Professionalism: The Special Committee heard much anecdotal evidence
suggesting that attorneys with heavy debt loads may be more likely to commit ethics
violations. The greatest pressures are on solo practitioners, who may take work
beyond their level of competency, face financial pressures to prolong litigation, or
terminate a representation inappropriately if a client has difficulty paying. Evidence
from the Attorney Registration and Disciplinary Commission does not yet show an
increase in ethics violations among lawyers with heavy debt loads. Nonetheless, this
data may be a lagging indicator of a problem that is already developing.

Paul Caron, "The Law School Crisis: What Would Jimmy McMillan Do?"

Article. Paul Caron has been looking at the economics of law school and thinking about how to reform legal edcuation. Here he focuses on the cost of legal education. Abstract:

Several years ago, I co-wrote an article on applying the principles from Michael Lewis’s Moneyball book to legal education. What Law Schools Can Learn from Billy Beane and the Oakland Athletics, 82 Tex. L. Rev. 1483 (2004). The article asked what Billy Beane would do as the dean of a law school to capitalize on the inefficiencies in legal education.

Perhaps a better model for the crisis facing legal education today is Jimmy McMillan, who ran for New York Governor in 2010 with the slogan “the rent is too damn high.” Law school tuition is simply too damn high. Administrators and faculty need to ruthlessly examine law school budgets and cut areas that are not essential to the school’s mission. Law school is twice as expensive as it was twenty years ago (in inflation-adjusted dollars), yet no one would argue that legal education is twice as good today.

Law schools need to take immediate action to confront today’s crisis. The current model – convincing 45,000 people each year to assume six-figure debt loads to chase 20,000 legal jobs (most of which do not pay enough to service the debt) – is simply unsustainable. Market and political forces are gathering steam. Law schools that embrace change will emerge stronger from the current storm.

James J. Sample, "Supreme Court Recusal: From Marbury to the Modern Day"

Article. (h/t: Legal Theory Blog) Here's something you dont read every day about a law professor: "Prior to attending law school, Professor Sample was a three-time Emmy Award winner for his work as a producer with NBC Sports." Abstract:

For Justices of the U.S. Supreme Court, controversies pitting personal conflicts — whether actual or merely alleged — against the constitutional commitment to the rule of law increasingly form the basis of a caustic and circular national dialogue that generates substantially more heat than light. While the profile of these controversies is undoubtedly waxing, the underlying tensions stretch back at least to Marbury v. Madison.

For all its seminal import, in Marbury, Chief Justice John Marshall adjudicated a case involving the validity of judicial commissions Marshall had himself signed and sealed. Equally remarkably, one of those judicial commissions belonged to Marshall’s own brother James.

In the centuries since, issues of actual and/or alleged Supreme Court conflicts have colored the context of landmark decisions, as well as the legacies of jurisprudential giants. Exploring many of the most compelling and controversial recusal sagas in the Court’s history, this Article trains attention on the factually-intensive real-world relationships that Supreme Court Justices have with issues and individuals. In today’s statutory disqualification terminology, these relationships fall — if anywhere — solely into the 28 U.S.C. § 455 nebulous catch-all provision in which a judge must disqualify himself or herself whenever their impartiality “might reasonably be questioned.”

The study yields a layered picture that is rich in historical imagery, anecdote, and analytically-critical context. In this respect, the Article includes, but is not limited to, treatments of the midnight Justices in Marbury; the Steel Seizure case and the “damned fool” whom Truman felt was the “biggest mistake he had made” as President; Thurgood Marshall’s long arc with the NAACP; perhaps the best-known duck-hunting trip of all time; Justice O’Connor’s election night outburst preceding Bush v. Gore; profound matters of issue identification involving Justices Ginsburg and Breyer; and finally the controversies surrounding the Patient Protection and Affordable Care Act, including the undisclosed income related to Virginia Thomas’s work opposing the health care legislation and Justice Kagan’s ill-advised e-mails including the memorable “I hear they have the votes, Larry!!”

The exploration serves as a navigational guide to the difficult but necessary task of separating the shrill cries from the serious constitutional concern of genuine Supreme Court conflict. The Article situates the analysis of Supreme Court disqualification practice, and particularly the circumstances involving Justices Thomas and Kagan vis-a`-vis the Patient Protection and Affordable Care Act, within the broader, enduring legal dichotomy of rules as opposed to standards. Pointing to Chief Justice Roberts’s recent, relatively bare assertion that when it comes to disqualification, the Supreme Court is simply constitution- ally and pragmatically different, the Article asserts that while the Chief Justice’s argument is neither emotionally nor intellectually satisfying, in an imperfect world, his argument is also entirely correct.

Finally, and in light of constitutional structure and historical norms, the Article asserts that it was entirely appropriate for both Justices Thomas and Kagan not to recuse themselves from the legal challenge to the Affordable Care Act. That said, the Article asserts that the controversies represent an important teachable moment — a moment in which the justices and the academy alike have the opportunity to elevate, rather than further denigrate, the national dialogue pertaining to high court conflicts.