Ethics

• Criminal Defense Weekly looks at an appellate case out of Tennessee, Smith v. Tennessee, where criminal defense counsel committed ineffective assistance by failing to investigate and present a motion to recuse the sentencing judge.
• How Appealing: Chief Justice Roberts sold his Pfizer shares, with two Pfizer cases now pending.  I'm expecting to hear more about this as the cases draw near.
• Law Firm Risk Management Blog takes a closer look at the disqualification we previously mentioned, where Winston Strawn was DQ'd from defending Pfizer in a $1 billion matter.  Part of the problem was the wording of the advance waiver, but that wasn't the only problem.
• Lawyer's Weekly is running a three-part series on the history of Canadian law schools. (h/t: Legal History Blog)
• Effland v. People, an appellate case from Colorado, held that the petitioner's statements should have been suppressed, but held that the prosecutor's comments to police officers that the petitioner was not entitled to counsel were not prosecutorial misconduct.  Key graphs:

"Finally, Petitioner argues that the statements he made during the hospital room interrogation require suppression because of prosecutorial misconduct. Specifically, Petitioner argues that the Deputy District Attorney's statement to Officers Sheets and Hodgkin that Petitioner was not entitled to an attorney constituted a violation of the Colorado Rules of Professional Conduct and the American Bar Association's Standards for Criminal Justice.

"In United States v. Russell, 411 U.S. 423, 431-32 (1973), the United States Supreme Court wrote that it was theoretically possible for "the conduct of law enforcement agents [to be] so outrageous that due-process principles would absolutely bar the government from invoking judicial processes to obtain a conviction." The court suggested that such conduct would have to violate "that `fundamental fairness, shocking to the universal sense of justice,' mandated by the Due Process Clause of the Fifth Amendment." Id. at 432 (quoting Kinsella v. U.S. ex rel. Singleton, 361 U.S. 234, 246 (1960)). Colorado has specifically recognized the due-process claim of outrageous government conduct. People v. Medina, 51 P.3d 1006, 1011 (Colo. App. 2001). Colorado defines "outrageous government conduct" in the same manner described by the Court in Russell ? "conduct that violates fundamental fairness and is shocking to the universal sense of justice." Id.

"Here, the issue of whether an individual who is not in custody has a constitutionally protected right to consult with counsel and, if so, the degree to which such a request must be honored, has not been decided by this court or the United States Supreme Court. Therefore, the Deputy District Attorney's statement was, at most, a reference to an undecided question of law. Further, the prosecutor's comment was made in the context of discussing the defendant's status, including the fact that he was not in legal custody and had not yet been charged with any criminal violation. In this context, the prosecutor was merely explaining that, in his opinion, Petitioner was not entitled to counsel. While it is debatable whether this was a misstatement of law, it did not rise to the level of outrageous government conduct. Cf. People v. Auld, 815 P.2d 956, 958 (Colo. App. 1991) (fictitious complaint drafted by district attorney for purpose of investigation of attorney suspected of receiving stolen property constituted outrageous government conduct). Accordingly, we affirm the court of appeals on this issue."