Criminal Law
Law Of Criminal Defense 
News, information, ethics opinions and analysis relating to criminal defense, legal ethics and professional responsibility.
Post Frequency: 1.5/day Last Entry: November 21, 2009 at 02:41:25 Recent Entries: 456
By John Wesley Hall, Jr.
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CA former prosecutor before state bar appellate panel for Brady violations
Posted on November 21, 2009A California Bar lawyer disciplinary appellate panel is considering an appeal of a four year suspension of the law license of a former prosecutor for a pattern of Brady violations. Ex-Santa Clara County prosecutor Ben Field faces tough fight in State Bar appeal by Howard Mintz...
Unprepared lawyer jailed for contempt
Posted on November 20, 2009On ABAjournal.com is this: Judge Jails 2 Attorneys for Contempt in 4 Days. One was a criminal defense lawyer who intentionally was not prepared for a murder trial because the lawyer was not paid. The other did not come back from a lunch break.
OH: Abandonment of client and defaulting disciplinary proceeding leads to indefinite suspension
Posted on November 19, 2009The Ohio Supreme Court held yesterday that a criminal defense lawyer who was appointed to represent a post-conviction client who never responded to the client's letters and effectively abandoned the client. Then the lawyer failed to respond to the disciplinary authorities after repeated tries, and the facts were taken as defaulted...
Lynne Stewart's conviction affirmed in CA2
Posted on November 18, 2009Criminal defense lawyer Lynn Stewart's conviction for aiding her terrorist client in her representation of him by passing messages along from jail to his followers in violation of the Special Administrative Measures of the jail was affirmed yesterday...
Maricopa Co, detention officer held in contempt for taking defense counsel's paper
Posted on November 18, 2009A few days ago is the post to a Maricopa County detention officer taking a document from a public defender's file in court: Maricopa Co, detention officer swipes paper of defense counsel from file during court. The officer has been found in contempt...
IN: Appearance of impropriety barred lawyer from being appointed special prosecutor, without proof of actual conflict
Posted on November 16, 2009The appearance of impropriety required a writ of prohibition be granted in the appointment of a special prosecutor, just because it looked bad because of a family relationship. State ex rel. Kirtz v. Delaware County Circuit Court No. 5, 18S00-0909-OR-411 (November 13, 2009): In sum, the evidence shows that Cummins was appointed to prosecute Kirtz just a few weeks after Kirtz testified against Cummins’s brother-in-law in a felony case in which Cummins had expressed interest and some support for his brother-in-law and other members of their family...
Defending the presumed "guilty"
Posted on November 16, 2009In today's NYT, an article about the difficulty in defending Maj. Hasan, accused Ft. Hood shooter: Defending a soldier in such a position [killing other solders] is difficult, but many defense lawyers relish the opportunity, Mr. Fidell said. “Anybody can defend an innocent person,” he said, “but defending a guilty person — that’s a professional challenge...
Criminal defense lawyer gets law license back after seven years
Posted on November 15, 2009One of Michigan's best known criminal defense lawyers lost his law license for seven years and just got it back. See the poignant Starting over: Terry J. Nolan regains law license.
Steve Bright in Weis v. State before the Georgia Supreme Court
Posted on November 14, 2009In Georgia, Steve Bright just argued Weis v. State on whether denial of a capital trial for four years because the state could not pay for a lawyer denied a speedy trial. A video of the oral argument is here. It is brilliant. See "Justices weigh cost of death defenses, Court debates case in which defense lawyers say their client has been denied a speedy trial because state could not pay them," by Alyson M...
Why do some Republicans hate criminal defense lawyers?
Posted on November 14, 2009Sarah Palin apparently has a dim view of the criminal defense lawyer's role and the Sixth Amendment. On ABCNews.com is this jewel about Palin's complaints about giving Khalid Shaikh Mohammed and four co-conspirators a jury trial in the Southern District of New York: She adds, "Criminal defense attorneys will now enter into delaying tactics and other methods in the hope of securing some kind of win for their 'clients...
New law review article on lawyers as criminal defendants
Posted on November 12, 2009Leslie C. Levin, Bad Apples, Bad Lawyers or Bad Decisionmaking: Lessons from Psychology and from Lawyers in the Dock, 22 Geo. J. Legal Ethics 1549 (2009), not yet on Westlaw and a paid download.
CA9: CJA counsel's cross-examination at trial did not support the CJA fee request
Posted on November 11, 2009The District Court's 48% reduction of CJA counsel's second interim fee request was within the court's discretion based on the judge's observation of the trial not matching the trial preparation. There was no question as to the veracity of the fee request; it just appeared unnecessary...
Fair criticism? probably.
Posted on November 11, 2009This blog is criticized today on Simple Justice for using the US Law Blog network logo. It started out with an email from an in-house lawyer at ALM. She wanted to know what became of my battle with the scummy scraper website, US Law dot com, a commercial enterprise built on the premise that it could take the content from legitimate blawgs, republish them, duplicate their image with their own logo superimposed on the face and sell advertising for their efforts...
Judge "lambastes" lawyers over sarcastic trial brief
Posted on November 11, 2009In the case involving the subpoenas for the grades of the Northwestern students, the lawyers opposing the subpoenas, Sidley Austin, no less, were chastised by the trial judge for dripping sarcasm in their brief. See Lynne Marek, Chicago judge lambastes Sidley lawyers over brief on Law...
Money laundering and fees paid by a drug dealer?
Posted on November 10, 2009See R. Robin McDonald, Fulton County Daily Report, Legal Fees Paid by Drug Trafficker at Issue in Ga. Money-Laundering Case. And failure to report is a part of it. Jury selection began Monday in the trial of a Columbus, Ga., criminal defense lawyer who faces federal money-laundering charges stemming from legal fees paid to him by his client, a convicted drug trafficker...
Lawyers for the D.C. sniper
Posted on November 10, 2009An interesting interview with the lawyers representing the D.C. sniper, about going to his execution. Detecting glimpses of humanity in D.C. sniper.
"Conflicts of Interest in Criminal Cases: Should the Prosecution Have a Duty to Disclose?"
Posted on November 10, 2009New law review article on SSRN: Anne Poulin of Villanova School of Law, Conflicts of Interest in Criminal Cases: Should the Prosecution Have a Duty to Disclose?, __ Am. Crim. L. Rev. ___ (forthcoming). The abstract: This article addresses two types of conflicts of interests that arise in criminal cases: 1) when defense counsel has an employment relation to the prosecutor’s office, and 2) when defense counsel faces criminal investigation or charges...
SCOTUS: ABA's DP standards are only "guides"
Posted on November 09, 2009SCOTUS decides today per curiam, without full briefing and argument, that the ABA Standards in death penalty cases are not determinative to a trial nearly 20 years earlier. They are only "guides." The IAC standard at the time (pre-Strickland?) had to be considered...
Houston criminal defense lawyer accused of barratry
Posted on November 07, 2009AHouston lawyer denies soliciting clients, He’s accused of sharing fees with a man who refers defendants to him as they leave jail on Houston Chronicle's website, by Brian Rogers: A Houston criminal defense lawyer accused of soliciting defendants as they leave Harris County's jail has denied wrongdoing, saying he has been targeted because of his work and his frequent judicial campaigns...
Maricopa Co, detention officer swipes paper of defense counsel from file during court
Posted on November 04, 2009On Heat City from Phoenix, in court video catches a sheriff's detention officer looking in defense counsel's file during a sentencing, which resulted in the sentencing being postponed. Detention officer tries to explain why he swiped attorney's file, by Nick R...
GA: Murderer could hire criminal defense lawyers from estate before conviction
Posted on November 04, 2009A statute that a murder cannot take from the estate of the deceased did not prevent her from hiring two criminal defense lawyers from the proceeds of what would be in the estate on her indictment. At the time of the payment, she had not been found guilty in any proceeding...
FL lawyer disbarred for false statements in fee applications for criminal cases
Posted on October 30, 2009A criminal defense lawyer in Florida was disbarred by consent for false statements about fees for appointed cases and for not keeping funds in trust for an appeal. See Stuart criminal defense attorney Udell disbarred.
Still more on Willingham
Posted on October 30, 2009Still more on the Willingham case and defense counsel's continued assertions he was guilty, despite the new evidence there was no arson; this time on ABAJournal.com: Defense Lawyer Says Executed Client Was Guilty in Texas Arson. More CYA.
TX: 90 days for masturbatory hand gesture to judge affirmed
Posted on October 28, 2009The Texas Court of Criminal Appeals affirmed a lawyer's 90 day sentence for a masturbatory gesture in court about the prosecutor's argument. Ex Parte Reposa, AP-75,965 (October 28, 2009) (unpublished) (with 60 footnotes). Apparently he was considered an habitual offender: Next we address the applicant's contention that his sentence was unconstitutionally disproportionate to his contumacious act...
CA11: No crime in the Kuehne case
Posted on October 27, 2009In a case we have all been watching, in Ben Kuehne's money laundering case, the 11th Circuit holds that no crime was committed in his vetting the Colombian drug lord's assets for untainted money, and the § 1957 exemption for bona fide attorneys fees controls...
More on Willingham in Texas
Posted on October 27, 2009More on the Willingham case on Concurring Opinion: No Loyalty to Dead Clients? by Dave Hoffman.
Allegheny County Jail attorney-client calls accidentally taped and turned over to feds
Posted on October 24, 2009The Allegheny County Jail in Pittsburgh is reported to be turning over attorney-client telephone calls to the feds. See Paula Reed Ward in the Pittsburgh Post-Gazette: Jail taped inmate-lawyer calls 'Incensed' public defender says attorney-client rights at risk: The federal public defender in Pittsburgh says the Allegheny County Jail has been inappropriately recording telephone calls between defense attorneys and their clients and in some cases turning those recordings over to the U...
Stress and the death penalty lawyer
Posted on October 19, 2009NYTimes today: Once Convicts’ Last Hope, Now a Students’ Advocate, about a Georgia death penalty lawyer who gave it up for health reasons to be a middle school teacher. Compelling reading.
Lawyer jailed for contempt for accusing judge and prosecutor of criminal conduct in a pleading
Posted on October 18, 2009A Missouri criminal defense lawyer has been jailed for 120 days for contempt for a pleading that accused the judge and prosecutors in a case with "personal interest, bias and purported criminal conduct." The contempt was a result of a jury trial and imposed under common law, not statute, so it is not appealable under Missouri law...
Willingham's "trial lawyer" on CNN, and it's bad
Posted on October 17, 2009On the Burnt Orange Report, Todd Willingham's trial counsel is quoted as saying that "Willingham was a man without a conscience" and was guilty of the crime he was executed for. He has no doubt that it was arson and Willingham is guilty, even though all the new expert witnesses say that it was not arson, therefore, no crime...
AL criminal defense lawyer jailed for contempt for asking barred question
Posted on October 16, 2009A criminal defense lawyer in Alabama was held in contempt and ordered jailed for 32 hours for asking a question that had been previously barred: Whether the victim worked in a strip club.
Law.com: "Court Fines Lawyer for Sloppy Cite"
Posted on October 15, 2009A lawyer was fined $100 for a bad citation in a brief that wasted an appellate court's time. See Law.com legal blog watch: Court Fines Lawyer for Sloppy Cite tracking back through four websites. See ABAJ.com.
NLJ: "A day about bad lawyering at the high court"
Posted on October 14, 2009In NLJ.com today: A day about bad lawyering at the high court about criminal cases.
SF lawyer has 8 stand in audience to seek to confuse witness; they are arrested for witness intimidation
Posted on October 12, 2009A SF criminal defense lawyer is accused of witness intimidation for arranging to have gang members in the audience stand in unison in the audience when a witness was asked in a murder case whether the defendant was in the courtroom. She ID'd the defendant anyway...
Economic indicator
Posted on October 12, 2009You know you're in a recession when even drug dealers don't have money.
Raymond Brown dies at 94
Posted on October 11, 2009Raymond Brown, the man many reasonably believe to be one of the greatest criminal lawyers ever, has died. Prominent N.J. attorney, civil-rights leader Ray Brown dies at age 94.
NC lawyer convicted of structuring deposits, although all taxes were paid
Posted on October 09, 2009"Prominent" NC criminal defense lawyer convicted of structuring bank deposits to less than $10,000 to avoid the reporting requirements, although he paid his taxes. See Prominent lawyer found guilty. Update here from the same paper.
Lawyer not in contempt for refusing to testify that defendant failed to appear
Posted on September 30, 2009On ABAJournal.com is this today: Contempt Charge Dropped Against Lawyer Who Refused to Testify Against Client over the client's failure to appear. The court held the information was privileged. All courts have held that that I am aware of.
Keiffer indicted in Colorado for conducting trial there
Posted on September 29, 2009Howard Keiffer has been indicted in Colorado, too: Grand jury again indicts ex-con who posed as Aspen lawyer: A fake lawyer already serving 51 months in prison was indicted again by a federal grand jury in Denver for pretending to be an attorney during a Colorado murder-for-hire trial...
SC: IAC claim was complete waiver of A-C privilege
Posted on September 27, 2009IAC claim by statute was a complete waiver of attorney-client privilege. Trial capital defense counsel provided the prosecution access to the entire defense file. When the client sought disqualification of defense counsel for his misconduct, the court found a complete waiver of the attorney-client privilege...
"Lawyer cuffed; defendant sentenced"
Posted on September 26, 2009A criminal defense lawyer was handcuffed at the direction of the judge for talking over the judge. The handcuffs were removed later and the lawyer left the courtroom not in custody. Lawyer cuffed; defendant sentenced on PhillyBurbs.com.
PA lawyer convicted of stealing money from a drug dealer
Posted on September 25, 2009The Legal Profession Blog has a post about a lawyer convicted of stealing $20,000 from a drug dealer client filing a motion for new trial based on Internet postings by one of the jurors reflecting bias. The post references a news article not linked, but here, from September 9th, Judge finds no wrongdoing by jury, because the internet post was from an alternate who did not deliberate: No juror acted improperly during the trial of disgraced attorney Daniel L...
Former Asst. PD convicted of sex with client as "official misconduct"
Posted on September 24, 2009A former Assistant Public Defender was convicted of a misdemeanor offense of official misconduct for allegedly stating that he would work harder on his client's case if she had sex with him. See TimesUnion.com's Lawyer guilty of sex with client. His lawyer objected to a tape as evidence because it was of poor quality...
"DC. Court of Appeals Says Upfront Fees Don't Belong to Lawyer"
Posted on September 24, 2009On the Blog of Legal Times, D.C. Court of Appeals Says Upfront Fees Don't Belong to Lawyer, involving the case of In re Mance, 06-BG-890 (D.C. September 24, 2009). Important case following In re Sather from Colorado: We begin our analysis by describing the nature of a flat fee...
WA: Three year suspension for failing to file CTR; client ratted out lawyer
Posted on September 23, 2009Disbarment is the presumptive sanction for a conviction for failing to file a CTR. Here, mitigating circumstances led to a three year suspension. The client, a former lawyer, paid his criminal defense lawyer in cash in a paper bag, and the lawyer put the money in his home safe...
Kuenhe oral argument today in CA11
Posted on September 23, 2009Ben Kuehne's dismissed indictment was heard in oral argument by a "skeptical" panel of the Eleventh Circuit today on the government's appeal. Kuehne was retained to vet the legality of a Columbian drug lords fee, and he was indicted for apparently good faith advice...
Lawyer outted for sloppy pleading drafting
Posted on September 22, 2009A Florida lawyer is chastised for a sloppy pleading. Benchslap: Judge Orders Local Attorney to ‘Re-Read … FRCP’, and it is going around the internet. The judge marked up the offending pleading, and put the mark up on PACER, and it's linked in the article...
The walls have ears
Posted on September 21, 2009In the Ukiah, CA Daily Journal today is an article entitled Judicial Follies, with a tale from a 1952 murder case in San Angelo TX where the defendant called his lawyer in Dallas and admitted to killing his wife in San Angelo. The operator just happened to have listened in and testified to overhearing the conversation, despite attorney client privilege...
SC criminal defense lawyer allegedly hired hit man for former office mate
Posted on September 20, 2009A Conway, SC criminal defense lawyer is accused of hiring a hit man to kill a lawyer he shared space with. See ABAJournal.com: Attorney Accused of Trying to Hire a Hit Man to Kill Another Lawyer. The Sun News article is here. (He's not a member of NACDL...
Stanford gets CJA counsel
Posted on September 19, 2009Stanford gets Kent Schaffer at taxpayer expense. See Laurel Brubaker Calkins and Andrew M. Harris, Stanford Gets Champagne Defense on Beer Budget as Public Pays, on Bloomberg.com: R. Allen Stanford, the Texas financier accused of leading a $7 billion fraud, will be defended by some of Houston’s most talented lawyers at taxpayer expense...
"My Cousin Vinny" cited by 7th Cir.
Posted on September 18, 2009Lawyer jailed for contempt during trial was not shown to have denied defendant of effective assistance of counsel because counsel was sleep deprived in the county jail. Sutherland v. Gaetz, 08-1404 (7th Cir. September 14, 2009). Footnote 1: Defense counsel’s obstinate behavior and the court’s exasperation with it may be reminiscent for some of the contentious interplay between the fictional characters of Vincent LaGuardia Gambini and Judge Chamberlain Haller in the film “My Cousin Vinnie...
Boston.com: Lawyer acquitted of smuggling heroin into priston
Posted on September 17, 2009Back in 2007 is this post about a Massachusetts lawyer charged with smuggling heroin into a prison. He was acquitted today: Lawyer not guilty in drug delivery on Boston.com: A Norfolk judge has acquitted a Boston lawyer of charges he sought to deliver heroin to an inmate at MCI-Cedar Junction in Walpole...
Stanford gets FPD
Posted on September 15, 2009R. Allen Stanford in Houston ends up with the FPD for the S.D. Tex. Dick DeGuerin quoted a $20M fee, but Stanford no long had money.
NYT: Blogging about judges; FL lawyer catches a beef
Posted on September 13, 2009Another lawyer blogging ethics complaint article in today's NYTimes: A Legal Battle: Online Attitude vs. Rules of the Bar. A Florida lawyer blogs about judges and he catches an ethical beef: Sean Conway was steamed at a Fort Lauderdale judge, so he did what millions of angry people do these days: he blogged about her, saying she was an “Evil, Unfair Witch...
"Gideon: Right to Counsel?: Landmark Decision Falls Short of Promise"
Posted on September 12, 2009Bob Kemper, Gideon: Right to Counsel?: Landmark Decision Falls Short of Promise, D.C. Bar's Washington Lawyer (Sept. 2009).
Blogging PD catches a disciplinary beef
Posted on September 11, 2009A former public defender who blogged about clients and judges is in disciplinary trouble for ID'g clients on the blog, presumably not calling some judges assholes. See ABAJournal.com: Blogging Assistant PD Accused of Revealing Secrets of Little-Disguised Clients.
CA8: Giving sentencing counsel one week to read 24 volumes of co-defendant's trial record was not denial of counsel
Posted on September 08, 2009Giving sentencing counsel one week to read 24 volumes of the co-defendant's murder trial before sentencing was difficult and could have been handled better, but it was not a complete denial of counsel on this record. United States v. Clay, 2009 U.S. App...
Peter Baird, one of Miranda's lawyers, dies
Posted on September 03, 2009Peter Baird, one of Ernesto Miranda's lawyers from Phoenix, died last week. He defended Miranda on remand. His obituary appears in various papers across the country. NLJ here. He apparently was the last surviving lawyer.
CA requires disclosure of malpractice insurance starting in '10
Posted on September 03, 2009California requires disclosure of malpractice insurance, starting January 1st. See California Rules of Professional Conduct 3-410. It exempts house counsel and government lawyers. What about CJA lawyers? Nobody asked before the rule was adopted, it seems.
W.D.La.: Defense counsel's strategy to deny knowledge of drugs hidden in a car was reasonable
Posted on August 30, 2009Defense counsel's decision to argue in a conspiracy case that a hidden compartment was unknown to him was reasonable. It was also reasonable to advise the defendant not to testify on this record. United States v. Villalovos, 2009 U.S. Dist. LEXIS 75913 (W...
Mexican drug wars now killing criminal defense lawyers
Posted on August 30, 2009The Mexican drug wars have led to the murders of two criminal defense lawyers. See LATimes today: Prominent defense lawyer is stabbed to death. Why would defense lawyers get killed? Because they are arguing for somebody's control?
CA8: Completely bungled defaulted by IAC death case may have no relief left
Posted on August 29, 2009A habeas petitioner represented in his state post-conviction proceedings by an incompetent convicted felon from another state (the licensing state did not know about the conviction until he was convicted of fraud in federal court) defaulted his claims...
In re Sawyer
Posted on August 25, 2009An attorney actively engaged in the conduct of a trial is not merely another citizen. He is an intimate and trusted and essential part of the machinery of justice, an "officer of the court" in the most compelling sense. --In re Sawyer, 360 U.S. 622, 668 (1959)
Charles Dickens: ?If there were no bad people there would be no good lawyers?
Posted on August 24, 2009“If there were no bad people there would be no good lawyers.” --Charles Dickens, Old Curiosity Shop ch. 56, at 350 (1841) The full passage, p. 349-50: It's a very pleasant world we live in, yes sir, a very pleasant world. There are bad people in it, Mr...
Tacoma WA lawyer arrested for dealing marijuana from home/office
Posted on August 24, 2009A Tacoma, WA lawyer was arrested for allegedly dealing marijuana from his home/office.
Are your moral standards are flexible?
Posted on August 23, 2009Society is indeed fortunate that there exists among lawyers those whose moral standards are sufficiently flexible so as to enable them to practice criminal law. --John G. Milburn, President, NY City Bar, 1920. (Judy Clark uses this quote in CLEs, and that's where I got it...
NPR: "Not Enough Money or Time to Defend Detroit's Poor
Posted on August 22, 2009NPR's "All Things Considered" on indigent defense in Detroit: Not Enough Money Or Time To Defend Detroit's Poor. A sad story about indigent defense funding and the client. Detroit has a hybrid system with appointed counsel.
Stanford case goings on over fees
Posted on August 22, 2009In the Stanford case, the Houston Chronicle reports that lawyers in the case were involved in an altercation while discussing fees about a month ago. Accounts differ; nobody's pressing charges. The fee in dispute? Allegedly $30M.
Simels convicted in E.D.N.Y. after seven days of deliberation
Posted on August 20, 2009Criminal defense lawyer Robert Simels was found guilty in Brooklyn federal court today of conspiracy to commit witness tampering. See Bloomberg News: Lawyer Convicted of Plan to ‘Neutralize’ Witnesses. See also NYPost.com, NYTimes, NY Lawyer Guilty of Witness Tampering in Drug Case, SD Union-Tribune...
Phony lawyer gets 51 months
Posted on August 17, 2009Howard O. Kieffer, convicted of being a fake lawyer in jury trials, was sentenced to 51 months in federal court on Friday. P rior post is here and here about the trial.
Gentile a special prosecutor in NV
Posted on August 12, 2009Dominic Gentile, of Gentile v. State Bar of Nevada fame, has been retained to be a special prosecutor in the fraud case of Lt. Gov. Brian Krolicki, for $415,000.
GA: Making faces not contempt, at least in this case
Posted on August 11, 2009Monroe Freedman in BNA, posted on Legal Ethics Forum that a juvenile defender in a child welfare proceeding who allegedly made faces as she was writing down the judge's comments could not be found in contempt because there was no likelihood the actions, if true, interfered with the administration of justice...
NYT: In China, they arrest lawyers
Posted on August 10, 2009In China, they arrest lawyers: See NYT today: Lawyer’s Detention Shakes China’s Rights Movement: China’s nascent legal rights movement, already reeling from a crackdown on crusading lawyers, the kidnapping of defense witnesses and the shuttering of a prominent legal clinic, has been shaken by the detention of a widely respected rights defender who has been incommunicado since the police led him away from his apartment 12 days ago...
Accused NYC criminal defense lawyer testifies in his own behalf
Posted on August 05, 2009The case of the NYC lawyer on trial in Brooklyn, posted here, had the accused defense counsel testify in his own behalf yesterday, denying that he planned any harm or to bribe a witness. He was repeatedly recorded by a snitch, wired by the FBI. He testified he used "kill a witness" in the context of cross-examination, particularly since he is recognized for his prowess as a cross-examiner...
Missing federal trial because of scheduling conflict results in 3 days in jail
Posted on August 05, 2009A KC lawyer was sentenced to three days for contempt in federal court for missing a federal standby counsel gig when he was double booked in state court in a murder trial. The federal client was to have pled guilty and didn't, resulting in the scheduling conflict...
Chron.com: Stanford can't get a lawyer paid
Posted on August 04, 2009Houston Chronicle tonight: Lawyers balk at representing Stanford / They want guarantees the fallen financier will pay them. The government has all the money, thereby rendering Stanford a pauper.
ABAJ: "Facebooking Judge Catches Lawyer in Lie, Sees Ethical Breaches"
Posted on August 04, 2009Facebooking about the judge, your opponent, your client? They may be watching. See ABAJournal.com: Facebooking Judge Catches Lawyer in Lie, Sees Ethical Breaches: [Judge] Criss recalled one time that a lawyer asked for a continuance because of the death of her father...
NYC: Government contends criminal defense lawyer conspired to bribe witnesses
Posted on August 01, 2009NYC criminal defense lawyer on trial in Brooklyn for allegedly plotting to bribe witnesses in a "win at all costs" defense. His defense: it was a sting because witnesses were seeking bribes. The story of the arrest is here.
CNBC: "Stanford Lawyer Quits over Cash"
Posted on August 01, 2009CNBC: Dick DeGuerin released as Sanford's lawyer because the government won't release any money for defense. Accused fraudster Allen Stanford once claimed a net worth of more than $2 billion. But with all of his assets frozen by a federal judge, he has no funds to pay his high-powered criminal defense lawyer, Dick DeGuerin of Houston...
GA: Contempt for facial expression reversed
Posted on July 24, 2009From the Fulton County Daily Report: Panel Tosses Contempt Sentence Against Lawyer for 'Sarcastic' Expression. The FCDR report is interesting, and the comments under the ABAJournal post are worth a read, too.
KY adopts new ethics rule eff. July 15
Posted on July 23, 2009Kentucky has overhauled its ethics rules effective July 15th.
Some days are just too good
Posted on July 22, 2009Actual piece of testimony: State of Arkansas v. Richard A. "Jake" Fisher, Arkansas County CR2008-240, Jury trial July 21, 2009: State's witness number 4, Dr. Hershel N. Pollard, Jr., D.Psy., qualified as an expert witness Direct Examination, continuing, reading from his notes of his therapy session with J...
Criminal defense lawyer as snitch? U.S. v. Shelnutt
Posted on July 18, 2009In the bizarre case of U.S. v. Shelnutt, the feds enlisted one criminal defense lawyer to get information against another. See Law.com today: Judge: Prosecutor's Lie Will Not Derail Indictment Against Defense Attorney: A federal money-laundering case against a Columbus, Ga...
American Cop Magazine: "In Defense of Defense Attorneys"
Posted on July 16, 2009In interesting take from a prosecutor, explaining to police officers why defense lawyers are necessary: Jeremy D. Clough, In Defense of Defense Attorneys: Why we have them, Why we need them, in American Cop Magazine at 50-51, 63-64 (Mar/Apr 2009).
PA: Legal advice while under CLE suspension gets further suspension
Posted on July 16, 2009A lawyer "inactive" for not satisfying his CLE obligation who gave legal advice is suspended for six months by Pennsylvania. Office of Disciplinary Counsel v. Moore, 1486 Disciplinary Docket No. 3 (July 13, 2009).
Philadelphia lawyer arrested for attempting to smuggle heroin into jail
Posted on July 15, 2009A Philadelphia lawyer has been arrested for attempting to smuggle heroin into the Delaware County jail. Lawyer accused of trying to smuggle drugs into jail: A routine ion scan, used to detect controlled substances, was performed on Sommovilla by a guard using a wand...
Jail for barred voir dire question?
Posted on July 15, 2009A lawyer in a patent infringement case risks jail for asking a prohibited question during voir dire, which he defended after the fact rather lamely. A mistrial was granted, and, in the new trial, the defense will get extra time for voir dire and two more peremptories.
CA6: Seven year suspension in USDC for contempt affirmed
Posted on July 10, 2009Herb Moncier's contempt in the Eastern District of Tennessee has been upheld on the facts and law, but the case was remanded for disposition before a different district judge. United States v. Moncier, 07-6053 (6th Cir. July 8, 2009). It was argued that the lawyer had a duty to interject into a colloquy between the defendant and the court over a conflict of interest when the lawyer stated that the court should inquire of the client: To all of which there is a simple answer: There is no right of revolution in a United States District Court...
Confidentiality and client suicide
Posted on July 08, 2009On Legal Ethics Forum: Confidentiality and client suicide.
ICTR defense investigator imprisoned for contempt for violating protective measures for witnesses
Posted on July 06, 2009An ICTR defense investigator was sentenced to 10 months for contempt for violation court ordered protective measures for witnesses.
NJ: Defense counsel has right to access child porn evidence in case without using the government's computers
Posted on July 03, 2009New Jersey has held that defense counsel has a right of access to child pornography, under strict controls, to evaluate it in child porn case. See AP: Ex-NJ lawmaker's lawyer can access child porn pics: Prosecutors objected to letting Cohen's team have control of the photos, claiming that releasing them could further victimize the children and create a risk that the images could be further disseminated...
PA case fixing case nets lawyer guilty plea
Posted on July 03, 2009Lawyer pleads guilty in Pennsylvania case alleging fixing of cases. See ABAJournal.com: Disgraced Pa. Judge: I Didn’t Discuss $3.5M Libel Case.
NY conviction set aside by trial judge bacause defense counsel slept during trial
Posted on June 25, 2009From ABAJournal.com is the report of a conviction set aside because defense counsel slept and read magazines during the client's trial. See After Judge Finds Lawyer Slept During Trial, He Tosses Weapons Conviction: A New York criminal defense lawyer who's taken more than 600 cases to trial is on the hot seat after a Brooklyn judge tossed one client's conviction...
CA11: Lack of collegiality in FLSA case against law firm supported denial of fees to prevailing plaintiff
Posted on June 24, 2009Eleventh Circuit denies attorneys fees to a prevailing party in a civil case for "lack of collegiality." The case was a Fair Labor Standards Act case against a law firm, and the appeal was deciding the trial court's denial of attorney's fees to the prevailing plaintiff...
Criminal defense lawyer throws a fit when client denied bail, but judge missed it
Posted on June 22, 2009A criminal "defense lawyer went ballistic" in court when his client is denied bail. See Philly.com: A defense lawyer went ballistic at the Criminal Justice Center yesterday after a judge initially refused to lower his client's bail or change his sentence in a contempt case...
Defense lawyer solicited by juror for bribe
Posted on June 22, 2009From ABAJournal.com: Federal Juror Charged With Bribery, Allegedly Solicited Defense Lawyer: A federal juror has been charged with bribery and contempt of court after allegedly seeking money from a defense lawyer in a tax evasion case against a St. Louis-area automobile dealer...
Spokane PD assists in holding client attempting to flee court, and the NACDL list serv goes wild
Posted on June 22, 2009Maybe the hottest ethics debate of the year over the last two days on the NACDL list serv is this story from Spokane, Municipal court brawl leads to arrest, where a defendant attempting to flee court was held, at least in part, by his public defender holding his leg: A brawl that began when a man tried fleeing a courtroom this morning ended with the man, a deputy and three attorneys falling onto a bench of bystanders, according to the Spokane County Sheriff’s Office...
CA criminal defense lawyer indicted for money laundering client funds
Posted on June 17, 2009A California criminal defense lawyer was indicted with clients for allegedly participating in money laundering for clients. See Feds unseal indictment against LA street gang: The indictment also charged criminal defense attorney Isaac Guillen, 48, of West Covina, with laundering illegal proceeds on behalf of the Mexican Mafia, a prison-based gang that often controls the activities of Latino street gangs in California...
MA: Conviction reversed of client held to have forfeited right to counsel by threatening lawyer which defendant later said was a "stunt"
Posted on June 14, 2009§ 2:18 n.2 Com. v. Means, 2009 WL 1623439 (Mass. June 12, 2009) (defendant sent a letter to court threatening to assault or kill defense counsel and his family; trial court held defendant forfeited right to counsel; defendant then apologized and said it was a stunt; pro se conviction reversed because of inadequate inquiry into forfeiture).
AK OKs use of "SuperLawyers" in lawyer advertising with explanation
Posted on June 13, 2009Alaska holds the use of "SuperLawyers" in lawyer advertising is not unethical, following the majority. Alaska Op. 2009-2: A minority of jurisdictions has determined that references to rankings in a publication such as Super Lawyers are unethical. For example, the New Jersey Supreme Court’s Committee on Attorney Advertising ruled that advertising an attorney’s inclusion in Super Lawyers is a violation of Rule 7...
Billing client for sex?
Posted on June 12, 2009In the U.K., a lawyer billed a client for time having sex with her.
U.S. v. Ghailani, S.D.N.Y.
Posted on June 10, 2009Law.com has this interesting post about Ahmed Ghailani's case in the Southern District of New York: As First Guantanamo Detainee Faces Federal Court Criminal Trial, He's Laden with Lawyers.
D.C.: Misrepresenting Sr. status at law firm warrants suspension
Posted on June 10, 2009Law.com reports today that the D.C. Bar has recommended suspension of a lawyer for misrepresenting that he was senior counsel at a D.C. law firm when he was just an associate, even with a mea culpa.
Philly criminal defense lawyer who fled charges back in court
Posted on June 10, 2009A Philadelphia criminal defense lawyer who was on the lam from house arrest for bringing drugs into a jail, and finally arrested, was back in court with new charges. See Philly.com: More charges for lawyer who fled house arrest.
FL: Criminal defense lawyer accused of overbilling appointed work
Posted on June 09, 2009On the Legal Profession Blog, a criminal defense lawyer who billed local government is accused of overbilling, some days to even more than 24 hours a day. A disciplinary action is pending: A Jacksonville lawyer accused of overbilling taxpayers hundreds of thousands of dollars to represent poor defendants could face discipline by The Florida Bar, where a formal complaint has been filed against him...
PA lawyer who gave client money to drug cartel convicted
Posted on June 09, 2009A lawyer who gave client funds was convicted and sentenced to 2-4 years in prison in Pennsylvania state court. See Philly.com: McCaughan was representing a man charged with drug trafficking. When the client's mother asked McCaughan to return the $20,000, prosecutors said, the attorney told her that he had not put the money in escrow, and that he had given the money to a drug cartel tied to the state of Texas...
Cook Co. P.D. out of money for death cases
Posted on June 06, 2009Cook County P.D.'s office cannot afford to handle any more death cases because the legislature won't pay enough to handle them. See Chicago Tribune, NBC Chicago, Salon.com.
Use of a third person to "Friend" somebody on Facebook for litigation information is unethical
Posted on June 06, 2009Getting a third person to "Friend" a Facebook user to get information for the lawyer without informing the third person is unethical. Philadephia Op. 2009-02 (March 2009): Turning to the ethical substance of the inquiry, the Committee believes that the proposed course of conduct contemplated by the inquirer would violate Rule 8...
NYT: "A Promise to Be Ethical in an Era of Immorality"
Posted on May 31, 2009An article about business ethics relevant to us from NYT: A Promise to Be Ethical in an Era of Immorality.
NC: Sexual harassment of employees results in 5 year suspension
Posted on May 30, 2009NC PD suspended for five years for sexually harassing employees.
NJ.com: Bergin denied bail in murder case
Posted on May 30, 2009Paul Bergin was denied bail in his witness murder case. The prior post is here. Yesterday's article on NJ.com had this: But Arleo questioned the lawyer about the recordings. The transcript includes Bergrin allegedly ordering a witness to be killed. He even suggested the shooter wear a ski mask and to make the slaying appear random, according to the transcript...
Lawyer gets 87 months for money laundering for the client
Posted on May 29, 2009Massachusetts criminal defense lawyer gets 87 months for money laundering client funds. See Law.com's: Mass. Lawyer Sentenced to 87 Months for Money Laundering, Obstruction of Justice.
"Black Robe Syndrome" and a federal judge
Posted on May 28, 2009The "Black Robe Syndrome" and Judge Kent of the S.D. Tex., per the Chief Judge of the Circuit: The medical reports paint a picture of a man who has had psychological problems in dealing with the high authority inherent in his position Based on his guilty plea, he has vacated his chambers in Galveston...
Houston Chronicle: Lawyer may be investigated for bring e-mailed photo of a bare breast to client in jail
Posted on May 28, 2009Defense counsel in a death case subject to investigation for bringing an e-mailed photo to the client in jail through counsel that included a picture of a bare breast. See yesterday's Houston Chronicle: Fratta’s lawyer may face inquiry. The client says that he has seen "far worse" in the jail...
Houston Chronicle: Harris County lawyers way over case limits
Posted on May 26, 2009In the Houston Chronicle last night: Attorneys overworked in capital cases / About one-third are over recommended limit on felonies: Lawyer Jerome Godinich, chastised by the 5th Circuit Court of Appeals this year for repeatedly failing to meet federal death penalty deadlines, has represented an average of 360 felony clients per year in Harris County — a caseload that surpasses every other similar attorney...
SCOTUS overrules Michigan v. Jackson on right to counsel in interrogations
Posted on May 26, 2009Today, the Supreme Court overruled Michigan v. Jackson (1986), and the Court held that automatically appointed counsel did not work to invoke a right to counsel. Montejo v. Louisiana, No. 07-1529 (May 26, 2009). The Syllabus: At a preliminary hearing required by Louisiana law, petitioner Montejo was charged with first-degree murder, and the court ordered the appointment of counsel...
NE: Disbarment for conviction for structuring of bank deposits
Posted on May 23, 2009A guilty plea to structuring of bank transactions (3 $9k deposits on consecutive days) was a crime of moral turpitude because structuring has been a crime for a long time. When coupled with other violations of DRs, the attorney is disbarred. State of Nebraska ex rel...
NJ criminal defense lawyer indicted in connection with informant's murder
Posted on May 20, 2009A NJ criminal defense lawyer, Paul Bergrin, former federal prosecutor, is indicted for alleged role in killing of informant: A former federal prosecutor who became a high-powered criminal defense lawyer was charged today in connection with the slaying of an FBI informant...
Lawyer arrested at courthouse security
Posted on May 20, 2009A criminal defense lawyer in East Tennessee was jailed before court after an altercation with officers at courthouse security.
SCOTUS cert. grant: Wood v. Allen: IAC on failure to raise mental health condition in a capital case
Posted on May 19, 2009SCOTUS granted cert in Wood v. Allen, 08-9156, yesterday. SCOTUSWiki here (not complete at the time of posting here, but it will be fleshed out later). The issue: Whether the state court’s conclusion–-that during the sentencing phase of a capital case the defense attorney’s failure to present the defendant’s impaired mental functioning did not constitute ineffective counsel–-was based on an unreasonable determination of the facts and whether the circuit court erred in its application of the Antiterrorism and Effective Death Penalty Act (AEDPA) to the review of the state court decision...
"Fighting fire with fire," permitted by Gentile, results in a defense motion against former lawyer's comments
Posted on May 19, 2009"Fighting fire with fire," permissible press commentary by defense counsel under Gentile, Treatise § 12:8, has resulted in the defendant in a case, through later counsel, claiming the first lawyer prejudiced the client. See Boston.com's Court asked to block lawyer's actions / First 'Rockefeller' defender faulted: Lawyers for the man who calls himself Clark Rockefeller asked a judge yesterday to block jurors at his upcoming parental kidnapping trial from hearing evidence about statements made to reporters by his previous lawyer...
DC disbarment for not paying taxes
Posted on May 17, 2009A DC criminal defense lawyer was disbarred last week for dodging his taxes.
Miami PDs ordered to continue taking cases despite overwhelming caseloads
Posted on May 15, 2009The Take Away on PRI has a story about Miami Public Defenders being ordered to continue to take cases despite their overwhelming caseloads: A Caseload Crisis for Public Defenders.
GA: PD conflicts budget out of money
Posted on May 08, 2009Georgia public defense budget has run out of money, according to the AJC: In Georgia, lawyers abandoning the poor. Down into the story: In response, exasperated lawyers are asking to withdraw from cases, and judges are letting them do it. Making matters worse, no one is telling the council about these defendants who are now lawyerless, the council’s executive director, Mack Crawford, said...
?
Posted on May 07, 2009On the Arkansas Supreme Court's syllabus today: CR08-1485. Shequita L. Joiner v. State of Arkansas, from Columbia Circuit. Pro se motion to compel attorney to adhere to rules of professional conduct. Motion denied. See per curiam this date.
MI criminal defense lawyer charged with assaulting cop in courthouse
Posted on May 07, 2009A Michigan criminal defense lawyer was charged with misdemeanor assault for an altercation with a police officer in a courthouse, according to the Detroit Free Press, and the lawyer got eight stitches: "I'm confident that when the evidence comes out in court, it will demonstrate that Mr...
NJ criminal defense lawyer pleads to misdemeanor case in allegedly running client's call girl operation
Posted on May 05, 2009A criminal defense lawyer in New Jersey pled to a misdemeanor prostitution offense after being accused of taking over his client's prostitution business, allegedly linked to Spitzer's case. See ABAJournal.com: Lawyer Accused of Running Client’s Call Girl Ring Enters Misdemeanor Plea...
Kieffer did a sentencing CLE in 2007
Posted on April 30, 2009Howard Kieffer, convicted of impersonating in federal court a lawyer, did a sentencing CLE in Milwaukee in 2007 holding himself out as a lawyer, according to the blog of the Milwaukee Journal Sentinel. See ABA Journal's Catch Me If You Can.
FL: Sex for fees results in disbarment
Posted on April 30, 2009A criminal defense lawyer who had sex with a client and reduced the fee $200 each time she had sex with him was ordered disbarred in Florida today. The clients were vulnerable, and he was convicted of soliciting prostitution. In another case, he was also sanctioned for editing a video without telling an authenticating witness...
Laid off appellate lawyer commits suicide in D.C.
Posted on April 30, 2009Mark I. Levy, head of the Supreme Court and Appellate Advocacy section of Kilpatrick Stockton in Washington DC, committed an apparent suicide in his office after being laid off yesterday.
SCOTUS: Confession to CI in violation of the Sixth Amendment can be used to impeach
Posted on April 30, 2009When used to impeach an inconsistent statement, confessions obtained in violation of the Sixth Amendment undergo under a balancing test. The interests of truth finding and the role of the adversarial system outweigh the violation against the Sixth Amendment in this case...
WA: Client in coma from suicide attempt during trial could not assist in his own defense
Posted on April 30, 2009Client in a coma from a suicide attempt during trial was incapable of assisting in his defense, and mistrial was required. State v. Anene, 37374-2-II (Wash. App. April 28, 2009).
NACDL Misdemeanor Report: "Minor Crimes, Massive Waste
Posted on April 29, 2009NACDL's Misdemeanor Report, Minor Crimes, Massive Waste, was released at 1 pm Eastern. Coincidentally, while the report was being printed, Contra Costa Co. CA announced that their current budget required them to stop prosecuting misdemeanors to save $1...
MSP lawyer accused of stealing from firm
Posted on April 29, 2009A Minneapolis-St. Paul criminal defense lawyer was accused of stealing $124k from his own law firm.
WI: Lawyer's use of deceit to get information to aid client was not a violation of rules
Posted on April 29, 2009Through the ABA, I got a document to be or that was published in 25 Law. Man. Prof. Conduct 115 where the Wisconsin Supreme Court, in an unsigned opinion not on its website, held that a lawyer did not violate Rule 4.1 by using deceit to get access to evidence where the police and prosecutors do it all the time, there was no alternative means to get the information, and nobody but the prosecutor seemed to think that there was anything wrong with it, especially the other lawyers in the jurisdiction...
NYC NPR on qualify of public defense
Posted on April 28, 2009WNYC (NPR): Ailsa Chang, You Have the Right to an Attorney, But What About the Quality?
Richard J. ?Dick? Carstensen of Montana has died
Posted on April 26, 2009Richard J. ‘Dick’ Carstensen, a Montana criminal defense lawyer and former federal magistrate died at 80. A lifelong opponent of the death penalty, Dick was proud of being one of a group of appellate attorneys who secured permanent reversals of two Montana death sentences...
US Commonwealth ethics rules added
Posted on April 25, 2009The ethics rules to the U.S. Commonwealths have been added to the right margin: • Puerto Rico (English only) • Virgin Islands • Guam • Commonwealth of the Northern Marianna Islands Why you might ask? Because my ethics book is used there, and I've gotten calls from lawyers there, not just Puerto Rico and the Virgin Islands...
Criminal defense lawyer accused of structuring cash deposits
Posted on April 24, 2009A Raleigh NC criminal defense lawyer has been indicted for structuring cash deposits into deposits of less than $10,000, totaling more than $350,000 over two years, but seven counts.
www.InternetSleuth.net
Posted on April 24, 2009Internet Sleuth, a defense oriented investigation site, has been placed on the right margin. Check it out, and use it.
William Moffitt has died; NACDL Past President
Posted on April 24, 2009Bill Moffitt, NACDL's 41st President, died today. NACDL's press release: Past President William B. Moffitt (1949–2009) Washington, DC (April 24, 2009) – Past President William B. (Bill) Moffitt passed away this morning. He was 60 years old...
Nashville lawyer suspended for offering to take stolen property for a fee
Posted on April 23, 2009A Nashville criminal defense lawyer, arrested in the courthouse in March for a possession indictment, was subjected to an interim suspension for allegedly offering to accept stolen property as a fee.
OH8: No IAC where defendant pled guilty before motion to suppress
Posted on April 21, 2009Defendant who pled guilty before motion to suppress could have been filed cannot claim IAC against defense counsel. State v. Bishop, 2009 Ohio 1797, 2009 Ohio App. LEXIS 1519 (8th Dist. April 16, 2009).*
Chicago criminal defense lawyer convicted of smuggling drugs into jail
Posted on April 20, 2009Back on January 17th was this post: Criminal defense lawyer charged with smuggling marijuana into courthouse holding cells for cash. That lawyer has not even gone to trial. Another was convicted last week: Chicago Lawyer Convicted of Bringing Contraband into Jail: The drugs were being delivered with the help of a girlfriend of a jail inmate who put the drugs in tinfoil and hid them in large stacks of legal documents, prosecutors said...
Tax lawyer convicted of client's tax evaion gets 2 level enhancement
Posted on April 19, 2009A tax lawyer received a two level enhancement under U.S.S.G. § 3B1.3 for use of special skill or abuse of trust in a tax evasion case where the lawyer criminally evaded taxes for his tax client. United States v. Jewell, No. 4:07CR00103 JLH (E.D.Ark...
Kieffer convicted
Posted on April 16, 2009Minnesota Man Convicted Of Impersonating Lawyer from AP and Duluth man convicted of impersonating lawyer.
OR: Defendant was advised of risk of deportation, so no IAC
Posted on April 15, 2009An illegal alien could not show ineffective assistance because his lawyer did tell him that deportation was a risk of conviction, and he should expect it. Guzman v. State, A132817 (Ore. App. April 8, 2009) (per curiam)*: Taken as a whole, the advice given petitioner alerted him that he could be deported and did not mislead him as to the probability of that outcome...
Kieffer trial begins in Bismarck
Posted on April 15, 2009The trial of Howard Kieffer began in Bismarck yesterday. See Jury Chosen In Trial Of Alleged Phony Lawyer: Howard O. Kieffer never attended law school, a federal prosecutor says. But three attorneys testified Tuesday that they thought Kieffer was a lawyer because of his expertise in federal court matters and because they saw him at attorney training seminars.
Missing Philly lawyer arrested in VA
Posted on April 14, 2009More on Philly's peripatetic defendant criminal defense lawyer who was a no show in court for his own case: He was arrested outside a hotel in Arlington, Virginia after denying he was the person in the wanted flier with his picture. My previous post is here...
Cook Co. PD seeks to strike DP allegation for lack of funds
Posted on April 13, 2009On Yahoo! news: Cook County PD asks judge to strike DP because it can't afford to defend the case: Public defender pleads broke in death penalty case because former Governor Rod Blagojevich, as in United States v. ..., vetoed the appropriation. The insensitivity of Chicago politics and the politics of death...
More Stevens articles
Posted on April 13, 2009The Stevens case: The gift that keeps on giving. One article today and one that came to my attention today: Law.com's Attorney General Weathers Stevens Fallout -- for Now and Politico.com's Fed judges are fed up.
"[O]ften competitive enterprise of ferreting out crime"
Posted on April 12, 2009Remember Justice Jackson's reference to the "often competitive enterprise of ferreting out crime", Johnson v. United States, 333 U.S. 10, 14 (1948)? See Shortfalls Unraveled Stevens's Conviction in today's Washington Post: Former department attorneys, for example, cited chronic problems that have plagued the unit: competition and confusion with partner prosecutors in U...
S.D.Fla.: $601k Hyde Amendment sanction against government
Posted on April 10, 2009Back in March, I had this post about the government listening to lawyer telephone calls trying to trap the lawyer, to no avail. Yesterday, a federal judge in Miami issued a Hyde Amendment order sanctioning the government $601,000 in the case. See Feds Ordered to Pay More Than $600K in Legal Fees for Misconduct in Fla...
AR: Failure to deliver file on withdrawal justified discipline
Posted on April 10, 2009Arkansas decides a discipline appeal for violation of Rule 1.16 for not delivering the file to the client on withdrawal where the lawyer relied on "office policy." While there are two possible outcomes, entire file or the file without work product, the client got neither, so the disciplinary was affirmed...
NY caps PD caseloads in NYC
Posted on April 06, 2009New York State's budget has capped caseloads for public defenders, but only in NYC. See Sunday's NYTimes.
Defendant lawyer a no show in his own case
Posted on April 02, 2009A criminal defense lawyer on house arrest in his own case in Philadelphia was a no show in his own case: Lawyer facing drug counts again is a no-show in court.
Husband of Baton Rouge murdered lawyer held
Posted on March 28, 2009On February 20th is this post: Baton Rouge criminal defense lawyer murdered. CNN.com reports today that her husband was arrested as a suspect. Lawyer stabbed 38 times; husband held. The defense lawyer says the police have the wrong man, and the husband was fully cooperative.
Withdrawal for non-payment of fees--instruction from a civil case
Posted on March 26, 2009On withdraw in a civil case for nonpayment of fees see Brandon v. Blech, 08-5355 (6th Cir. March 24, 2009). While it is not binding in criminal cases, it is instructive that Model Rule 1.16 should control be the starting point for analysis.
The emptiness of legal scholarhship?
Posted on March 26, 2009On emptiness of legal scholarship today is this interesting article by Pierre Schlag, Spam Jurisprudence, Air Law, and the Rank Anxiety of Nothing Happening (A Report on the State of the Art), 97 Georgetown L.J. 803 (2009).
ABAJournal.com on Howard Kieffer
Posted on March 25, 2009The strange case of Howard Kieffer made the April ABA Journal, online today: Catch Me If You Can, by Stephanie Ward. Prior Kieffer posts in 2008 here are: Non-lawyer holding self out as lawyer? and Denver Post: "Faux lawyer confesses he's a sham".
Britney Spears pays $26k for defense of driving without a license case
Posted on March 24, 2009What does a Florida driving without a license trial cost for defense counsel? In Britney Spears' case, $26,000.
AR: Appellate counsel determines the issues, not the client
Posted on March 24, 2009In an Arkansas death case on post-conviction, the inmate sought to force his attorneys off the case because they did not meet with him and would not argue the issues he thought important. That is not his right. Lee v. State, CR08-160 (Ark. March 19, 2009): We noted in our decision on appellant’s previous pro se motion that, at this stage in the proceedings, the issues raised in appellant’s pro se pleadings are merely an attempt to substitute appellant’s own judgment for that of his attorneys and compete with appointed counsel to be heard...
IL: Trial judge cannot bar a public defender from court
Posted on March 20, 2009A trial judge has no authority to order an assistant public defender out of his courtroom. In this case, the judge has some personal disagreements with the APD and refused to recognize her as an advocate in his courtroom. Burnette v. Terrell, 106678 (Ill...
You never know who is listening to your telephone calls
Posted on March 19, 2009Federal prosecutors in Miami attempted to get a criminal defense lawyer to fall for witness bribery in a secretly recorded telephone call. See US prosecutors accused of misconduct in case: U.S. Attorney R. Alexander Acosta on Wednesday called the situation "regrettable" and said the allegations have been referred to the U...
Cross-examination better than sex
Posted on March 18, 2009Yesterday morning I had a witness in an ugly trial who admitted on direct as a government witness to testifying differently in the case case before. She did not mention on direct for the government that it was 80 pages worth of testimony in two hearings (detention and suppression) going to the heart of the case, and which thus came in as substantive evidence under F...
CA2: Defendant's own lies to defense counsel led to his trial, not defense counsel
Posted on March 14, 2009Defendant’s lies about the quality of the defense and the facts to defense counsel that led defense counsel to determine that defendant should not enter a plea agreement with the government and go to trial was essentially decided in the prior appeal and showed that defense counsel was not ineffective because of defendant’s own actions...
CT: Expert testimony usually required in malpractice cases
Posted on March 13, 2009Statute of limitations for a sentencing error of a criminal defense lawyer runs from the sentencing, and here was time barred. Moreover, expert testimony is normally required in criminal defense malpractice. Pagan v. Gonzalez, AC 28841 (Conn. March 17, 2009): The exception to the need for expert testimony is limited to situations in which the defendant attorney essentially has done nothing whatsoever to represent his or her client’s interests, resulting in such "an obvious and gross want of care and skill that the neglect would be clear even to a layperson...
Defense lawyer's scuffle with off-duty officer in court results in hospitalization
Posted on March 12, 2009A criminal defense lawyer got into a scuffle in court with an off-duty police officer in Michigan, and he was hospitalized. Detroit Free Press: Court fight lands Macomb County lawyer in ER / Officials silent about alleged clash with cop: Court officials wouldn't comment on the incident Tuesday afternoon, citing the ongoing police investigation...
GA: Indigent defense budgetary concerns do not obviate state's duty to pay conflict defenders
Posted on March 11, 2009Lawyers appointed to represent an indigent accused as conflict defenders were not paid under the trial court's order. The state contended the county should pay. The State's funding problems and budgetary concerns do not obviate that the lawyers be paid...
Lawyer's impatience as juror leads to bar complaint
Posted on March 10, 2009On March 5th is this post: Criminal defense lawyer's actions as special judge lead to license surrender. In California, a lawyer is under bar investigation for his actions as a juror. See Lawyer’s Impatience as a Juror Could Lead to Disbarment.
Criminal defense lawyer's actions as special judge lead to license surrender
Posted on March 05, 2009Article: The Role of Trial Counsel in Ineffective Assistance of Counsel Claims: Three Questions to Keep in Mind
Posted on March 03, 2009OK: Personal and financial relationship with client justified disqualification
Posted on March 01, 2009SC: False expense billing results in 9 month suspension
Posted on February 24, 2009False billing of expenses to a client resulted in a nine month suspension in South Carolina for misrepresentation and fraud. In re Gray, 26602 (S.C. February 17, 2009).
Rule 1.10 amended by the ABA
Posted on February 22, 2009At the Winter ABA meeting in Boston, the House of Delegates adopted a revised Rule 1.10, a rule change that was long debated. This rule permits the screening of a lawyer who moves laterally from one private law firm to another, so that conflicts of interest that apply to the moving lawyer under Model Rule 1...
TX3: Assaulting lawyer during trial not necessarily ineffective assistance
Posted on February 21, 2009Defendant cannot assault his lawyer during trial and then necessarily successfully contend the lawyer was ineffective. The lawyer's actions showed that he was being effective. Berry v. State, 03-08-00031-CR (Tex. App.--Austin February 4, 2009): In his second issue on appeal, Berry argues that he was denied the effective assistance of counsel during the punishment phase because a conflict of interest arose when the State presented evidence of Berry's assault on counsel...
Massachusetts court funding leads to postponing criminal trials, too
Posted on February 20, 2009Even criminal trials are being postposed in Massachuetts due to state budget cuts from lack of courtroom security. See Trial Court seeks to restore funds.
Criminal defense lawyer informing drug dealers of who snitches are
Posted on February 20, 2009An Austin TX area criminal defense lawyer was convicted of teaming up with drug dealers to tell them who were snitches. See Austin American-Statesman's Testimony: Defense lawyer teamed with drug dealers, posted Friday night: Noe Perez said he was skeptical when a woman who sold drugs for him brought then-Austin criminal defense lawyer Bruce Garrison to a South Austin motel room in 2006...
Baton Rouge criminal defense lawyer murdered
Posted on February 20, 2009Baton Rouge criminal defense attorney Chiquita Patrece Tate was found murdered in her downtown office at 6 a.m. Friday morning. Baton Rouge attorney found dead in her office. She had not come home from work that night before. She was at work preparing for a jury trial starting Monday.
Client suicide
Posted on February 18, 2009I lost an appeal of a Fourth Amendment issue in a federal appeals court about three months ago. I filed a motion for bail pending a writ of cert which was denied on February 8th. He was to surrender February 16th at Texarkana FCI. Pretrial services called today to say that he had not surrendered as scheduled...
CO moves to suspend lawyer CI
Posted on February 04, 2009The State of Colorado has moved to suspend Francis M. Pignatelli, previously discussed here on Jan. 26. Today's Office of Attorney Regulation press release: DENVER – The Colorado Supreme Court Office of Attorney Regulation today announced that it has filed a petition to immediately suspend Colorado lawyer Francis (Frank) M...
Remember when the police mistreated you in college?
Posted on January 31, 2009How a young person's interaction with the police creates career choices. See the Philadephia Inquirer's article today of my friend Bill Buckman: Lawyer who took on profiling at it again.
Stanford law grad pleads to tax evasion on prostitution income
Posted on January 28, 2009A Stanford law grad was convicted of tax evasion for prostitution to pay for student loans. See LATimes.com Tuesday: Stanford law graduate who allegedly was a call girl pleads guilty to tax evasion / Cristina Warthen once boasted that she paid off student loans by working as an escort, a search warrant affidavit says...
ABAJ.com: Defendant Gets New Lawyer and Trial After Smearing Feces on PD
Posted on January 27, 2009On ABAJournal.com is this disconcerting story: Defendant Gets New Lawyer and Trial After Smearing Feces on PD. It's a felony to do that in jail in most states, but apparently not in court. I just might, however, be a contempt of court.
SCOTUS cert. grant: Appealability of order of production on a claim of attorney-client privilege
Posted on January 27, 2009SCOTUS cert grant, from Willamette School of Law: Mohawk Industries, Inc. v. Carpenter Certiorari granted: 1/26/09 No. 08-678 Court Below: 541 F.3d 1048 (11th Cir. 2008) ATTORNEY-CLIENT PRIVILEGE (Whether a party can immediately appeal a lower court’s decision compelling the production of privileged documents based on a finding of waiver of the attorney-client privilege) Carpenter (Respondent), an employee of Mohawk Industries, Inc...
Brady at large in the D.Mass.
Posted on January 27, 2009From the NLJ's web version today: Federal judge considers sanctions for Boston U.S. attorney's office. The court is considering sanctions for a Brady violation. We say Brady, they say "it wasn't exonerating." Brady to us means the entire Brady doctrine from Brady to Kyles, with all the permutations...
Criminal defense lawyer worked as CI against clients
Posted on January 26, 2009A lawyer from Ohio, now reportedly practicing in Denver, has been working as a governing informant for the last three years, resulting in the arrest of several clients and seizure of drugs and cash. Attorney stings 30 defendants / Authorities credit work by informant; latest drug suspect gets 15 years in prison: A high-stakes Akron drug dealer has become the latest suspect stung by an attorney who became an informant for federal agents...
Saying too much on exiting a case?
Posted on January 24, 2009Governor Rob Blagojevich's lead criminal defense lawyer exited Friday: Blagojevich plans to take his public relations campaign national on Monday with back-to-back appearances on ABC's morning shows "Good Morning America" and " The View," followed by an evening stint on CNN's "Larry King Live...
NY2: Lawyers should not be prosecuted for good faith legal advice
Posted on January 19, 2009A lawyer should not, indeed, cannot, be prosecuted for giving good faith legal advice. Here, the lawyer advised a job action by nurses that led to all their prosecution for abandoning patients. "It is an assault on the adversarial system of justice upon which our society ...
Peter E. Fleming, Jr. has died
Posted on January 18, 2009Peter E. Fleming, Jr., former Attorney General John Mitchell's criminal defense lawyer, died in NYC: A People magazine profile of him during the Mitchell trial described how, “while interrogating former Securities and Exchange Commission Chairman G...
"A Death Penalty Colloquium: the Past, Present, and Future of the Death Penalty"
Posted on January 17, 2009The University of Tennessee Law School at Knoxville, with the Tennessee Law Review, is presenting on February 6-7, A Death Penalty Colloquium: the Past, Present, and Future of the Death Penalty. The speaker lineup includes nationally known experts, such as Dwight Aarons, David Baldus, Hugo Adam Bedau, Steve Bright, Deborah Denno, Lyn Entzeroth, the Honorable Gilbert S...
Criminal defense lawyer accused of cocaine possession during client's trial
Posted on January 17, 2009A Minnesota criminal defense lawyer was charged with possession of cocaine during his client's trial after a police officer noticed he was acting suspicious coming out of the bathroom. See Attorney charged with cocaine possession.
Criminal defense lawyer charged with smuggling marijuana into courthouse holding cells for cash
Posted on January 17, 2009A Chicago criminal defense lawyer, age 60, was arrested in the Cook County Courthouse for smuggling marijuana into the holding cells of the courthouse for detainees for $250. The Sheriff arranged a buy with jailers acting as undercover officers. See Chicago attorney charged with smuggling marijuana to inmates in courtroom holding cells...
Creator of Rumbole of the Bailey dies
Posted on January 16, 2009John Mortimer, creator of Rumbole of the Bailey, has died.
LA: Exclusionary rule does not apply in bar disciplinary proceedings
Posted on January 14, 2009Exclusionary rule does not apply in bar disciplinary proceedings. In re Clark, 08-DB-034 (La. Atty. Disc. Bd. January 12, 2009).
". . . that justice shall be done"
Posted on January 13, 2009On the website of the Law Society of Upper Canada is this piece I stumbled upon: Justice Gary Trotter, Integrity and Honour in Criminal Litigation: Hollow Aspirations or Enforceable Standards? Compare Berger v. United States, 295 U.S. 78, 88 (1935) (reaffirmed in Kyles v...
ABAJ: "Despite Waivers, Calif. Defense Lawyer is Conflicted Out of Triple Murder Case"
Posted on January 12, 2009In the interest of full and unfettered cross-examination, a San Francisco Superior Court judge ordered a criminal defense lawyer off a triple homicide case, despite waivers from both the client on trial and a potential witness against him. See ABAJournal...
New links on sidebar
Posted on January 11, 2009JD Supra where one can download and upload sample documents The Georgetown Journal on Legal Ethics Also, the three articles and blog posts mentioned in the last post have been added.
New law review articles
Posted on January 11, 2009Monroe H. Freedman, Getting Honest About Client Perjury, 21 Geo. J. Legal Ethics 133 (2008) Michael Bonsignore, Rules Exist For a Reason: A Commentary on Lawyers Hiring Investigators to Partake in Deceptive Tactics, 21 Geo. J. Legal Ethics 655 (2008) Lauren Gil, Facing Justice: Ethical Choices in Representing Immigrant Clients, 20 Geo...
Criminal defense lawyer accused of money laundering for returning fee to theft client
Posted on January 10, 2009A criminal defense lawyer has been accused of money laundering in California for taking fees from a client and then reimbursing them. The defense is she had no idea where the money came from. The client is accused of trafficking in stolen computer equipment...
Defending People: "Advice to a Young Criminal Trial Lawyer " reposted
Posted on January 10, 2009Advice to a Young Criminal Trial Lawyer has been reposted on Defending People.
MD considers whether a lawyer is required at an initial appearance where bail is set
Posted on January 09, 2009Oral argument is today in a case against the State of Maryland to require that all suspects have counsel at their initial appearance where bail is set. WaPo: Suit Seeks Early Counsel for Defendants / Md. High Court to Weigh Representation at Initial Hearings: The hearing in a Baltimore jail went forward without a lawyer for the defendant, just as it would have for almost any other defendant arrested in Maryland, and Singleton was ordered held on $10,000 bail...
TX: Murder 1 is a disbarment offense
Posted on January 08, 2009Texas disbarred a lawyer for a murder one conviction, and life imprisonment, in Virginia. See Legal Profession Blog.
When a lawyer is assisting at trial, check on whether that lawyer thinks he or she is going to be paid
Posted on January 08, 2009In Baltimore is a trial between two law firms over one assisting another in the defense of an investment fraud. See Defense Attorneys Square Off in Fee Dispute from the American Lawyer on Law.com. At issue is $200,000 and whether the law firm or the client agreed to pay...
AR: One of four defense lawyers sleeping during trial not IAC
Posted on January 08, 2009One of four defense counsel apparently napping during voir dire in a capital case (where life was imposed) was not ineffective assistance of counsel. Jackson v. State, CR07-1016 (Ark. January 8, 2009). How this arose: In his third point on appeal, Jackson argues that the circuit court should have granted his motion for mistrial, made during voir dire, in response to the alleged ineffectiveness of one of his four attorneys...
Forbes: "Kill the Billable Hour"
Posted on January 07, 2009In the most recent Forbes, just posted online, is Kill the Billable Hour / Lawyers should bill the way Joe the Contractor does by Evan R. Chesler: I'm a trial lawyer. I bill by the hour. So do the associates who work for me. I have lots of clients, so I can pretty much work, and bill, as much as I want...
State court link added to right margin
Posted on January 07, 2009The LII link to state court opinions has been added to the right margin. Therefore, you can use this website as a portal to link to state court ethics rules and state court websites.
Jax Public Defender has "induction party" through by FOP
Posted on January 07, 2009When the elected Public Defender getting sworn in has a party thrown for him by the Fraternal Order of Police, something is seriously wrong with the Public Defender's Office. See Jacksonville.com. The Jacksonville Fraternal Order of Police, which supported Shirk in the November election, threw an induction party for him Tuesday night...
ABAJ.com: "Fla. Prosecutor?s Office Disqualified for Listening to Lawyer Phone Calls"
Posted on January 06, 2009From ABAJournal.com, posted 10 minutes ago: Fla. Prosecutor’s Office Disqualified for Listening to Lawyer Phone Calls, linking to the Miami Herald: A Florida judge has disqualified the entire Broward State Attorney's Office from trying a murder case, after learning that two prosecutors had listened to recordings of the jailed defendant's phone calls to his attorney...
NY1: Internet sex sting justifies 3 year suspension
Posted on January 05, 2009A lawyer was ordered suspended by N.Y.'s First Department for three years for arranging for sex with a 13 year old fictitious girl. The dissenters thought the lawyer should be disbarred. Matter of Lever, 2008 NY Slip Op 10230 (1st Dept. Dec. 30, 2008)...
LA: Bank robbery is a disbarment offense
Posted on January 05, 2009Louisiana disciplinary authorities have concluded that bank robbery by a lawyer is a disbarment offense. The lawyer "did not appear" for the oral argument for the disciplinary appeal, still at the administrative level [apparently because he's in prison?]...
Bailiff under investigation for fixing cases was loaned money by defense lawyers
Posted on January 04, 2009A bailiff is accused of postponing cases with a view toward fixing them, alleged to having been paid by defendants. But, it also seems that defense lawyers loaned him money, and they are being questioned, too. See today's Cincinnati Enquirer: Bribery probe snares bailiff.
Treatise cited in 156 U.Pa.L.Rev. 1117
Posted on January 04, 2009§ 15:10 on plea bargain for the innocent in the treatise was cited in Josh Bowers, Punishing the Innocent, 156 U.Pa. L. Rev. 1117, 1159 n. 214, 1167 n. 254 ("(noting that defense attorneys have professional discretion to pursue or forgo Alford pleas)"), 1172 n...
NYT: Man held 8 months without counsel in DP case sues Georgia to get a lawyer
Posted on January 03, 2009A Georgia man in jail for eight months without counsel in a death penalty case sued the State of Georgia for representation. See NYTimes Friday: Long Held in Capital Case, Man Sues to Get a Lawyer: A man awaiting trial in a Georgia prison has spent the last eight months without a lawyer while prosecutors prepare a death penalty case against him, a lawsuit brought on his behalf says...
OH11: Brian Jones contempt case reversed
Posted on January 02, 2009Where the public defender was appointed the day before trial and requested a continuance to prepare, it was an abuse of discretion to deny a continuance and hold defense counsel in contempt for not proceeding to trial where he would have been ineffective per se...
NY2: False statements in court and on website results in discipline
Posted on January 02, 2009False representations in court about alleged evidence and false statements on a web site about the case in its portrayal of the trial judge's findings justified discipline. The lawyer received a five year suspension because he also had trust account failures indicating conversion of funds...
OH: Neglecting appeal results in suspension for six months
Posted on December 30, 2008Neglecting two appeals in the Sixth Circuit resulted in a six month suspension in Ohio. One had seven extensions, no appendix was filed, and counsel failed to show for oral argument. Columbus Bar Assn. v. Dice, 2008-Ohio-6787 (December 30, 2008).
Working Christmas Day?
Posted on December 26, 20081200 visits on Christmas Day at FourthAmendment.com. Who in their right mind is working that day? Well, I was posting that day. Criminal defense lawyers sometimes never get days off, short of vacation.
"Mid-Career Female Attorneys in Crisis?"
Posted on December 23, 2008As for personal-professional balance, a new book on woman lawyers by Kathy Caprino, “Breakdown, Breakthrough: The Professional Woman’s Guide to Claiming a Life of Passion, Power and Purpose." See the review at ABAJournal.com, By Rachel M...
SC: private capital defender fees suspended Jan. 1
Posted on December 23, 2008The South Carolina Commission Indigent Defense has suspended fees for private defenders (not public defenders) in capital cases effective January 1st until further notice. SCCID Press Release Dec. 19, 2008.
Kuehne conspiracy charge dismissed by court; case in shambles
Posted on December 22, 2008A federal judge in Miami today threw out the conspiracy charge against Ben Kuehne. See Miami-Herald's breaking news: Judge strikes key charge against Miami lawyer Kuehne: A federal judge in Miami on Monday threw out the central conspiracy charge against prominent South Florida lawyer Ben Kuehne, who faces trial next month on charges of laundering drug-trafficking profits for legal fees...
Best lawyer obit
Posted on December 22, 2008Doug Tinker, RIP November 10, 2008. News story of his death here. (From one of my list servs.)
WA: Availability and fixed fee retainers permissible
Posted on December 20, 2008Washington adopts availability retainers and fixed fees paid in advance may be considered earned on receipt if the client agrees in writing effective November 18, 2008. See post here.
NY adopts Model Rules of Professional Conduct effective April 1, 2009
Posted on December 20, 2008New York [finally] adopts the Rules of Professional Conduct effective April 1, 2009. The Rules are here. I haven't read the rules or found a summary yet. If somebody has a link to a comparison, please provide it. I'm licensed in New York, and they haven't informed me of the rule yet, but they have three months to do it in...
SC: Failure to intereview witnesses IAC
Posted on December 16, 2008Failing to interview and subpoena defense witnesses was IAC. Defense counsel wasn't called as a witness at the hearing. The witnesses would have corroborated defendant's version of the events. Lounds v. State, 26571 (S.C. December 15, 2008): At the PCR hearing, petitioner testified that Newell had not done anything to investigate his case...
Cal.: Stein-like coercion not a waiver of A-C privilege
Posted on December 11, 2008Providing records to DoJ under coercion to avoid corporate prosecution is not a waiver of attorney-client privilege (following Stein). Regents of the University of California v. Superior Court, 165 Cal.App.4th 672, 81 Cal.Rptr.3d 186 (2008): Turning to the circumstances presented here, we agree with the trial court that the disclosures the defendants made to the government agencies did not waive their attorney-client and attorney work product privileges...
NYT: NY suspending jury trial for a month in '09
Posted on December 09, 2008NYT: NH to suspend jury trials for a month in early 2009 to save money: Jury Trials to Be Halted in One State Feeling Pinch. "The clerks of court in New Hampshire’s largest counties, Hillsborough and Rockingham, said they were rescheduling 179 criminal and civil trials planned for February or March...
MA: Lawyer charged for holding self out as DAs victim/witness advocate and telling witnesses to not show in court
Posted on December 09, 2008A defense lawyer in Massachusetts has been charged with three counts of witness intimidation and disruption of the court for calling prosecution witnesses while holding himself out as the DAs victim/witness advocate and telling them not to show up in his clients' cases...
NYT: NH suspending jury trials for a month in '09
Posted on December 09, 2008NYT: NH to suspend jury trials for a month in early 2009 to save money: Jury Trials to Be Halted in One State Feeling Pinch. "The clerks of court in New Hampshire’s largest counties, Hillsborough and Rockingham, said they were rescheduling 179 criminal and civil trials planned for February or March...
Using F-word in presence of court can get you contempt
Posted on December 08, 2008Calling opposing counsel "a fucking liar" as one is leaving court, in the presence of the court, is contempt and resulted in a six month sentence in Cincinnati. In that case, however, the lawyer was representing himself in a suit against a condo association...
SC: Firing three lawyers and going pro se justified denial of eve of trial request for counsel
Posted on December 03, 2008Defendant fired three lawyers and made an unequivocal waiver of counsel: "I don't want counsel. I want to represent myself. I deny counsel. I waive counsel right now because there is problems [sic] right now. ... I don't want a standby counsel. I want to represent myself and control my own fate and destiny...
Judge: Kuehne indictment "disturbing"
Posted on December 02, 2008From today's Miami Herald, by Jay Weaver: Judge in Ben Kuehne case calls charge 'disturbing' / A judge cast doubt about the main money-laundering conspiracy charge in the Justice Department's case against prominent attorney Ben Kuehne: A Miami judge who rattled the Justice Department when she threw out the main charge in a major terrorism case could do it again in the prosecution of a prominent South Florida lawyer accused of laundering drug-trafficking profits for legal fees...
Interference with attorney's fees for defense not ground for habeas
Posted on December 01, 2008An AUSA's interference with a federal defendant's access to fees, justified by the Thompson memorandum, was insufficient to show get the defendant habeas relief or a COA for appeal. United States v. Olis, H-07-3295 (S.D. Tex. November 21, 2008). For further explanation, see the White Collar Blog...
NJ: PD telling judge bail decision was "outrageous" not contempt; it was a 'display of personal pique'
Posted on November 27, 2008A public defender's 'display of personal pique' in telling a judge his bail decision in the client's case was "outrageous" was not contempt. In re Harkov, A-0432-07T4 (App. Div. Nov. 14, 2008) (unpublished): Nevertheless, we do not believe that Harkov's conduct rose to the level of criminal contempt...
3 years imprisonment for lawyer wiretapping opponent
Posted on November 25, 2008A lawyer in a child support case was sentenced to three years in Los Angeles for wiretapping his opponent. See NLJ online today.
IN: ADA's listening to attorney-client jail calls did not violate Sixth Amendment where they knew they were being listened to and there was no prejudice
Posted on November 22, 2008The defendant was in jail on a murder charge, and the ADA listened to nine telephone conversations concerned that there might be an effort to intimidate witnesses with the lawyer. Nothing was found so no further phone conversations were listened to. When the defense discovered it during a sidebar conference in the murder trial, he claimed a breach of the attorney-client privilege and the Sixth Amendment...
ABA survey on the economy
Posted on November 18, 2008The ABA has an online survey on the economy, accessible here. Take the survey and tell them how bad or good you are doing in this economy. Since the ABA is headquartered in Chicago, as they say, "vote early and vote often." The results will be in the January ABA Journal.
Boston Herald: "Twice as much goes to defend suspects than to prosecute them"
Posted on November 18, 2008Today's Boston Herald, a story of incredible obtuseness: Twice as much goes to defend suspects than to prosecute them. The article does not even explore the fact that DAs have no overhead and private defense lawyers do, that DAs have all the support they need from the police and defense lawyers don't...
NY2: § 1001 conviction warrants disbarment
Posted on November 14, 2008A conviction for false statements under 18 U.S.C. § 1001 is equivalent to perjury and warrants disbarment. In the Matter of Port, 2008 NY Slip Op 08743 (2d Dept. November 12, 2008).
Criminal defense lawyer sanction in defamation action over his comments to press
Posted on November 14, 2008A Long Island criminal defense lawyer representing a person accused of embezzling from a law firm made certain allegations in the press about the victim which led to a defamation suit. He impleaded the lawyer for the plaintiff as a defendant, and was sanctioned $14,000 for doing it...
NH: Criminal defense malpractice does not always require actual innocence; here, motion for suspended sentence
Posted on November 13, 2008Criminal defense malpractice is not always based on actual innocence. Here, the lawyer's client stated a claim for relief based on negligently handling a motion for suspended sentence that did not challenge the underlying conviction. Hilaro v. Reardon, 2007-39 (N...
Utah complains of diminishing pool of competent capital defense lawyers
Posted on November 10, 2008Utah Supreme Court complains of the diminishing quality of capital defense lawyers, and it refuses to issue Rule 11 sanctions against he capital lawyers in the case. Archuleta v. Galetka, No. 20070228 (Utah November 7, 2008): IV. ADEQUACY OF COUNSEL IN CAPITAL CASES ¶17 While we accept the trial court’s conclusion that the attorney conduct at issue in this case did not rise to the level demanding a rule 11 sanction, we also agree with the trial court that much of what took place in regard to Archuleta’s second amended petition was unwarranted and unjustifiable under our rules and applicable law...
D.C. lawyer charged with money laundering
Posted on November 07, 2008A D.C. criminal defense lawyer was accused of money laundering with a dead client, according to ABAJournal.com
SC: Witness bribery requires disbarment
Posted on November 06, 2008A lawyer convicted of attempted witness bribery in a burglary case was disbarred in South Carolina. In the Matter of Yarborough (S.C. November 3, 2008).
New article: "Defense Perspectives on Law and Politics in International Criminal Trials"
Posted on October 28, 2008A new article on the role of defense counsel in international criminal tribunals: Jenia Iontcheva Turner, Defense Perspectives on Law and Politics in International Criminal Trials, 48 Va. J. Int'l L. 529 (2008), on SSRN. The Abstract: As international criminal trials become more prominent, a fundamental question persists about their purposes: Are the goals of international criminal trials primarily legal, similar to the objectives of domestic trials, or are they primarily political, such as helping communities heal and compiling an accurate record of the past? Courts and commentators often acknowledge both legal and political purposes of international criminal trials, but fail to prioritize among them...
Bank collapses white collar defense boom?
Posted on October 27, 2008On Bloomberg News, white collar Defense Lawyers See Bonanza From Lehman, Bear, Other Collapses.
Putting client's criminally derived property in trust account and being convicted of money laundering warranted disbarment
Posted on October 25, 2008A lawyer was disbarred for handling through his trust account what he learned was criminally derived, and taking fees from the money. He was convicted of money laundering in federal court for his handling of the funds. In re Cunningham, Ga. S08Y1963 (Oct...
Backdating computer files results in sanction
Posted on October 24, 2008Spoliation of evidence by uploading to a backdated computer resulted in summary default judgment in a civil case against the spoliator. Gutman v. Klien, 03CV1570 (E.D. N.Y. Oct. 15, 2008). The case has an interesting discussion of computer forensics in discovering the spoliation.
Most new law grads to have hard time finding work
Posted on October 24, 2008On ABAJournal.com this week: New Law Grads Urged to Have Backup Plans because it will be hard getting work.
NPR: "Everyone deserves a defense"
Posted on October 22, 2008On NPR on "This I believe": Everyone deserves a defense.
OH: Two year suspension for not doing post-conviction after taking fee
Posted on October 20, 2008A lawyer was suspended in Ohio for two years for taking fees in post-conviction matters and then not doing the work. Columbus Bar Assn. v. Ellis, 2008-Ohio-5278 (Oct. 16, 2008).
Law office mail bomb?
Posted on October 17, 2008There was a law office explosion in the Atlanta suburb of Dalton today. Maybe it was a bombing. The law firm handles PI and wrongful death cases. See Ch. 46 in Atlanta. Remember when mail bombs were sent?
"Bailout" and some lawyers
Posted on October 17, 2008When you are thinking about the bailout, rescue, or socialization of mortgage banking, consider this: Lawyers Hope Bailout Bill ‘a Full Employment Act’ for Law Firms.
"Is the Economy Making You Sick?"
Posted on October 15, 2008Dr. Sherri Bourg Carter, author of § 34:7, "Professional Burnout: An occupation hazard for lawyer," published Is the Economy Making You Sick? Probably More Than You Know, on HealthNewsDigest.com today.
White collar lawyers sued for fraud for fee overbilling
Posted on October 13, 2008Lawyers who billed $12M for a white collar case that should have taken $1M failed to get the fraud case against them dismissed, and it apparently will be going to trial. See Judge Allows Suit Claiming a Billing ‘Free for All’ by WilmerHale, on ABAJournal...
CT lawyer convicted of obtaining bribe money for a particular result in a drug case
Posted on October 13, 2008Lawyer who got a "charitable contribution" from the client to insure a suspended sentence in a drug case, but kept the money for himself, was convicted by a Connecticut jury of tampering and bribery. See ABAJournal.com, reporting on an article in the Hartford Courant.
Pleading full of typos gets fee cut by 75% in § 1983 case
Posted on October 08, 2008A sloppy pleading seeking attorney's fees after a civil rights jury vereict, full of typos and misquoting federal rules, resulted in a federal judge cutting the attorney's fees award that the pleading sought by about 75%. See Law.com. The pleading included a cut and paste from another document without correction of names...
Giving the finger to a judge is contempt
Posted on October 04, 2008Lawyer's conviction for giving the finger to a judge was affirmed. State v. Rogers, No. 26969 (Tenn. App. September 29, 2008): In this case, the facts are not essentially in dispute. The defendant reacted angrily to the Court’s proceeding with its recess by throwing his file...
Lawyers losing jobs
Posted on October 03, 2008ABAJournal.com: Legal Employment Down 15,600 Jobs Since ‘07.
"If you do something good, never
Posted on October 01, 2008"If you do something good, never do it for free." --Joker (spoken by Heath Ledger), The Dark Knight.
IA: Offer to destroy forged document and have client not cooperate in investigation warrants reprimand
Posted on September 16, 2008Attorney's offer to destroy a forged document and to make sure his client did not cooperate in a criminal investigation was publicly reprimanded. Iowa Supreme Court Attorney Disciplinary Board v. Buchanan, 08–0176 (Iowa September 12, 2008).
Ohio Brady violation: Six month suspension?
Posted on September 14, 2008Ohio is considering whether to suspend a former prosecutor's license for six months for a Brady violation. See Columbus Dispatch: Justices to rule on evidence sharing / Former assistant prosecutor could lose license over rape-case conduct: A former Logan County assistant prosecutor is fighting to keep her law license after the Ohio Supreme Court's disciplinary counsel determined that she withheld evidence from the defense in a rape case...
Client reveals her roll in '99 burial of murder victim, freeing lawyer of the secret
Posted on September 12, 2008On the ABA's website today is an article from the St. Petersburg Times, Secret of real estate agent's 1999 murder haunted lawyer by Chris Tisch. The article is about a client admitting her role in the disposal of a murder victim's body, and the lawyer having to keep the secret...
CO: Lesser included offense defense counsel's call
Posted on September 09, 2008The decision whether to request jury instructions on lesser offenses is a tactical decision that rested with defense counsel after consultation with the client. Arko v. People, 183 P.3d 555 (Colo. 2008).
Don't cite Wikipedia
Posted on September 05, 2008The Eighth Circuit reversed a BIA determination for relying on Wikipedia because the website is not authoritative of anything. Badasa v. Attorney General, 2008 U.S. App. LEXIS 18603 (8th Cir. August 28, 2008). We conclude that the case must be remanded for further proceedings, because the BIA failed adequately to explain its conclusion that Badasa did not establish her identity...
A lawyer involved in a conspiracy
Posted on September 04, 2008A lawyer involved in a conspiracy to promote a false identity to the court in a traffic case was suspended for 30 days with two years probation in California. The client had represented himself to be his passenger in the car who was a longtime friend...
NJLJ: Feds can review criminal defense lawyer's files with taint team
Posted on September 03, 2008In yesterday's New Jersey Law Journal: Federal Judge Rules Government Can Scour All of Lawyer's Seized Computer Records: A federal judge has given prosecutors the go-ahead to review computer records seized from the office of a criminal defense lawyer, even if it means looking at files of clients who were not targets of the search...
OH: Conflict in representing co-defendants in preliminary hearings
Posted on September 02, 2008The Ohio Board of Grievances and Discipline has issued Opinion 2008-04 on August 15, 2008 that public defenders should not represent co-defendants in a preliminary hearing, including another assistant public defender. From the Syllabus: Pursuant to Rule 1...
WaPo: Criminal defense lawyer on Labor Day
Posted on August 31, 2008Interview with a criminal defense lawyer for Labor Day in today's Washington Post: Mad About You / Having a Job That Ticks Off Everybody Isn't as Bad as You Might Think: It's Labor Day weekend, so we paused to think about work. Then we started thinking about people whose work attracts the suspicion, dismissal or loathing of the general public...
"Judge Won?t Sanction Prosecutor for Making PD Do Unnecessary Work"
Posted on August 30, 2008A public defender prepared for trial while the prosecutor was intending to drop the charge, without telling her. See ABA's Judge Won’t Sanction Prosecutor for Making PD Do Unnecessary Work. We've all done that, and there isn't much that can be done about it.
DoJ to adopt rule easing penalizing corporations for paying attorneys fees for employees
Posted on August 28, 2008Today the Department of Justice will ease its rules of penalizing companies for paying the attorneys fees of its employees. See today's NY Times: U.S. to Ease Pressure Tactic Over Legal Help for Employees. NACDL has worked on this, with others, for three years...
NJLJ: "Why Do Lawyers Lie? One Word: Narcissism"
Posted on August 22, 2008An interesting article by Arthur D. Burger, New Jersey Law Journal: Why Do Lawyers Lie? One Word: Narcissism: Ratner explains that extremely narcissistic people are so "needy for the affirmation of success," that the idea of losing is seen as unbearable...
More recession news for lawyers
Posted on August 21, 2008Law firm overhead continues to grown while revenue slumps, not just for criminal defense lawyers--all private practitioners. Demand for paid legal services is off. Dan DiPietro, Bumpy--and Slow--Ride for Law Firms Through 2008, on AmLawDaily: Since 2001, the legal industry has been characterized by double-digit profit growth, strong demand, solid productivity, and controlled expense growth...
LA: Kicking back fees to avoid firm's knowledge merits disbarment
Posted on August 19, 2008Lawyer's claim that he waived a fee to the client [here, a PI case] who was a friend and the client kicked back the fee to the lawyer to avoid it going through the firm's books resulted in a recommendation for disbarment. In re Sharp, La. Atty. Disc. Bd...
ABA: "50 Lawyers Pack Court to Support Solo Whose Office Was Searched"
Posted on August 12, 2008On ABAJournal.com today about the Collin County Texas law office search: 50 Lawyers Pack Court to Support Solo Whose Office Was Searched. My previous post from July 19th is here. The Texas Lawyer has this article: Controversy Over the Police Search of a Collin County Law Practice
Suspension for talking to another defendant in a murder case without lawyer present under Rule 4.2
Posted on August 11, 2008An attorney in Illinois was recommended to be suspended for 45 days for a violation of Rule 4.2 for talking to another lawyer's client where both clients were charged with the same murder. In re Norton, Commission No. 07 SH 37 (August 5, 2008). (Hat tip to Legal Profession Blog...
Two AUSAs under investigation for having represented person recorded
Posted on August 11, 2008Two AUSA's are under state and federal ethics investigation for directing a deputy sheriff to record a represented person, his former boss the Sheriff. See ABA's Two Prosecutors Face Ethics Probes for Secret Recording of Suspect.
"Prosecutors drove costs of Ga. capital case"
Posted on August 10, 2008The former judge on the Atlanta courthouse shooting case said Friday that the prosecution has driven up the cost of the defense of the case. AP: Judge: Prosecutors drove costs of Ga. capital case. Duh!
MD lawyers testify to dispel claims of witness tampering
Posted on August 09, 2008In two cases, Maryland lawyers have been ordered to testify to dispel claim by witnesses of tampering. Today's Baltimore Sun: 'Street justice' seeps into court strategy / Accusations link defense lawyers to defendants' culture: In two trials this week, Baltimore defense attorneys took the witness stand to defend themselves against allegations of witness tampering -- evidence, prosecutors say, of some attorneys' willingness to push the boundaries by playing into the city's "street justice" culture...
Federal DP case standby counsel denied withdrawal
Posted on August 08, 2008Standby defense counsel in a federal death penalty case ordered to stay on after their motion to withdraw denied. See AP: Judge tells Idaho killer's standby counsel to stay: Lawyers serving as standby counsel for a man who murdered a family to kidnap and sexually abuse two children asked to withdraw from the sentencing phase of his federal case on Wednesday, but the judge refused...
Criminal defense malpractice survives summary judgment; defendant acquitted on retrial
Posted on August 06, 2008Malpractice claim against criminal defense lawyers whose client was convicted in a first trial the verdict of which was overturned for IAC, and acquitted in a second trial on a weak circumstantial case survives summary judgment. See Legal Profession Blog...
Standards for Supplementary Guidelines for the Mitigation Function of Defense Teams In Death Penalty Cases
Posted on August 06, 2008Supplementary Guidelines for the Mitigation Function of Defense Teams In Death Penalty Cases have been published in 36 Hofstra L. Rev. 677 (2008).
Judge who bragged of affair with PD in that court disciplined
Posted on August 06, 2008A Washington municipal court judge who apparently bragged at a party about having an affair with a public defender in that court was disciplined by the state Commission on Judicial Conduct, according to the Seattle Times. According to a statement released by the judicial commission, Hartl's behavior at the holiday party she hosted and her participation in an intimate relationship with a lawyer who appeared before her as counsel failed to uphold the integrity and impartiality of the judiciary...
DA charged with sex with a witness
Posted on August 05, 2008A Massachusetts DA was charged with a courthouse sexual assault on a witness, according to the Boston Globe. Not just consensual sex, but assault. The former is bad enough.
VA may require malpractice insurance
Posted on July 29, 2008Virgina proposes a rule requiring mandatory malpractice insurance, according to a Virginia State Bar press release. The proposed rule is here.
E.D.Ark.: Facts of knock-and-announce violation not even reached under Hudson
Posted on July 29, 2008Facts of defendant's allegation of violation of knock-and-announce are not even reached because Hudson. United States v. Taggart, 2008 U.S. Dist. LEXIS 56425 (E.D. Ark. July 8, 2008).* Plaintiff's arrest on a child support civil commitment could not be the subject of a federal court suit because the order was facial valid...
No Strickland claim against standby counsel
Posted on July 28, 2008When defendant waives counsel and has standby counsel, it appears that he cannot pursue an ineffectiveness claim against standby counsel. Even assuming that he can, he fails to satisfy Strickland here. Gripper v. United States, 2008 U.S. Dist. LEXIS 55964 (D...
"Always assume that the client is recording you"
Posted on July 26, 2008I've been saying this publicly for over 20 years: § 1:1, Rule 5: Say nothing or do nothing that you would be afraid to read about in the newspaper or in a transcript or hear in a courtroom some day. . . . b. Always assume that the client is recording you...
Consent to search computer hard drive waived attorney-client privilege in contents
Posted on July 24, 2008Defendant corporation's voluntary disclosure of a computer hard drive by a consent search which it permitted the government to copy was a waiver of attorney-client privilege in the hard drive. United States v. General Maritime Management (Portugal) L...
News: TX criminal defense lawyer resists subpoena for papers in his office, so judge issues a search warrant for the lawyer's office
Posted on July 19, 2008In a move dangerous in both its Fourth and Sixth Amendment implications, a Collin County Texas district judge issued a search warrant for a criminal defense lawyer's office when the lawyer resisted a subpoena. The prosecutor apparently seeks to disqualify defense counsel from the case so he can testify as a witness...
Out of court comments about a judge protected speech?
Posted on July 17, 2008Does the First Amendment protect a criminal defense lawyer's popular blog that called a trial judge an "evil, unfair witch" and "seemingly mentally ill"? Such is the travails of a Broward County criminal defense lawyer, discussed on Law.com's Attorney Argues His 'Witch' Comments About Judge Are Protected Speech...
Lying to the Court
Posted on July 16, 2008New article: Fred Zacharias, Fitting Lying to the Court into the Central Moral Tradition of Lawyering, 58 Case West. L. Rev. ___ (2008).
NJ: Failure to cite unpublished authority contrary to position is not a violation of candor
Posted on July 16, 2008An attorney's failure to cite unpublished authority contrary to his position is not a violation of candor to the tribunal because it is not "controlling authority." The court was clearly troubled by this decision, however, but only to the extent is seems offended by the attorney not citing a case with no binding authority which it admits is the law...
NLJ: Failure to supervise a PI leads to lawyer's indictment?
Posted on July 15, 2008A lawyer in California was indicted with a PI for the PI's wiretapping in an investigation for the lawyer. See NLJ: Christensen Case a 'Wake-Up' Call for Lawyers on Use of Private Eyes: Regardless of what happens in the criminal case against Terry Christensen, the Los Angeles lawyer accused of paying celebrity sleuth Anthony Pellicano to illegally wiretap some of his opponents, many lawyers are thinking twice about the way they work with private investigators.
PD having to argue own ineffectiveness was a conflict
Posted on July 12, 2008Defendant moved to set aside his guilty plea for burglary which was to be concurrent to a federal sentence. After his plea, the USMS refused to take custody of the defendant, and that led to the motion to withdraw the plea. The motion of necessity involved a claim his public defender was ineffective...
Alleged overagressive handshake led to assault charge against defense lawyer; charge dropped
Posted on July 11, 2008Allegedly overagressive handshake with a federal prosecutor led to a defense lawyer being charged with assaulting a federal officer. The Sun-Sentinel.com reports that the government dropped the case. The handshake occurred after a hearing involving the defense lawyer's husband's federal probation...
Denver Post: "Faux lawyer confesses he's a sham"
Posted on July 10, 2008Update: The Denver Post reports today that Faux lawyer confesses he's a sham, stating that Howard O. Kieffer has admitted in a letter to the judge that he is not licensed to practice law. See the prior post of June 22 here: Non-lawyer holding self out as lawyer? (Hat tip to Lisa Wayne...
OH: Indefinite suspension for abandoning clients and failing to refund unearned fees
Posted on July 09, 2008An criminal defense lawyer was suspended indefinitely by the Ohio Supreme Court today for abandoning clients and failing to refund unearned fees or keep unearned fees in an identifiable trust account. Cincinnati Bar Assn. v. Lawson, 2008-Ohio-3340 (Ohio July 9, 2008)...
Client abducts lawyer at knifepoint during temporary release from jail
Posted on July 09, 2008A lawyer arranged for temporary release from a client from jail on a DV case to go to a social security disability hearing. While driving back to the jail, the client pulled a knife on the lawyer, bound his hands with his belt, and abducted him. Video here...
NY: "Premium fee" unenforceable
Posted on July 09, 2008NY's 1st Dept. holds an oral agreement for a $150,000 "premium fee" at the conclusion of the case, only contemplated in the fee agreement to the extent that one would be discussed at the close of the case, is unenforceable. Sheresky Aronson & Mayefsky, LLP v...
PDs resign murder case after 4 years in pay dispute
Posted on July 08, 2008Two Indiana Public Defenders resigned from a murder case, with the assent of the trial judge, for pay issues. See Herald Bulletin: Nearly four years after prosecutors brought murder charges against Rex David Delph, his longtime public defenders have withdrawn from the case, saying the county is unwilling to pay about $95,000 for their services and experts to testify at trial and further review evidence...
Taking over a criminal case from another defense lawyer, Miami-style
Posted on July 08, 2008In the Southern District of Florida blog is this post about how Miami lawyers handle withdrawal and assuming defense of a criminal case: Bill Barzee was headed into the FDC yesterday when he ran into Benson Weintraub on the way out. They ran into each other in front of the tower building...
ADA disbarred for fixing cases
Posted on July 07, 2008The Legal Profession Blog reports today that an assistant misdemeanor prosecutor was disbarred for fixing cases. No word on the defense lawyer mentioned who was doing it.
Chicago Sun-Times: 430 defendants incarcerated two years or more awaiting trial
Posted on July 07, 2008A story in the Chicago Sun-Times and a related paper mentions that a murder defendant has been awaiting trial in Cook County for six years, 36 more than five years, 430 more than two years. Cases get delayed for various reasons. Critics say both prosecutors and defense attorneys game the system, with prosecutors wanting time to find witnesses, and defense attorneys hoping evidence will fade...
Plagiarist named to D.D.C. by Bush
Posted on July 05, 2008On September 9th, there is this post about plagiarizing an article being an ethical violation. Yesterday, we see in the NY Times that a plagiarist has been nominated by President Bush to the D.C. District Court. Ironically, he worked on the toughest judicial nominees for the White House...
"America was neither founded, nor freed, by the well-behaved."
Posted on July 04, 2008—Semmes Luckett, a Clarksdale, Mississippi lawyer Today, read Thomas Paine's Common Sense, February 14, 1776, and then the Declaration of Independence. This is my July 4th ritual.
CA1: Client impliedly consented to telephone calls from jail to lawyer
Posted on July 01, 2008Telephone calls from client to lawyer resulted in the lawyer being charged with obstruction and money laundering in an allegedly corrupt effort to file false affidavits to lessing the clients criminal history. Calls from the jail were subject to monitoring, and the client knew it...
Law Review article: Ethics (or lack thereof) of the Duke lacrosse case
Posted on June 30, 2008Robert Mosteller, The Duke Lacrosse Case, Innocence, and False Indentifications: A Fundamental Failure to "Do Justice," 76 Fordham L Rev. 1337 (2007).
Cert. grant: Recommendation to withdraw insanity plea (only defense) was ineffective assistance
Posted on June 27, 2008Cert grant today: Knowles v. Mirzayance, 07-1315. Short form of the issue from SCOTUSBlog: Whether the defendant’s lawyer’s recommendation to withdraw an insanity plea constituted ineffective assistance of counsel for purposes of federal habeas law...
Lawyer and murder defendant client assaulted by spectator
Posted on June 26, 2008Newsday reports that a lawyer (who happens to be a friend of mine) was assaulted in court along with his murder defendant client by a spectator in Nassau County, N.Y. Well, Newday doesn't report that the lawyer was attacked. ABAJournal does.
Convicted lawyer who obtained post-conviction relief reducing crimes to misdemeanors denied reinstatement
Posted on June 25, 2008A lawyer disbarred as a result of a felony stalking conviction involving his obsession with his legal secretary had the underlying conviction reduced to a misdemeanor in post-conviction proceedings. His request for reinstatement was denied on the merits of the misconduct, not whether it was a felony...
SCOTUS: Right to counsel attaches at the first appearance
Posted on June 23, 2008SCOTUS today: Right to counsel attaches at the first appearance, and the right is clearly established. Rothgery v. Gillespie County, 07-440, 2008 WL 2484864 (U.S. June 23, 2008). From the Court's Syllabus: Texas police relied on erroneous information that petitioner Rothgery had a previous felony conviction to arrest him as a felon in possession of a firearm...
ADA "threw" case to aid innocent defendant he was ordered to prosecute
Posted on June 23, 2008NY Times today: Doubting Case, a Prosecutor Helped the Defense, about an ADA who spent two years re-investigating a murder case concluding that the defendant did not commit the crime. Because he was ordered to prosecute the case anyway, he admits to throwing the case in the interest of justice...
Non-lawyer holding self out as lawyer?
Posted on June 22, 2008Yesterday's Denver Post: Evidence against "attorney" / Records show a frequent counsel is a felon with no U.S. license, by Felisa Cardona. The article discusses a federal case tried in Colorado which the former lawyer defended. [Some dispute whether he ever was a lawyer in the first place...
Arbitrary denial of continuance for defense counsel warranted habeas relief
Posted on June 20, 2008Trial court's denial of a continuance for substitution of counsel for a one day trial was arbitrary and error and justified habeas relief [even under AEDPA's high standard]. Carlson v. Jess, 526 F.3d 1018, 1025-26 (7th Cir. 2008): First, we examine whether the trial court's denial of Carlson's motion for substitution of counsel and a continuance was arbitrary...
SCOTUS: Mentally ill lose right to self-representation
Posted on June 19, 2008SCOTUS holds that a mentally ill defendant could be prevented from representing himself under Faretta even though he was competent to stand trial. Indiana v. Edwards, 07-208 (June 18, 2008).
Hood finally gets a last minute "stay"; at least he wasn't executed
Posted on June 18, 2008Charles Hood finally got a stay at the last minute, but the Nine Horsemen of the Apocalypse overturned it, but the execution still did not take place. After legal wrangle, state halts execution by Steven Kreytak: In a Texas case closely watched by legal ethicists, Charles Dean Hood was spared execution late Tuesday night because legal appeals delayed the execution until the midnight deadline...
Hood stay denied by Texas Court of Criminal Appeals
Posted on June 17, 2008It is reported on the Legal Profession Blog this afternoon that the Texas Court of Criminal Appeals, the Nine Horseman of the Apocalypse, has refused to stay the execution of Charles Hood for tonight despite allegaions that the Prosecutor secretly dated judge in death penalty case?.
Money back guarantee?
Posted on June 16, 2008A Florida traffic case defense firm's 100% money back guarantee advertisements questioned by clients and apparently judges. See East coast law firm’s 100 percent ‘not guilty’ guarantee questioned by Aisling Swift.
Ninth Circuit affirms reversal of death sentence for IAC in penalty phase
Posted on June 15, 2008Defense counsel was ineffective for failing to adequately prepare a penalty phase where the client was sentenced to death. Both the called witnesses and the defendant were unprepared to testify in any meaningful way, and there was a mitigation case to be made...
Prosecutor secretly dated judge in death penalty case?
Posted on June 14, 2008An article yesterday on ABAJournal.com links to this article: Judge, prosecutor secretly dated, appeal says / Death row inmate set for execution Tuesday says he didn't get impartial trial by Chuck Lindell. According to the article below the following quote, defense attorneys in the original appeal tried to confirm it...
Appeal reinstated on payment of sanction for lawyer delay
Posted on June 14, 2008Appeal dismissed for failure to prosecute after several extensions and a final deadline would be reinstated if the lawyer paid a $5,000 sanction, half to the court and half to the client. Gross v. Town of Cicero, Illinois, 06-4042 (7th Cir. June 6, 2008)...
AP: "Defense attorney battling for alleged al-Qaida terrorist"
Posted on June 13, 2008AP has an interesting story entitled "Defense attorney battling for alleged al-Qaida terrorist" which shows the fine tradition of military defense lawyers in representing even alleged war criminals.
Public defender crisis looming in some states
Posted on June 13, 2008On ABCNews.com today, Facing 'Crisis,' Public Defenders May Refuse Cases, by Scott Michels. Faced with what they call severe budget shortfalls, several public defender offices across the country say they may soon begin turning away thousands of poor criminal defendants...
Criminal defense lawyer's malpractice lawyer can copy client's files before turning them over
Posted on June 12, 2008The malpractice lawyer in a criminal defense legal malpractice case could copy the files of the suing client before turning them over to successor counsel in the client's habeas case. Anderson v. Gordon, Muir & Foley, LLP, AC 27984 (Conn. App. June 17, 2008).
Another lawyer punched by a client in court today
Posted on June 11, 2008Double murder defendant today punched his lawyer in the face as he was led into court for sentencing. See Courtroom mayhem: Double killer attacks his lawyer before sentencing in the Minneapolis-St. Paul Star Tribune.
Even if public defender could be sued under § 1983, setting aside the conviction first would be required
Posted on June 10, 2008Public defender could not be sued under § 1983, and, even if he could, setting aside the conviction first would be required. The claim against the criminal defense lawyer was also frivolous under PLRA. Bell v. Newton, 2008 WL 2329193 (S.D.Ala. June 4, 2008)...
Special prosecutor sought by lawyers subject to sanctions in
Posted on June 10, 2008Civil lawyers the target of a sanctions hearing for misnaming two defendants in a toxic tort case sought and received a special prosecutor for the sanctions process, according to the Recorder on Law.com. The master's report was issued in March for the Ninth Circuit.
Public defender overbilling?
Posted on June 07, 2008A juvenile defender was accused by the Illinois disciplinary authorities with billing the county 20 hours a day for 90 days and over 24 hours a day 38 times and 40 hours one of those days. The complaint is here. LegalProfessionBlog's post is here.
Eric Holder as Attorney General?
Posted on June 05, 2008When I saw last night that Eric Holder is one of Sen. Obama's three vetters of VP candidates, I said that he would be Attorney General. ABAJournal.com makes the same observation today.
California considering barring flat rate fees and permitting prosecutors to contact accused persons
Posted on June 03, 2008California has proposed amendments to is Code of Professional Conduct. The proposal is nearly 300 pages long. Of interest to criminal defense lawyers are a prohibition on flat fees (1.5(f)) and permitting prosecutors to settle civil claims in a trade off when settling criminal cases (Rule 3...
Top 100 criminal justice blogs
Posted on June 03, 2008This website was listed as one of the top 100 criminal justice blogs this week. So was my other blog, FourthAmendment.com.
4th Cir.: New CJA plan that provides for explanation of denied fees satisfies due process and retroactive application to fees is not constituitonally required
Posted on June 02, 2008Fourth Circuit holds in an unpublished opinion that denial or trimming of fees under the Criminal Justice Act (18 U.S.C. § 3006A) prospectively has safeguards for an explanation of why and that satisfies due process. Retroactive application of the standards to prior fee requests not required...
Fortune magazine on ethics opinions for sale
Posted on May 30, 2008Fortune magazine has an interesting article about ethics opinions for sale: Blowing the whistle on unethical lawyers / Legal professor William Simon aims to shame colleagues who sell their opinions for the right price, by Senior Editor Roger Parloff. The article discusses a coming Stanford Law Review article...
Accessing lawyer wife's firm e-mail
Posted on May 28, 2008Accessing lawyer wife's firm e-mail account and then e-mails of seven other lawyers in that firm warranted suspension. Lawyer Disciplinary Board v. Markins, 33256 (W.Va. May 23, 2008). See Twenty First Century Misconduct on Legal Profession Blog and the post on ABAJournal...
Outsourcing to India violate privilege?
Posted on May 25, 2008A DC law firm has sued over legal documents outsourced to India that could be read by the government because international e-mail is subject to interception and that violates privile.
Law.com: "11th Circuit to Consider Whether Right to Counsel Is Lost When Assets Are Frozen"
Posted on May 24, 2008Law.com today has this article: "11th Circuit to Consider Whether Right to Counsel Is Lost When Assets Are Frozen": Even after being stripped of the money, the Kaleys didn't qualify for a federal public defender. U.S. Magistrate Judge James M. Hopkins in West Palm Beach concluded the couple could liquidate their 401(k) retirement accounts and their children's tax-deferred college funds -- at a cost of a $200,000 tax penalty -- to pay for a cut-rate lawyer...
Not striking ADA was strategic choice and not IAC
Posted on May 23, 2008Defense counsel was not ineffective for not challenging as a juror an ADA from the same office prosecuting the case. This was purely a matter of trial strategy. State v. Morales, --- S.W.3d ----, 2008 WL 2081617 (Tex.Crim.App. May 14, 2008): For purposes of argument, we will assume that Wyatt was challengeable for cause under the implied bias doctrine...
Law firm heirarchy and following the rules
Posted on May 23, 2008On the psychological effects of the hierarchy of law firms and conformity to ethical norms or influences, see Unethical Obedience by Subordinate Attorneys: Lessons from Social Psychology by Andrew M. Perlman of the Suffolk University Law School.
California Bar investigating Brady violation
Posted on May 20, 2008California Bar hearing case alleging prosecutorial misconduct in withholding exculpatory evidence. Prosecutor faces rare disciplinary hearing today, San Jose Mercury News. The judges shall inquire diligently, and if the witness is a false witness and has accused his brother falsely, then you shall do to him as he had meant to do to his brother...
Merely eliciting bad information in witness examination is not IAC
Posted on May 20, 2008Merely eliciting bad information in witness examination is not ineffective assistance. State v. Hairston, 06CRS055833 (N.C. May 20, 2008).
Kuehne receives criminal defense award
Posted on May 18, 2008Indicted Miamia lawyer Ben Kuehne received an award from his colleagues Saturday, see NLJ: Ben Kuehne, the prominent Miami defense attorney who is facing federal charges of money laundering in connection with his vetting of legal fees, will receive the highest honor from a Miami criminal defense organization Saturday night...
"Lawyer Quits Firm to Continue Juvenile Client?s Defense"
Posted on May 17, 2008A lawyer gave up a law firm job to continue to represent a juvenile in a wrongful death action. Pursuing justice/Lawyer quits firm to continue client’s defense, in the New Pittsburgh Courier: Nine times out of 10, the saying goes, when someone says, “it’s not the money, it’s the principle,” it’s really about “the money...
Hourly billing starting to disappear
Posted on May 15, 2008The billable hour bites the dust in another area of the country: Birmingham: The billable hour system, which charges clients by the hour for legal services, has been a standard billing method for decades, but has its share of critics that claim it results in exorbitant legal costs and the dragging out of legal procedures...
§ 2:18 The right to counsel
Posted on May 14, 2008§ 2:18 The right to counsel can be forfeited by serious misconduct. Here, defendant seriously assaulted his public defender in front of the jury. The trial court rejected use of a stun belt as inadequate and had the defendant shackled an in jail clothes since his court clothes had the public defender's blood all over them...
Lawyer purchasing marijuana from client warrants disbarment
Posted on May 14, 2008Lawyer's purchasing marijuana 10-15 times from a client justifies disbarment. It is a conflict of interest with the client under RPC 1.8(b) and reflects on the attorney's fitness to practice. In re Cowger, 99,955 (Kan. May 9, 2008).
Lawyer cannot abandon appeal because client did not pay
Posted on May 13, 2008§ 21:17 n. 3 A lawyer who failed to work on a filed immigration appeal because he had not been paid was referred to the Second Circuit's disciplinary panel. Bennett v. Mukasey, 2008 WL 2003777 (2d Cir. May 12, 2008) (Newman, J., in chambers). Pay-as-You-Go Lawyer Referred to 2nd Circuit's Grievance Panel on Law...
Jury selection before a USMJ is a lawyer's tactical decision
Posted on May 13, 2008§ 9:32 n. 8 Jury selection before a U.S. Magistrate Judge rather than an Art. III District Judge is a tactical decision reserved to counsel. Gonzalez v. United States, 2008 WL 2001954 (May 12, 2008): Giving the attorney control of trial management mattersis a practical necessity...
Acquitted federal prosecutor denied attorneys fees under Hyde Amendment
Posted on May 09, 2008A former federal prosecutor prosecuted for presenting false evidence and obstruction of justice in a terrorism trial and acquitted is denied attorneys fees because he could not show that the prosecution was in bad faith. Today's Detroit Free Press: Convertino request is denied.
Justice Scalia on criminal defense lawyers?
Posted on May 08, 2008Justice Scalia on C-SPAN; is he complaining about criminal defense lawyers or female lawyers? I am all and all more impressed by the quality of the lawyers before us than I am discouraged by their lack of competence. Former Chief Justice Burger was a severe critic of the bar...
Lawyer under indictment has duty to disclose to client where prosecutor is the same
Posted on May 07, 2008New Jersey holds that a lawyer under indictment for stalking had a duty to disclose to a murder defendant client that he was being prosecuted by the same prosecutor's office he was defending the client against because he would likely need something for himself from that prosecutor...
Texas Lawyer on lawyer suicide
Posted on May 06, 2008Texas Lawyer has an article about the 2005 hospital suicide of a "driven" lawyer: Attorney, Interrupted: Seeking Meaning, Recovery for a Legal Life Lost. His estate sued the hospital he was committed to for giving him a razor he used to take his life...
Criminal justice as part of society's "infrastructure"
Posted on May 05, 2008In an article about the Neville Brothers' return to New Orleans' Jazzfest after Katrina, the NY Times on Friday referred to criminal justice as a part of the city's "infrastructure" that has not returned to normal. Mr. Davis added that while the city’s hospitality business has returned to its old capabilities for events like Jazzfest, Mardi Gras and the Super Bowl, its infrastructure — from utilities to public schools to criminal justice — has by no means been fully restored...
"Thurgood" on Broadway
Posted on May 04, 2008I'm in NYC at an NACDL meeting, and, because it is of a limited run, I went to Thurgood this afternoon. Astounding wasn't the the word--tour de force is better. A one man play with Laurence Fishburne. It runs only through July 12th. If you can get to it, go...
Incivility results in order to write article on civility
Posted on May 03, 2008A lawyer who was not civil to another lawyer was subjected to the creative sanction by a federal court of writing an article on civility for the state bar journal. Legal Profession Blog, with a copy of the order.
Moncier suspended from federal court for at least three years
Posted on May 02, 2008Herb Moncier of Knoxville, who received a contempt for not stopping talking, as noted here, was suspended from practice in federal court for at least three years, and maybe as much as seven, by the Eastern District of Tennessee. See the Knoxville News Sentinel here: Accusing a prominent Knoxville lawyer of running amok in the face of repeated warnings, the region's top federal judge on Tuesday ordered Herbert S...
Wearing microphone during trial was conflict and breach of confidentiality but defendant waived, so no IAC
Posted on April 29, 2008Defense counsel's wearing a microphone for television recording during defendant's trial created an actual conflict of interest and potentially violated confidentiality, but it was not ineffective assistance of counsel and defendant consented to the potential conflict...
NY Times: "Lawyers Fear Monitoring in Cases on Terrorism"
Posted on April 28, 2008In today's NY Times: Lawyers Fear Monitoring in Cases on Terrorism: PORTLAND, Ore. — Thomas Nelson, an Oregon lawyer, has lived in a state of perpetual jet lag for the last two years. Every few weeks, he boards a plane in Portland and flies to the Middle East to meet with a high-profile Saudi client who cannot enter the United States because he faces charges here of financing terrorism...
Gitmo lawyer concerned about fairness of trials
Posted on April 27, 2008The lead Gitmo lawyer is concerned about fairness of the trials, from PaperChase. Many of the defendants are not going to participate in the trials, as noted here. One obvious concern of the Gitmo detainees naturally would be the zealousness of their military counsel...
D.C. Madam's former criminal defense lawyer suspended by Florida Bar
Posted on April 25, 2008D.C. Madam's former criminal defense lawyer was suspended by Florida Bar for three years, according to ABAJournal.com for abusive litigation tactics and a huge child support debt.
ABAJournal.com: "Lawyer Surrenders License After Bar Says He Left Innocent Client in Jail"
Posted on April 24, 2008The ABAJournal.com posted this story this morning: Lawyer Surrenders License After Bar Says He Left Innocent Client in Jail, linking to the Inland Valley Daily Bulletin. This was, however, only one of multiple ethical complaints: Count 9 (page 16 of this pdf) where the lawyer had information of actual innocence and sat on it for months while the client remained in jail...
Criminal defense lawyer accused to taking cocaine for fees
Posted on April 23, 2008An Arkansas criminal defense lawyer (and (now) former part-time public defender) was charged a few days ago with taking cocaine from a client for fees, three times. The client was wired by the police and delivered an "8 ball" where a greater quantity was discussed...
Portland PD retires after 37 years on the job
Posted on April 22, 2008James Hennings, who signed on to the Portland PD's office for a two year stint to get it started, retired after 37 years on the job, according to the Portland Oregonian. The office grew from two lawyers to 60 with a support staff of 80 handling 17,000 cases last year: He helped found the firm eight years after the landmark U...
Lawyer arrests cop
Posted on April 22, 2008A young lawyer accused a cop of parking infractions with a citizen's arrest, according to the Portland Mercury. Reading this reminded me of Gomer yelling "Citizen's arrest, citizen's arrest" to Barney Fife. Too young to remember that one, huh?
Hourly billing in extremis: £5.2M to prepare for a five day trial
Posted on April 20, 2008In what has to be a record, a UK law firm billed a client £5.2M (US$10.4M) over 15 months to prepare for a five day trial, as reported on ABAJournal.com, a situation the trial judge found "shocking." Two associates worked 2300 hours each, the equivalent of full time on one case, and everybody in the firm a combined total of nine man years for the five day trial...
PDs reveal deceased client's confession after 26 years to free another man
Posted on April 19, 2008After client's death, his two public defenders were able to reveal his confession to a homicide that wrongfully kept another man in prison for 26 years. See today's Chicago Sun-Times and AOL news and an AP post from last week in preparation for yesterday's hearing...
90 days for masturbatory hand gesture to judge
Posted on April 17, 2008Lawyer who made masturbatory hand gesture during a judge's ruling previously posted here at the time of the contempt, gets 90 days and calls the sentence fair. Austin Statesman-American: Lewd gesture gets lawyer 90 days in jail.
Sixth Amendment does not apply to international extradition
Posted on April 16, 2008The Sixth Amendment has no application in an international extradition proceeding. [Although here, the court grants a conditional extradition based on the assurances of the requesting country that a new trial will be given on extradition because the fugitive was tried in absentia even in apparent violation of the requesting country's constitution...
Filed your tax return?
Posted on April 15, 2008Failed to file your tax return? Apparently the IRS likes to make examples by prosecuting lawyers. See ABAJournal.com from late today.
And you think the economy sucks? Ask any criminal defense lawyer
Posted on April 13, 2008Criminal defense lawyers are the canary in the legal economic mineshaft. When the economy goes south, we are the first to feel it. Private criminal defense lawyers see their client base shrink and income slide, while public defenders see their caseloads go up, but their pay doesn't or their numbers don't...
DA removed from ongoing death penalty trial because of conflict of an assistant
Posted on April 13, 2008In Colorado, a death penalty case in progress had the prosecutors removed from the case because one of the assistant prosecutors represented the defendant for about six months years earlier. The case involves a prison killing. DA's office taken off murder case / A judge rules that Carol Chambers' office has a conflict of interest in a death penalty case involving inmates: District Attorney Carol Chambers' office has been yanked from a death penalty case after a judge ruled her office has a conflict of interest and violated professional rules of conduct...
No contempt for alleged violation of vague order
Posted on April 01, 2008Defense counsel's choice of one of four possible meanings of the trial court's order was not contempt because the order was not a clear as the court chose. In re Elliot, No. 32265 (Idaho March 28, 2008).
"Attorney sues for right to die on his own terms"
Posted on April 01, 2008A Florida lawyer whose mental state is declining due to ministrokes has sued to declare that he has a "right to die on his own terms," as reported in today's Jacksonville Times-Union.
Defense counsel telling trial court that defendant would commit perjury required trial court to recuse
Posted on March 31, 2008Failure of trial judge, who would eventually sit as the trier of fact on defendant's motion to suppress his confession to police, to recuse herself from murder prosecution once defendant's attorney told judge that defendant had confessed to the crime to him and intended to commit perjury deprived defendant of a fair trial and of his right to due process, thus warranting a new suppression hearing and trial, regardless of the fact that defendant's trial was not a bench trial at which trial judge made ultimate decision of guilt or innocence, as the most overwhelming and damning proof of defendant's guilt was the confession to police...
MS: Telling trial judge of client's plan to commit perjury at suppression hearing required recusal of judge
Posted on March 31, 2008Failure of trial judge, who would eventually sit as the trier of fact on defendant's motion to suppress his confession to police, to recuse herself from murder prosecution once defendant's attorney told judge that defendant had confessed to the crime to him and intended to commit perjury deprived defendant of a fair trial and of his right to due process, thus warranting a new suppression hearing and trial, regardless of the fact that defendant's trial was not a bench trial at which trial judge made ultimate decision of guilt or innocence, as the most overwhelming and damning proof of defendant's guilt was the confession to police...
May 1st in Chicago: Symposium: "Lawyers, Law Firms & the Legal Profession: An Ethical View of the Business of Law"
Posted on March 30, 2008On May 1st in Chicago is DePaul Business & Commercial Law Journal's Sixth Annual Symposium. This year's topic is one of my personal favorites: Lawyers, Law Firms, & the Legal Profession: An Ethical View of the Business of Law. The first session: Lawyers in a Fee Quandary: Must the Billable Hour Die? In a recent ABA Journal article, author Scott Turow proclaimed that “the billable hour must die...
Man sues criminal defense lawyer claiming manslaughter conviction was erroneous because death was by medical malpractice
Posted on March 28, 2008A man who served three years for manslaughter for punching a man who died now claims his criminal defense lawyer committed malpractice in not investigating the death that may have been caused by medical malpractice. See New Milford Attorneys Sued by Former Client linked from ABAJournal...
Charging personal expenses to one's clients is theft
Posted on March 28, 2008In a criminal complaint in the S.D.N.Y., a lawyer was charged with a mail fraud for charging personal expenses to his firm, and he resigned when confronted. See Reuters: US lawyer pleads guilty to filing false expenses. The law firm promptly repaid all the clients...
Lawyers under investigation for the method of settling Detroit Mayor's civil case
Posted on March 27, 2008In the Detroit Mayor's civil case, ten lawyers are under disciplinary investigation for negotiating a settlement to keep the details secret, even from the City Council that had to vote for it. Yesterday's Detroit Free Press: Legal panel investigating lawyers in mayor scandal.
Failure to allege innocence or "colorable claim of innocence" defeats criminal defense legal malpractice claim
Posted on March 27, 2008Failure to allege actual innocence or a "colorable claim of innocence" in a legal malpractice claim is fatal to the claim. Abuhouran v. Lans, 2008 WL 739903 (2d Cir. March 18, 2008) (unpublished): Under New York law, “[t]o state a cause of action for legal malpractice arising from negligent representation in a criminal proceeding, plaintiff must allege his innocence or a colorable claim of innocence of the underlying offense, for so long as the determination of his guilt of that offense remains undisturbed, no cause of action will lie...
D.C. judge cited for not being "patient, dignified and courteous" for jailing a PD who kept arguing
Posted on March 24, 2008A D.C. judge has been judicially cited for not being "patient, dignified and courteous" for jailing a PD who kept arguing after being told to shut up. D.C. Judge Cited for Ordering Detention of Talkative PD, on ABAJournal.com: A Washington, D.C., judge who ordered the detention of a public defender who wouldn’t stop talking has accepted a determination that he violated the judicial ethics code...
"Why Are So Many Lawyers So Depressed?" / Crime statistics as an economic indicator, or vice versa?
Posted on March 23, 2008This is right off the Wall Street Journal Blog: Why Are So Many Lawyers So Depressed?, posted by Peter Lattman, from December 13, 2007. I just found it today: Maybe it’s the Luddite in us, but the Law Blog has been reluctant to vlog. But I guess we’ve been waiting for just the right video...
FL lawyer invites sanctions, and gets them
Posted on March 23, 2008In a running battle with the Florida Supreme Court, a First Amendment lawyer has been sanctioned and can no longer file pleadings there without another lawyer signing on. He referred to a prior holding as "foolish," one of the more tame comments. Per ABAJournal...
Vague billing records do not support quantum meruit recovery
Posted on March 22, 2008Vague billing records and a vague fee understanding with the client does not support quantum meruit recovery. Mallin & Assoc. v. Nash Metalware Co., Inc., 18 Misc. 3d 890, 849 N.Y.S.2d 752 (N.Y. Co. Civil 2008).
Masturbatory hand gesture from defense counsel a state's plea offer about his thoughts about a plea offer while looking at the judge constitutes contempt
Posted on March 22, 2008A masturbatory hand gesture from defense counsel about his thoughts about a state's plea offer while looking at the judge was deemed contempt by an Austin, Texas judge. Lawyer jailed over lewd gesture at judge, in yesterday's Austin Statesman-American: An Austin defense lawyer was jailed last week after being accused of making a lewd gesture at a judge while in court representing a client on charges of driving while intoxicated...
Motion to suppress would have been granted if filed; IAC shown without a hearing
Posted on March 21, 2008Defendant showed IAC from defense counsel's failure to move to suppress a confession obtained after invocation of right to counsel. Based on the record of the pleadings alone and without a hearing, referring back to the trial record, the defendant would have clearly prevailed on the motion, so counsel was ineffective...
Libby disbarred
Posted on March 20, 2008Scooter Libby was disbarred today. Watch for his pardon in January 2009, and he'll ask for his law license back.
ABA Litigation: "Secrets & Lies"
Posted on March 19, 2008On the ABA website, articles from an issue of Litigation from a year ago on Secrets & Lies, with such interesting articles as: • Elaine E. Bucklo, From the Bench: When Lawyers Lie • Bruce A. Green, Deceitful Silence • Kelli L...
Can't win for losing; lawyer suspended for second employee theft of client funds for failure to supervise
Posted on March 19, 2008Lawyer suspended for second paralegal's theft of client funds; this one hired to clean up the mess of a first paralegal theft. Too-trusting lawyer gets 2nd sanction.
Calling judge "delusional" is contempt
Posted on March 19, 2008It's official: Calling a judge "delusional" who isn't is contempt. It is also not protected by the First Amendment. State v. Baumgartner, (Ohio App. 6th Dist. March 7, 2008). Presumably, truth would be a defense? {¶ 98} In the very first subpart of the contempt citation, appellant accused the trial judge and the Chief Justice of dishonesty...
Deposition to perpetuate criminal defense lawyers testimony rejected
Posted on March 18, 2008Plaintiff in a criminal defense legal malpractice action cannot take a deposition to pepetuate testimony of his former lawyer because none of the conditions to do so were present. In re Alexander, --- S.W.3d ----, 2008 WL 659712 (Tex. App. -- Houston (1st Dist...
FL upholds conflict defender office creation
Posted on March 18, 2008The Florida Supreme Court upheld the creation of conflicts defender officers in Crist v. Florida Ass'n of Criminal Defense Lawyers, Inc., --- So.2d ----, 2008 WL 659435 (Fla. March 13, 2008): The issue in this case is whether the Legislature violated article V, section 18 of the Florida Constitution by enacting chapter 2007-62, Laws of Florida, which creates five Offices of Criminal Conflict and Civil Regional Counsel to handle representation in criminal cases where a public defender has a conflict...
CA2: Probation for lawyer convicted in $100M scheme error
Posted on March 18, 2008A lawyer involved in a $100M fraud scheme was erroneously sentenced to probation, the Second Circuit rules. See story on Law.com. United States v. Cutler (2d Cir. March 17, 2008).*
SCOTUS hears right to counsel case this week
Posted on March 17, 2008From Willamette School of Law: Oral argument this week in a right to counsel case: Rothgery v. Gillespie County Argued: 3/17/2008 No. 07-440 Court Below: 491 F.3d 293 (5th Circuit 2006) Full Text: http://www.ca5.uscourts.gov/opinions%5Cpub%5C06/06-50267-CV0...
Pro se defendant acquitted in MD murder trial
Posted on March 17, 2008Today's Washington Post: Murder Defendant Found Man to Win Case: Himself / High School Dropout Prevails at Pr. George's Trial; three day trial, acquittal in less than an hour: The verdict: Not guilty of first-degree murder. Not guilty of second-degree murder...
Law student depression
Posted on March 15, 2008Relevant to § 34:7 on lawyer burnout is the recognition of depression and anxiety in law students. See ABA Law Student Group Tackles Depression on Law.com. In the article is a link to The Hidden Sources of Law School Stress by Lawrence Krieger, a clinical professor at Florida State University College of Law...
Misadvising defendant of the immigration consequences of a guilty plea is IAC
Posted on March 15, 2008Defense counsel's misadvising defendant of the immigration consequences of a guilty plea (i.e., likely deportation) is grounds for coram nobis relief in the U.S. military courts. A mere failure to advise is not IAC, but misadvice is. Denedo v. U.S., 2008 WL 657868 (C...
Defendant in court attacks prosecutor with razor, and defense counsel cut trying to help her
Posted on March 14, 2008A drug defendant in federal court in Brooklyn attacked the senior drug prosecutor in court with a razor blade and his 72 year old criminal defense lawyer got cut trying to stop him. See the NY Daily News: Courtroom chaos as convict with razor attacks prosecutor, written in typical NYDN's style: A razor-wielding drug thug grabbed U...
Criminal defense lawyer's suicide in California
Posted on March 14, 2008"[T]he most prominent criminal defense attorney in Orange County" California has apparently committed suicide as a result of depression and chronic pain, according to the O.C. Register: His friends said that Proctor had been in chronic pain for years with a bad back, and was depressed over recent criticism he was receiving in the San Jose Mercury News over his management of the juvenile defenders' contract in San Jose.
MN jail recorded attorney-client conversations
Posted on March 13, 2008Minnesota jail officials recorded attorney-client telephone calls but claimed that they did not listen to them and deleted them. Defense counsel believes they did because defense witnesses discussed on the phone call were promptly talked to by the police...
Intentional intrusion by taping attorney-client conversation for personal gain warrants punitive damages
Posted on March 10, 2008Intentionally surreptitiously recording attorney-client communications warrants punitive damages, in the civil case over the air charter company that recorded Michael Jackson and one of his lawyers and he was flying back to turn himself in, as reported by the AP.
Taking proceeds of crime as a fee?
Posted on March 09, 2008Rhea Kemble Brecher, Symposium: Limitations on the Effectiveness of Criminal Defense Counsel: Legitimate Means or "Chilling Wedges?" the Sixth Amendment and the Right to Counsel, 136 U. Pa. L. Rev. 1957, 1960-61 (1988): Certainly the proceeds of this criminal action should not be used to pay for a criminal defense attorney...
Missing final deadline for appellate brief in criminal case warranted $5,000 sanction
Posted on March 07, 2008A criminal defense lawyer missed the final extension deadline, and was referred by the state Supreme Court to the ethics committee after the brief was permitted to be filed [to not result in an IAC claim for dismissing the appeal]. The ethics committee sanctioned the lawyer $5,000 plus $500 for not responding to the ethics complaint...
Attorney-client and work product privilege to seized materials must be promptly asserted or it is waived
Posted on March 06, 2008Attorney-client and work product privilege to seized materials must be promptly asserted or it is waived. United States v. Ary, 2008 U.S. App. LEXIS 4633 (10th Cir. March 4, 2008). See post on FourthAmendment.com today.
Does lawyer e-mail snooping warrant a 2 year suspension?
Posted on March 04, 2008A WV lawyer accused of snooping in his wife's law firm's e-mail accounts is recommended for a two year suspension. It started out trying to find out if she was having an affair, but it went into other lawyers' e-mails and an IT investigation tracked the snooping back to the law firm where he worked...
Lawyer defendant running ads to taint jury poll?
Posted on March 03, 2008Lawyer Geoffery Feiger, indicted for illegally funneling campaign contributions in 2004 and set for trial in April, is running television ads that the government contends are attempting to taint the jury pool. See Law.com today. He defends the ads on First Amendment grounds...
Update: "Jury sides with attorney, not Clara Harris, in lawsuit"
Posted on March 02, 2008Update: Jury sides with attorney, not Clara Harris, in lawsuit. The original post is here from February 20th about a Houston criminal defense lawyer accused by a client of self-interest with the media over the client's interest. The trial resulted in an 11-1 jury verdict for the lawyer.
Failure to recommend favorable plea offer ineffective assistance with prejudice
Posted on March 01, 2008Failure to pass on a favorable plea offer with a recommendation that it be taken was ineffective assistance. The petitioner had a civil case pending because he had been shot by the police. Carrion v. Smith, --- F.Supp.2d ----, 2008 WL 495312 (S.D. N.Y...
ABA Journal: Fee collections down
Posted on February 29, 2008With a firm grasp of the obvious, the ABA Journal has finally noticed that the economy has slowed down, and lawyers are noticing in lower fee collections. Large Law Firms Prepare for a Slower Year.
ABA Journal on reasonableness of fees
Posted on February 29, 2008From the ABA Journal is an article of marginal relevance to criminal defense lawyers: Let’s Be Reasonable / Client consent to a fee agreement doesn’t mean it’s ethical.
ABA: "Five Things to Remember When Parting Ways with a Client"
Posted on February 28, 2008From ABAJournal.com, from the March ABA Journal, Five Things to Remember When Parting Ways with a Client, without the discussion: . 1. Give reasonable notice of the end of representation. . 2. Check local requirements regarding the right to withdraw...
Motion to withdraw a misdemeanor plea: $250,000 fee
Posted on February 28, 2008ABAJournal.com, 41 minutes ago: Legal Costs in Sen. Craig’s Restroom Case Near $250,000. Why can't we get those kids of fees?
"Always assume that the client is recording you"
Posted on February 27, 2008Remember the admonition in § 1:1, Rule 5(b), "Always assume that the client is recording you"? On ABC News and CNN.com today is a story about the parents of a 4 year old kindergarten student who put a digital recorder in her backpack to record the teacher berating the students.
Former defense counsel becoming prosecutor conflicted out prosecutor's office
Posted on February 25, 2008Former defense lawyer coming to the prosecutor's officer resulted in disqualification of the entire office because of a conflict with the accused. State v. McClellan, --- P.3d ----, 2008 WL 466574, 2008 UT App 48 (Feb 22, 2008): ¶ 20 When a private lawyer is disqualified because of a conflict of interest, that disqualification will be imputed to the lawyer's entire firm unless the firm can establish that it has screened the lawyer from working on the matter and provided the former client written notice of the conflict...
Jurisdiction over clients in NY who contacted lawyer only by e-mail, telephone, and facsimile
Posted on February 23, 2008Long-arm jurisdiction existed over clients who never came to New York from California to retain their attorney who handled the case exclusively by e-mail, telephone, and facsimile. Fischbarg v. Doucet, 9 N.Y.3d 375, 849 N.Y.S.2d 501 (2008).
IAC in deportation
Posted on February 22, 2008In Aris v. Mukasey, 07-1211-ag (2d Cir. February 20, 2008), the Second Circuit held that an illegal alien scheduled for a deportation hearing whose lawyer failed to tell him of the hearing and then correct it after found out that deportation was going to occur, and the government played word games in trying to deport the defendant anyway, received ineffective assistance of counsel...
Lawyer who billed 1286 days in one year under criminal investigation
Posted on February 22, 2008On February 16th is posted the article about the public lawyer who claimed 1286 work days in one year. It was claimed it was normal. The feds and state are now investigating.
Houston excessive fees case focuses on allegations of lawyer's self promotion
Posted on February 20, 2008In an article posted in the last hour on the Houston Chronicle's website, an excessive attorney's fees issue has turned into its own case against the lawyer: Attorney: Clara Harris paid too much for her murder defense. It is also on ABAJournal.com. The lawyer is accused of self-promotion through media deals, but the defense is that the client consented, apparently for her own benefit: Criminal defense attorney George Parnham focused on promoting himself more than concentrating on his representation of Clara Harris during her well-publicized murder trial, an attorney said today in court...
Lawyers on TV and in movies and their apparent lack of ethics: Thank the writers
Posted on February 17, 2008Pop culture and the lack of ethics of lawyers: Why are TV Lawyers Ethically Challenged? That’s Hollywood, Writers Say on ABAJournal.com. The article talks about "Law & Order" (there are 3), "Boston Legal" (where the lawyers often have intraoffice conflicts of interest), and "Stark" (where Stark Nifongesquely and smugly arrests the defendant before the investigation is anywhere near done, investigating into the trial and scrambling to put a case together, occasionally trying the wrong guy in the rush to "justice")...
"I plead the Fifth" an unequivocal invocation of right to remain silent; habeas writ granted
Posted on February 16, 2008CA9 en banc: "I plead the Fifth" is an unequivocal invocation of the right to remain silent, and the habeas writ is granted. Anderson v. Terhune, --- F.3d ----, 2008 WL 399199 (9th Cir. February 15, 2008): It is likely that few Americans can profess fluency in the Bill of Rights, but the Fifth Amendment is surely an exception...
Why billable hours should be unethical: 1286 days in a year
Posted on February 16, 2008A Long Island lawyer working for public agencies logged 1286 billable days in 1999, and he defends overbilling as a "common practice." Lawyer Who ‘Worked’ 1,286 Days in a Year: ‘Common Practice’. Civil lawyers give criminal lawyers a bad rap...
CA1: AEDPA does not violate Art. III
Posted on February 16, 2008AEDPA held constitutional and not a violation of Art. III in the First Circuit. Evans v. Thompson, 2008 WL 344208 (1st Cir. February 8, 2008). No court agrees, but dissenting opinions in some circuits do. See, e.g., Crater v. Galaza, 508 F.3d 1261 (9th Cir...
Failure to obtain experts was IAC where they could have helped defendant
Posted on February 16, 2008Defense counsel's failure to obtain experts and interview State's experts due to defendant's inability to pay constituted error on part of counsel sufficient to support defendant's claim of ineffective assistance of counsel in trial for negligent child abuse...
Lawyer convicted of smuggling saw blade to counsel
Posted on February 11, 2008A Fulton County lawyer was convicted of smuggling a saw blade into a client in jail, according to ABAJournal.com.
Lying to partner and client and forgery leads to disbarment action
Posted on February 10, 2008Lying to a law partner and client and forging a document to lie to the client about a matter is the basis for a disbarment action in D.C., as reported on Law.com from the Legal Times.
N.C. Drops Ethics Charges Against PD Who Told of Dead Client?s Confession
Posted on February 10, 2008On the ABAJournal.com website: N.C. Drops Ethics Charges Against PD Who Told of Dead Client’s Confession. A prior post on ABAJournal.com is here. The "60 Minutes" story on the underlying murder case is here. Disclaimer: I wrote an affidavit in support of the criminal defense lawyer's disclosure, based on the unique facts of this case.
Man commits suicide during jury deliberations, not knowing mistrial granted
Posted on February 09, 2008Client commits suicide during jury deliberations in sex abuse case, not knowing that judge declared a mistrial for a hung jury, as reported by the Columbian of Vancouver, WA.
Failure to advise of possible deportation not IAC where court advised of it
Posted on February 09, 2008Failure to advise the defendant of potential deportation as a collateral consequence of guilty plea was not IAC. The court advised the defendant it was likely at the time of the guilty plea. State v. Hamilton, 2008 Ohio 455, 2008 Ohio App. LEXIS 413 (8th Dist...
Miami lawyer indicted for money laundering in pay fee for a client
Posted on February 08, 2008A high profile Miami lawyer, one of Al Gore's lawyers during 2000 Floria election challenge, was indicted for money laundering for receiving money paid over to Roy Black to defend a Colombian drug lord, according to the Daily Business Review. The article includes a link to the indictment...
E-mail goof exposes settlement talks
Posted on February 08, 2008Classic e-mail screw-up lands $1B settlement talks on front page of NY Times. One lawyer was sending an e-mail to co-counsel, and autocomplete suggested a name which counsel "selected," and it was a NY Times reporter with the same last name as co-counsel...
FL conflict counsel case goes to state S.Ct.
Posted on February 08, 2008The ongoing Florida conflicts counsel case is now in the state Supreme Court with an expedited appeal. Florida public defenders are elected, and the FACDL filed a quo warranto action against the state contending that conflict defenders also have to be elected...
MA: Overaggressive investigation of judge nets two disbarment
Posted on February 07, 2008On ABAJournal.com is this interesting story from yesterday: Former Ethics Counsel Disbarred Over Investigation of Judge: Two Massachusetts lawyers, including the former ethics counsel for two state governors, were disbarred today because of their aggressive investigation of a judge who ruled against their clients in 1995 in a high-profile family battle over control of a supermarket chain...
When going into the courthouse, be sure to leave your tin of pot outside
Posted on February 07, 2008A lawyer Michigan was busted for possession of pot after his tin container set off the courthouse metal detector, according to the Kalamazoo Gazette.
FL: Client's false identity has to be disclosed to the court
Posted on February 07, 2008In the Florida Bar News is this article: Client using an alias? It’s your duty to tell the court: An attorney representing a criminal defendant in court must tell the court if the defendant is using an assumed name, even if the client refuses to make the disclosure on his or her own...
Missing murder trial because of sabbatical gets referral to state bar
Posted on February 07, 2008The lawyer who missed a murder trial for being on a sabbatical, posted here, has been referred to the NV state bar, according to yesterday's Las Vegas Review-Journal.
Motion for new counsel denied, so defendant KO's lawyer
Posted on February 06, 2008On MSNBC.com is a video of a criminal defendant in court complaining about his representation. When the judge denies the motion for new counsel, the defendant punches out his lawyer.
IAC on appeal that led to belated appeal did not state claim for legal malpractice without allegation of actual innocence
Posted on February 06, 2008Legal malpractice action for failing to pursue a criminal appeal which led to successful post-conviction relief that got the plaintiff an appeal failed to state a claim for relief. The plaintiff did not allege that he was innocent, only that he was delayed in appealing for 54 months...
The $1,100 per hour lawyer
Posted on February 05, 2008Not on point, but interesting, is the ABA's The G-Man, A week in the life of a $1,000-per-hour lawyer.
"Always assume that the client is recording you"
Posted on February 04, 2008Under the category of "Always assume that the client is recording you," § 1:1, Rule 5(b), see the latest technology in wireless pen cameras for $269.
Criminal defense lawyer's libel suit over his criminal case tossed on summary judgment
Posted on February 04, 2008Summary judgment granted in a libel case brought by a criminal defense lawyer accused of theft by the Erie County prosecutor for taking fees and failing to do the work. The criminal case was resolved in the lawyer's favor. The use of "theft" by the newspaper was within the First Amendment...
Failure to pass on plea offer per se ineffective assistance with prejudice
Posted on February 03, 2008The Second Circuit recognizes that failure to pass on a plea offer is ineffective assistance per se under Strickland if the defendant shows prejudice. Goldberg v. Tracy, 2008 WL 216293 (E.D. N.Y. January 23, 2008): The Court of Appeals for the Second Circuit has explained that a criminal defense lawyer must always convey the terms of a plea offer to a defendant; failure to do so is in effect a per se violation of the first prong of Strickland: We recently considered whether defense counsel renders ineffective assistance when he fails to give his client any advice as to the acceptance of a plea bargain offered by the prosecution...
ABA article on lawyer deceit in investigations
Posted on February 02, 2008The ABA posted on its website an article from the February 2008 issue written by Eileen Libby: When the Truth Can Wait / There are times when a lawyer may engage in a bit of deception—but not many. It is an interesting and thought provoking article showing the divergent views from around the country.
Ohio reaffirms standby counsel not approved
Posted on February 02, 2008Defendant refused to waive right to counsel on the record before a hearing judge, but another judge tried the case and permitted the defendant essentially to represent himself. Ohio does not permit hybrid representation or stand by counsel. State v...
Balancing life and work
Posted on February 02, 2008On balancing life and work, people leaving the law, and the law's inability to catch up with other professions in being more "life friendly," see Lisa Belkin, Who’s Cuddly Now? Law Firms, from the January 24, 2008, NY Times.
Lawyer handcuffed to client and jailed for allegedly lying about client's efforts to hide a witness
Posted on February 01, 2008An Oklahoma "Judge jails lawyer in abuse case": An Oklahoma City attorney was jailed Tuesday after a judge accused him of lying about his client's efforts to hide a witness in a domestic abuse trial. Attorney Derek Smith was sentenced to four days in jail after being found in contempt of court by Oklahoma County District Judge Twyla Mason Gray...
Lawyer handcuffed to client and jailed for allegedly lying about client's efforts to hide a witness
Posted on January 31, 2008An Oklahoma "Judge jails lawyer in abuse case": An Oklahoma City attorney was jailed Tuesday after a judge accused him of lying about his client's efforts to hide a witness in a domestic abuse trial. Attorney Derek Smith was sentenced to four days in jail after being found in contempt of court by Oklahoma County District Judge Twyla Mason Gray...
Definition of "retainer"
Posted on January 30, 2008Retainer: The amount of money that will make your lawyer as interested in your case as you are. --Justice Michael Bender, Colorado Supreme Court This should be in The Devil's Dictionary by Ambrose Bierce, but it's not. Want the long, boring definition? Go to Lectric Law Library.
Lawyer on sabbatical and fails to show for murder trial
Posted on January 28, 2008A Las Vegas lawyer who decided to take a sabbatical also decided to not show up for a murder trial, telling the prosecutor that the judge can do what she wants to him. RISKING SANCTIONS: 'Heavy Hitter' in tough spot / Colleagues question why attorney skipped first day of murder trial...
"Counsel or Client--Who's in Charge?
Posted on January 27, 2008In the Winter 2008 ABA's Criminal Justice magazine is an article by Peter A. Joy & Kevin C. McMunigal, "Counsel or Client--Who's in Charge?" It is not yet posted on the ABA's website.
Civil discovery violation costs $8.5M; "lawyers not hired guns"
Posted on January 26, 2008"'An attorney . . . is not a hired gun required to carry out every direction given by the client.'" In re Marriage of Gong and Kwong, 157 Cal. App. 4th 939, 69 Cal. Rptr. 3d 150, 158 (1st Dist. December 6, 2007), quoted in Qualcomm Inc. v. Broadcom Corp...
Ethics hotline can create A-C relationship
Posted on January 23, 2008From Law.com: Lawyer-Client Relationships Can Arise From Legal Hotline Calls, Panel Rules. This involves N.J. Opinion 712 which is not yet posted on the Rutgers website.
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