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Criminal Law

Law Of Criminal Defense

News, information, ethics opinions and analysis relating to criminal defense, legal ethics and professional responsibility.
By John Wesley Hall, Jr.

Post Frequency: 11.2/day

Last Entry: March 25, 2011 at 18:32:28

MN jail recorded attorney-client conversations

Posted on March 13, 2008
Minnesota 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, 2008
Intentionally 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, 2008
Rhea 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, 2008
A 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...

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Attorney-client and work product privilege to seized materials must be promptly asserted or it is waived

Posted on March 06, 2008
Attorney-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, 2008
A 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, 2008
Lawyer 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, 2008
Update: 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, 2008
Failure 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, 2008
With 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, 2008
From 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, 2008
From 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, 2008
ABAJournal.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, 2008
Remember 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, 2008
Former 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, 2008
Long-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, 2008
In 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, 2008
On 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, 2008
In 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, 2008
Pop 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, 2008
CA9 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, 2008
A 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, 2008
AEDPA 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, 2008
Defense 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, 2008
A 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, 2008
Lying 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, 2008
On 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, 2008
Client 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, 2008
Failure 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, 2008
A 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...

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