From 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.

Kentucky has overhauled its ethics rules effective July 15th.

Actual 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.T. of March 24, 2008 [discovery, page 52; double quotes from the report, single quotes from J.T.'s statements in the report]:

A. I asked her about dreams.

. . .

"In another dream ... there was a broom. 'My dad (Eddie) said it was just for sweeping, but it was the witch's broom.' 'My dad took it from her and whacked her (the witch).' 'The witch had a green face and stringy black hair, and a red bandana on (her head)' The witch didn't seem like anyone she knew. It ...

Mr. Hall: Objection to the opinion that follows as off the wall.

Mr. Dittrich [Prosecuting Attorney]: That's an objection?

The Court: We've heard plenty already. Overruled.

[Witness continuing:] I wrote "(It doesn't take a Sigmund Freud to understand that the witch is a symbolic representation of her ex-step-father [the defendant], and the witch's broom is part of his anatomy.)"

. . .

Cross examination:

. . .

Q. So, when I see Dorothy in the "Wizard of Oz" have her dream about the mean lady that took Toto on the bicycle and she sees her out the window in the tornado and the lady turns into a cackling witch on a broom and flies away, it really means that Dorothy was actually sexually abused by her ex-stepfather?

A. [no response]

Q. No further questions.

Defendant acquitted of two counts of rape and one of sexual abuse in 45 minutes.

In 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., criminal defense lawyer is raising a host of legal ethics questions for both sides of the bar.

A pretrial hearing last week explored how far federal prosecutors and agents in middle Georgia were willing to go to secure the 40-count indictment of Columbus attorney J. Mark Shelnutt. During two days of testimony, a federal prosecutor acknowledged that he had lied to Shelnutt, and federal agents testified that they enlisted at least one criminal defense attorney as an undercover informant in order to elicit evidence that might be used to prosecute Shelnutt.

A 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).

An 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).

A 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. It registered positive, according to court documents.

The guard repeated the scan, then discovered a plastic bag on the floor near Sommovilla's feet, according to the documents. The bag contained small blue packages wrapped in a rubber band, along with pills.

The substance in the packages was heroin, and three glass pipes and cocaine were found in Sommovilla's car, according to court documents.

A 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.

Herb 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. The lawyer’s duty is not to defy the judge’s orders, but to follow them. It is true enough that judges, like other humans, will make mistakes, and that those mistakes will sometimes be to the detriment of a client’s rights. But that is what Circuit Courts exist to remedy. “Lawyers are required to obey even incorrect orders; the remedy is on appeal.” In re Dellinger, 502 F.2d 813, 816 (7th Cir. 1974). We entirely agree with Judge Greer that “someone must be in control of what happens in a courtroom[,]” and that the someone is “the trial judge, not the lawyer for a criminal defendant nor the lawyer for the United States.” May 30, 2007 Opinion and Order at 23.

In a related case, Moncier was suspended for seven years from practice in the District Court for the facts underlying the conviction, which he admitted. United States v. Moncier, 08-5645 (6th Cir. July 8, 2009) (unpublished).

The prior post is here.

On Legal Ethics Forum: Confidentiality and client suicide.

An ICTR defense investigator was sentenced to 10 months for contempt for violation of court ordered protective measures for witnesses.

New 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.

They argued that the defense should be able to view the images, but only on state-controlled computers.

The court rejected that idea, saying it could stifle the defense's efforts to analyze the evidence.

"The need for defense counsel to have unfettered access to the images and the need for defense experts to maintain anonymity will be compromised by the presence of the state representative who controls the computer," the court said.

The court said the defense team had a right to have the evidence, so long as it complies by certain conditions.

The material cannot be "copied, reproduced, distributed, disseminated, electronically stored and/or electronically uploaded or downloaded or used for any purpose other than the prosecution or defense of this action," according to a court order.

Also, the defense must use a non-networked computer , without Internet access , to view the materials and keep the dedicated computer locked and secure when not in use. Only hand-to-hand delivery of the images is allowed, and only defense attorneys and experts hired by them can view the evidence; Cohen is allowed to see the images, but only in the presence of his lawyers.

At the time of this posting, the opinion is not on the New Jersey courts website.

Lawyer pleads guilty in Pennsylvania case alleging fixing of cases. See ABAJournal.com: Disgraced Pa. Judge: I Didn’t Discuss $3.5M Libel Case.