NJ has suspended for one year a lawyer accused of offering to trade sex for fees in bankruptcy cases, although the clients didn't take him up on it. In Matter of Witherspoon, D-157-08 (N.J. July 29, 2010). See ABAJ.com.

In the June 2010 Champion (not yet online): "Compassion and the Criminal Defense Attorney" by Steven R. Morrison.

"The constitutional right to present a defense is not satisfied simply because some defense, any defense, is presented." Jackson v. Norris, 4:08-CV-03319 GTE-JTK, at 13 (E.D.Ark. July 20, 2010) (Eisele, J.) (holding that Arkansas Supreme Court's limits on defense evidence by construction of its rape shield statute violated the right to present a defense).

On Law.com today: Courts Differ About Retroactive Effect of High Court Counsel Ruling by Noeleen G. Walder.

Defense counsel is not ineffective for not being the best possible criminal defense lawyer. "the Constitution does not ensure that every defendant receives the benefit of superior advocacy--how could it, given that half of all lawyers are below average?" Hale v. United States, 2010 U.S. Dist. LEXIS 73604 (N.D. Ill. July 22, 2010):

With this in mind, although Hale has broken his argument into nine "instances" of ineffective assistance (nearly every instance consisting of several different allegations of error), one overarching theme permeates almost every allegation in one way or another. This makes an overall comment on that theme appropriate, that is, a look at the forest before getting lost in the trees. The theme, stated as the first "instance" of ineffective assistance (with six sub-allegations of error), is that, with respect to Hale's conviction on the solicitation count in violation of 18 U.S.C. 373, his counsel's performance fell below the level of competence required because he pursued the wrong defense, and not Hale's "best" and "true" defense. Hale argues that if his attorney had pursued Hale's "actual, bona fide defense which was much stronger," taking that course "would likely have resulted in Mr. Hale's exoneration." (DE # 18 at 13.)

This argument, to be blunt, is preposterous. First, because it is built entirely on the incorrect premise that if his attorney failed to pursue Hale's "best" defense, that automatically equals ineffective assistance of counsel. That premise finds no support in the law governing ineffective-assistance claims. As long as Hale's attorney utilized a defense strategy that was not so misguided that it fell outside the wide range of professional competence, Hale received constitutionally-effective representation. As the Court of Appeals has remarked, "the Constitution does not ensure that every defendant receives the benefit of superior advocacy--how could it, given that half of all lawyers are below average?" Castellanos v. United States, 26 F.3d 717, 719 (7th Cir. 1994).

Back in 2007 or so, I testified that a public defender was duty-bound to say he could not proceed with a trial he was appointed on two hours earlier, and the lawyer could not be held in contempt. The contempt judgment was set aside on appeal. State v. Jones, 2008 Ohio 6994, 2008 Ohio App. LEXIS 5860 (11th Dist. December 31, 2008), discretionary appeal not allowed 121 Ohio St. 3d 1502, 2009 Ohio 2511, 907 N.E.2d 325 (June 3, 2009). The judge did not run for reelection, and he was disciplined and briefly suspended as a lawyer for his conduct in other cases for being heavy-handed against other defense lawyers, favoring the prosecution, and manipulating the record for appeal. Disciplinary Counsel v. Plough, 2010 Ohio 3298 (Ohio July 21, 2010). As to one count:

{¶ 13} Respondent’s conduct in expressing his personal opinion on a factual issue to be resolved by the jury and in castigating defense counsel during closing argument caused defense counsel to forfeit closing argument, thereby prejudicing the defendant and adversely affecting public confidence in the judicial system. Therefore, the parties stipulated, the board found, and we agree that respondent violated Canon 1 (requiring a judge to uphold the integrity and independence of the judiciary), 2, and 3(B)(4) of the former Code of Judicial Conduct.

In an eyewitness ID case, it was IAC for defense counsel to fail to object to the prosecutor’s eliciting that defendant refused to consent to taking DNA evidence and then argue in it close. The other IAC claims are moot by the granting of a new trial. State v. Banks, 2010 Wisc. App. LEXIS 561 (July 21, 2010).

For CJA lawyers, even federal defense lawyers, the Federal Defender's Office of Defense Services Training Branch has added materials online. It is added to the sidebar.

Armstrong playing it safe by hiring defense lawyer in NewsDay.

San Jose defense attorney convicted on five money-laundering counts, by Howard Mintz:

Once a prosecutor who put criminals behind bars, San Jose lawyer Jamie Harley now finds herself on the other side of the legal system and facing the prospect of time in prison.

A federal jury in San Jose on Tuesday convicted Harley of five counts of laundering money for a former client, punctuating a nearly two-week trial and almost three days of tense deliberations that for a time appeared deadlocked.

. . .

A federal grand jury indicted Harley more than two years ago, accusing her of laundering more than $100,000 for Christian Pantages, a client who wound up pleading guilty to charges in the case and testifying against her during the trial. Prosecutors alleged that Harley laundered money from Pantages' illicit business trafficking in stolen computer equipment, after he had been charged with state crimes related to the theft ring.

Outside the courtroom, jurors indicated they simply could not believe an experienced, savvy attorney such as Harley would not know what she was doing with her client's money.

A lawyer was suspended for 30 days for having sex with a client that started in a marriage dissolution case and he was relieved from that but represented her in criminal proceedings. There is no per se rule that sexual relations prejudices the administration of justice, but the marriage dissolution case is aggravating. Supreme Court Attorney Disciplinary Board v. Monroe, 10–0193 (July 16, 2010):

Monroe had a sexual relationship with his client that spanned several weeks. Cf. Comm. on Prof’l Ethics & Conduct v. Durham, 279 N.W.2d 280, 285–86 (Iowa 1979) (publicly reprimanding attorney who had inappropriate physical contact with client during prison visit with client). There is no gray area with respect to the prohibition of such conduct, no nuance subject to differing interpretations. See Marzen, 779 N.W.2d at 767 (“Our ethics rules are clear, and our cases have consistently and explicitly condemned sexual relationships between an attorney and a client.”); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Furlong, 625 N.W.2d 711, 714 (Iowa 2001) (“Professional responsibility involves many gray areas, but sexual relationships between attorney and client is not one of these.”). Therefore, the ethical violation is obvious and should have been obvious to Monroe before he engaged in sex with his client.

. . .

Clearly, Monroe needs a better understanding of his ethical obligations, the vulnerability of clients under the stress of a dissolution or facing criminal charges, and the impact a sexual relationship between him and his client has on his client and his own ability to professionally represent that client. Without this knowledge, Monroe poses a risk to the public. ... Taking all of the pertinent factors [omitted] into consideration, we concur in the commission’s recommendation that Monroe’s license to practice law in this state be suspended for thirty days.

On ABAJ.com: Lawyer Says She Didn’t Know Client Funds Were Tainted; Prosecutors, Client Say She Did, by Mark Hansen, as the case of the San Jose criminal defense lawyer on trial goes to the jury.

Is veteran San Jose, Calif. criminal defense lawyer Jamie Harley a conniving crook who knowingly laundered money on behalf of a dirty client, as prosecutors allege, or an overly trusting person who didn't know what her client was up to, as she and her lawyers suggest?

The answer rests with a federal jury in San Jose, which began deliberations Thursday in a high-stakes money laundering trial against the prominent 53-year-old lawyer, better known in local legal circles by her previous name, Jamie Harmon, the San Jose Mercury News reported Thursday.

Supreme Court tosses suit over public defenders by Doug Guthrie in The Detroit News:

Lansing --The Michigan Supreme Court reversed itself today and threw out a lawsuit that was aimed at holding the state responsible for failure to provide adequate funding to hire lawyers for poor people accused of crimes.

The state's high court in April upheld earlier favorable lower court decisions for the lawsuit brought by eight men and women convicted in Berrien, Genesee and Muskegon counties against the state and Gov. Jennifer Granholm. Intended to become a class-action lawsuit that would include all people convicted of crimes in Michigan while represented by court-appointed counsel, the case appeared headed for trial in Ingham County Circuit Court until today's abrupt reversal.

The case is not yet on the Michigan Court's website.

A juvenile accused of a forced sex offense did not have a right to have an attorney or his parents present for execution of a search warrant for his DNA because it was not a "critical stage" of the proceedings. State v. Poitra, 2010 ND 137, 2010 N.D. LEXIS 132 (July 13, 2010):

[*P25] In general, a criminal defendant does not have a constitutional right to an attorney before submitting DNA during the execution of a search warrant. See, e.g., McClain v. State, 410 N.E.2d 1297, 1303 (Ind. 1980) (no right to counsel during execution of a search warrant for internal body secretions, swab emission test does not involve attempts to get testimony or assertions and is not a critical stage of the proceedings); State v. Delisle, 630 A.2d 767 (N.H. 1993) (a defendant does not have a right to an attorney prior to giving blood samples pursuant to a warrant); Hale v. State, 220 S.W.3d 180 (Tex. App. 2007) (no right to counsel when taking a saliva sample for DNA testing because it was not a critical stage of the proceedings). Poitra fails to cite any authority granting juveniles greater protections in executing a search warrant than an adult criminal defendant receives.

[*P26] Unlike cases where a juvenile must consent or refuse to take a chemical test, a juvenile does not have a choice whether to provide evidence when a search warrant has been issued. ...

"Understanding Retainers and Flat Fees," by Doug Richmond. Abstract:

The law generally recognizes lawyers' right to reasonable fees for their services. For years, lawyers seeking to secure payment have requested security retainers from clients. Clients who wish to ensure a favored lawyer's availability to represent them in transactions or litigation have long been able to do so by paying general retainers. In recent years, flat fees have received considerable attention as a means of fairly pricing legal services and ensuring predictability in the cost of those services. Yet retainers and flat fees are often misunderstood by courts and lawyers alike. Many lawyers fail to appreciate the professional responsibility aspects of the various forms of retainers and flat fees that they employ. This article explains the practical mechanics and professional responsibility implications of general retainers, security retainers in all their forms, and flat fees. In fact, only general retainers are truly retainers; security retainers and flat fees are actually fee advances. Unfortunately, the term "retainer" is so engrained in the language of the law that the widespread recharacterization or redefinition of the various lawyer-client financial arrangements that the term is intended to describe probably cannot be achieved.

Hat tip to Legal Ethics Forum.

In Disciplinary Counsel v. Campbell, 2010-Ohio-3265 (Ohio S.Ct. July 15, 2010), the Ohio Supreme Court held that a municipal court judge who was a jerk to defendants and acted sometimes as an adjunct prosecutor was suspended from the practice of law for one year.

On ABAJ.com: Lawyer Takes Plea in Case Over His Hardball Litigation Tactics, Will Be Disbarred, about a California lawyer who, inter alia, sued a witness to make her not testify, but agreed to dismiss the case if she testified favorably.

On ABAJ.com: Blago Defense Plans to Blame Then-Gov’s Lawyers for Steering Him in Wrong Direction:

To the extent that impeached former Illinois Governor Rod Blagojevich may admit any mistaken conduct on the stand if he testifies, as expected, in his ongoing political corruption trial, there is a ready-made target for blame: His lawyers.

His criminal lawyers have notified the Chicago federal court in which his case is being tried that Blagojevich plans to rely on advice of counsel as a defense—that is to say, of course, advice of the counsel on whom he relied as governor, reports the Chicago Tribune's Blagojevich on Trial blog.

To add to December's "To Kill a Mockingbird" post, is NPR's 50 Years Later, 'Mockingbird' Remains Relevant.

Update: On CBS Sunday Morning: "To Kill a Mockingbird": 50 years a classic.

On ABAJ.com, Lawyer Accused of Smuggling Witness Hit List From Jailed Client:

A California lawyer has been accused of smuggling--perhaps unknowingly--a witness hit list from a jailed client. It allegedly contained highlighted names that would have been understood by the recipient to be those of witnesses to be eliminated.

See Silicon Valley Mercury News: Bakery leader's lawyer smuggled witness hit list from jail, court records say

Houston PD decides, without DA's input, that its officers won't talk to defense attorneys without DA's approval.

Great cross-examination material, don't you think?

An attorney's federal conviction for obstruction of justice for counseling a client to destroy a flash drive with evidence that was pertinent to a federal investigation required disbarment because it is essentially the same as the NY offense of tampering with evidence. In re Coren (1st Dept. July 1, 2010) (he was also convicted of mail fraud, wire fraud, and money laundering, but they were not discussed).

Defendants' Faretta hearing lasted "days" and resulted in defendants' self-representation which they insisted upon. After conviction they claimed error. It wasn't. "The record clearly shows that the defendants are fools, but that is not the same as being incompetent." "But the behavior of the defendants during the trial in this case, while occasionally wacky, was not disruptive or defiant. ... The defendants’ courtroom behavior, although eccentric at times, would not have justified, let alone required, the involuntary deprivation of their constitutional right to represent themselves." "They were examined by a psychiatrist and found to be fine. In the absence of any mental illness or uncontrollable behavior, they had the right to present their unorthodox defenses and argue their theories to the bitter end." (The standard of review of the Faretta claim is disputed, but does not have to be decided here.) United States v. Johnson, 08-10147 (9th Cir. July 7, 2010), the first two paragraphs:

Defendants Kurt F. Johnson and Dale Scott Heineman were indicted for conspiracy and multiple counts of mail fraud related to their illegitimate debt-elimination business. They were adamant in their desire to represent themselves and assert an absurd legal theory wrapped up in Uniform Commercial Code gibberish. Both defendants were examined by a psychiatrist and found to have no diagnosable mental disorder. Thereafter, the district court conducted Faretta hearings spanning several days in which the defendants were extensively advised of their right to counsel and the disadvantages of self-representation. The judge practically begged them to accept counsel but they refused. The district court found that the defendants were competent to represent themselves and that such was their constitutional right. Defendants now contend that Indiana v. Edwards, 554 U.S. 164 (2008), decided by the Supreme Court after their trial concluded, required the district court to terminate their self-representation because of what they describe as their “nonsensical” legal “antics” after the trial began. They say they may have been competent to stand trial but not to represent themselves.

The record clearly shows that the defendants are fools, but that is not the same as being incompetent. Under both Faretta and Edwards, they had the right to represent themselves and go down in flames if they wished, a right the district court was required to respect. There was no legal or medical basis to foist a lawyer on them against their will.

Defendants Squeezed by Georgia’s Tight Budget by Adam Liptak on NYTimes.com:

When the State of Georgia ran out of money to pay the lawyers for a man facing the death penalty, the prosecutor, of all people, had an idea. He asked the judge to appoint two overworked public defenders instead, identifying them by name.

The judge went along. The Georgia Supreme Court, by a 4-to-3 vote, endorsed the arrangement in March, saying the defendant, Jamie R. Weis, should have accepted the new lawyers to help solve the state’s budget impasse.

The adversary system does not ordinarily let prosecutors pick their opponents. Indeed, most states do not allow established relationships between lawyers and their clients to be interrupted for any but the most exceptional reasons.

. . .

“If you’re going to seek capital punishment, you’re going to have to pay for it,” Mr. Fletcher said in an interview the other day. “If we’re going to have harsh laws, at least we should fulfill our constitutional obligations.”

As for the Weis case, he asked, “Why should the district attorney be involved in deciding who will represent people?”

Lawyering Suits Pile Up at High Court | During 2009-2010 term, some 20 percent of the decision docket involved cases on lawyering by Marcia Coyle in The National Law Journal, July 6, 2010, on Law.com.

Monroe Freedman in "Judicial Electioneering" writes of the Wisconsin Supreme Court gridlock in State v. Allen, 2010 WI 10 (February 11, 2010) where the court splits 3-3 on the disqualification of Justice Gableman in criminal cases because of the distasteful (not "disciplinable," also a 3-3 vote) ads he ran to unseat Justice Butler. See the First Amendment Center and State Journal.

The ad is on factcheck.org. I've seen the ads. Despicable is a better word, and Gableman isn't worthy of having the first name "Judge" if he has to lie about his opponent to get elected. I wonder how judicial clowns like him get to sleep at night.

A great habeas issue if a criminal case is affirmed 3-3, I'd say.

In the Silicon Valley Mercury News: Embattled San Jose lawyer goes on trial in money-laundering case, with her former client as a witness against her:

A federal grand jury indicted Harley two years ago, accusing her of laundering more than $100,000 for a client who was trafficking in stolen computer equipment. The client, Christian Pantages, pleaded guilty this spring to two felony charges in the case and has agreed to cooperate as a government witness when the trial begins to unfold on Tuesday before U.S. District Judge James Ware.

An Indiana attorney received a private reprimand for hiring a jailhouse lawyer as a legal assistant to help in a PCR case. In re Anonymous, 73S00-0812-DI-626 (Ind. July 1, 2010):

Respondent retained the inmate as an independent legal assistant who was not employed by a specific firm or lawyer. The inmate had limited access to communication, no expectation of privacy, and limited access to research resources. Respondent had limited ability to review the inmate's work. Respondent could not supervise the inmate and could not ensure that the inmate would be able to comply with the Rules of Professional Conduct.