ABAJ.com: 700 Lawyers Apply for 12 Openings at DA’s Office; Harvard Law Grad Likes the Job by Debra Cassens Weiss:
The District Attorney’s office in California’s Santa Clara County is in the midst of a hiring boom, and it’s able to exercise some selectivity.
The office hired 14 lawyers in the past year, and it has 12 additional openings, the Recorder reports. Seven hundred people have applied. The openings are the result of retirements and funding for seven new positions.
Part of the allure of the job is starting pay of $92,000. Newbie prosecutors make less in the California counties of Contra Costa, Alameda and Orange.
Think the Sentencing Guidelines are complicated? See BLT.com: Judge Rules Veteran D.C. Defense Attorney Doesn't Qualify as Sentencing Expert:
In a long-pending lawsuit against the District of Columbia over the 2002 fatal stabbing of Mikal Gaither as he awaited sentencing in jail, a Washington federal judge ruled (PDF) that a veteran defense attorney could not testify as an expert on what Gaither would have been sentenced to had he survived.
The issue arose in the context of a wrongful death case of a man in jail and his likely sentence of possible probation.
Legal Profession Blog:
An attorney who undertook a series of criminal appeals despite his lack of experience and resulting errors has been suspended for 180 days by the Indiana Supreme Court:
Respondent admits to seven counts of misconduct following the same basic fact pattern. In October 2, 2006, Respondent indicated to the Allen County Public Defender's Office that he was available to handle criminal appeals. He was at the time very inexperienced in appellate law and did not undertake a study of appellate law that would enable him to handle criminal appeals. Over the course of about one year, Respondent was appointed to represent seven criminal defendants in their appeals. In these cases, Respondent committed numerous violations of the applicable appellate rules, characterized by the Court of Appeals as substantial, glaring, and flagrant. In one case, he told his client that the case could not be appealed because he had entered into a plea agreement when, in fact, the appeal had been dismissed for noncompliance with the appellate rules. He failed to heed warnings in the Court of Appeals' decisions pointing out his deficiencies and caused additional, unnecessary work for the Court of Appeals and the Indiana Attorney General.
ABAJ.com: Federal Judge Calls Blago Lawyer’s New-Trial Motion ‘Harebrained,’ Says Contempt Ruling Could Result by Martha Neil:
A federal judge today sharply scolded a lawyer for pointing a finger at the forewoman of a jury that convicted former Illinois governor Rod Blagojevich in a political corruption case, reports the Chicago Tribune.
A motion signed by Lauren Kaeseberg that sought a new trial for Blagojevich based on alleged misconduct by the forewoman was "harebrained," said U.S. District Judge James Zagel.
Contrary to what the motion claims, he never told the jury that questionnaires were confidential, the judge said.
Hence, Kaeseberg owes the forewoman, Connie Wilson, an apology, he stated, for contending that she violated that nonexistent rule during a post-trial discussion with local high school students about her jury service.
Philly.com: Philadelphia defendants with court-appointed lawyers [v. PDs] fare worse in murder trials, study says by Joseph A. Slobodzian and Nancy Phillips:
Poor Philadelphians who are charged with murder and have a court-appointed lawyer are more often found guilty and serve longer prison terms than those represented by public defenders, a new federally funded RAND Corp. study finds.
The study, released Friday night by the California-based think tank, concludes that public defenders in Philadelphia reduce their clients' murder conviction rate by 19 percent and lower the probability their client gets a life sentence by 62 percent.
The RAND researchers, who based their conclusions on a review of cases of 3,157 Philadelphians charged with murder from 1994 to 2005, said the findings show "an enormous and troubling chasm" between the effectiveness of defenders - who have a highly regarded team handling homicide cases - and appointed lawyers.
KC Star: Double trouble for KC lawyer who appeared with client’s twin by Mark Morris:
Maybe on one of television’s many courtroom dramas, a defense lawyer could get a laugh when she sits her client’s identical twin at the counsel table, leading a witness to mistakenly point out the man as the robber.
In the plot, perhaps, the actor judge dismisses the charges, and everybody praises the crafty defense lawyer.
In real life, not so much.
Such a stunt, which happened in the Jackson County Courthouse Wednesday, could get the lawyer tossed from the case, cited for contempt and hauled up in front of a state disciplinary panel.
Not to mention it really ticked off the real-life judge.
See Treatise § 33:23. Substituting another for client without notice to court
It is contempt to substitute another person for the defendant without court approval with the intent to cause a misidentification of the defendant.[FN1] Such substitution amounts to a falsification of evidence in court,[FN2] and it is thus a violation of ethical standards.[FN3]
AJC.com: Settlement expected in public defender suit by Bill Rankin:
A trial scheduled to begin Thursday involving a lawsuit against the state public defender system has been taken off the court's calendar because a potential settlement has been reached, said plaintiffs' lawyer Gerry Weber of the Southern Center for Human Rights.
Legal Profession Blog: False Claim Of Anti-Semitic Slur Draws Suspension:
The New York Appellate Division for the First Judicial Department has imposed a six-month suspension of an attorney for false claims against an officer who had stopped him for speeding:
This disciplinary proceeding arises out of a traffic stop which occurred in New Jersey on July 5, 2007. Respondent, who is an orthodox Jew, was stopped for speeding by a New Jersey State Trooper and given a summons for going 84 mph in a 55 mph zone. Unbeknownst to respondent and his wife, who was in the passenger seat, the stop was videotaped from a camera in the trooper's car. Further, a microphone on the trooper's uniform recorded everything that the trooper said, although it did not capture respondent's statements.
Six days later, the attorney wrote a letter to the traffic court on the stationary of the firm where he was employed as an associate. The letter denied he was speeding and asserted that the officer had called him a "jew kike."
A police investigation exonerated the officer. The attorney later admitted that he had lied.
New research analyzing the policies and procedures for disciplining attorneys in each state and in the District of Columbia shows that prosecutors are rarely held accountable when misconduct occurs. While the Supreme Court's Connick decision severely limits the liability prosecutors face for misconduct, and closes one of the few remaining possible channels of civil prosecutorial liability, the existing "ethics regime" the Court entrusts does not currently protect against or regularly sanction instances of prosecutorial misconduct.
Inspired by the Connick decision, students from the Liman Prosecutorial Misconduct Research Project at Yale Law School examined the basis of the reliance on current attorney-sanctioning mechanisms. The resulting investigation of the disciplinary procedures in various states found that the process and results are largely inadequate for investigating claims of misconduct and holding prosecutors accountable.
The Strickland test for ineffective assistance of counsel does not enact Newton's third law for the presentation of evidence, requiring for every prosecution expert an equal and opposite expert from the defense; rather, in many instances cross-examination will be sufficient to expose defects in an expert's presentation. Crain v. State, 2011 WL 4835656 (Fla. 2011)
Convicted and sentenced to life last month, LaDondrell Montgomery had insisted all along that he wasn't the man identified by eyewitnesses to an armed robbery.
But a Texas jury didn't believe him and found the 36-year-old guilty in the Harris County case. Yesterday, his conviction was reversed and State District Judge Mark Kent Ellis personally apologized to Montgomery, reports the Houston Chronicle.
A few days after he was sentenced, Montgomery's attorney, Ronald Ray, who is also representing him in other pending robbery cases, took a close look at his client's rap sheet and realized he was in jail at the time of the 2009 crime in which he had been convicted. Ray had asked Montgomery before trial where he was during the armed robbery, but he just didn't remember, the newspaper explains.
"It boggles the mind that neither side knew about this during trial," the judge said yesterday, blaming both the prosecution and the defense for not realizing earlier that Montgomery literally had an iron-clad alibi. "Both sides in this case were spectacularly incompetent."
From the Chronicle article:
State District Judge Mark Kent Ellis shook his head as he berated Ray and prosecutors for the oversight.
"It boggles the mind that neither side knew about this during trial," Ellis said Thursday. "Both sides in this case were spectacularly incompetent."
The judge personally apologized to Montgomery, who stood at the bench in an orange jail uniform.
Ray said he has been working to untangle his client from six alleged robberies.
"I have freed a man from a life sentence, so if you want to say I'm incompetent for doing that, I'll accept that with a smile," Ray said.
A transcript has been published of a Dec. 1 arraignment at which a Michigan attorney prevented his client from answering a judge's questions about drug use and was jailed for contempt. It shows a young attorney politely sticking to his position as he is repeatedly and abruptly told to sit down and be quiet and met with sarcastic replies by the judge as he tries to establish his role as counsel and protect his client's rights.
"I'm his attorney, your honor," Scott Millard, 29, told Hudsonville District Court Judge Kenneth Post at one point in the contentious hearing, according to a partial transcript published by the local television station WOOD.
"I'm glad," the judge responded.
Wisconsin Lawyer: The Toll of Trauma by Dianne Molvig:
A groundbreaking study of Wisconsin State Public Defender attorneys examines the effects of “compassion fatigue” – the cumulative physical, emotional, and psychological effects resulting from continual exposure to others’ traumatic experiences. This article discusses factors contributing to the risk any lawyer may face of experiencing its symptoms, and what can be done to mitigate it.
ABAJ.com: Prosecutors Worry That Defense Lawyer Comments Are Putting Witnesses in Danger by Martha Neil:
Unlike their counterparts in New Jersey, who have brought a high-profile criminal case against a prominent defense attorney in Newark, federal prosecutors in Maryland aren't accusing local attorneys of intentionally making trouble for witnesses cooperating with the government.
But at least twice, federal prosecutors say, defense lawyers have inadvertently disclosed sensitive information that led to witness slayings, reports the Baltimore Sun.
At a recent meeting for state and federal prosecutors about witness intimidation, one topic of discussion was persuading judges to keep sensitive information from defense attorneys, the newspaper notes.
ABAJ.com: Law Firm Says Judge Jailed Defense Attorney for Telling Client to Take the Fifth at His Arraignment by Martha Neil:
A Michigan criminal defense lawyer spent about four hours in jail on Friday after being held in contempt for telling a client to assert his fifth amendment right against self-incrimination at his arraignment.
Attorney Scott Millard, 29, who works for Miel & Carr, was supposed to be jailed until Monday. However, he was released Friday after Ottawa County Circuit Judge Edward Post issued an emergency stay of Hudsonville District Court Judge Kenneth Post's contempt order, according to the Grand Rapids Press and the Holland Sentinel.
The articles don't explain whether the two judges are related to each other.
Post apparently had sought information about the 20-year-old client's drug use to determine appropriate bond conditions. However, Millard reportedly told him not to answer, because he might incriminate himself.
A lawyer was publicly admonished, inter alia, (1) for misquoting the record to make two distinct passages seem as one, (2) filing a declaration that supported a potential alibi for the client such that he was potentially a witness and then failed to correct it after the client retracted it, and (3) impugning the district judge’s integrity when arguing against the factfinding. In re Liotti, 10-9504 (4th Cir. December 2, 2011):
Consistent with the foregoing, we are satisfied that the factual allegations in the Notice regarding misrepresentations to the Court are supported by clear and convincing evidence. More specifically, Mr. Liotti made misrepresentations to the Court, in contravention of Rule 8.4 of the New York Rules, which provides, in pertinent part, that a lawyer shall not "engage in conduct involving ... misrepresentation[s]." Liotti’s misrepresentations in the Giannone appeal encompass the following:
• Presenting two unrelated portions of a trial transcript as a single conversation;
• Incorrectly contending that the government had purposefully overestimated the length of Giannone’s trial;
• Inappropriately alleging, without factual support, that two agents involved in Giannone’s investigation had been fired for misconduct;
• Failing to disclose to the court Giannone’s admission that the internet chat had been faked;
• Relying on the Declaration to support the legitimacy of an internet chat of which he had no personal knowledge; and
• Alleging, without factual support, that the presiding judge had suppressed evidence relating to Giannone’s trial.
Because Mr. Liotti’s conduct during the Giannone appeal violated the New York Rules, it also contravened the Local Rules. See Local Rules App. P. 46(g)(1)(c).
As we have heretofore recognized, "our adversary system depends on a most jealous safeguarding of truth and candor." United States v. Shaffer Equip. Co., 11 F.3d 450, 463 (4th Cir. 1993). One of the most important aspects of the work of an appellate lawyer is the obligation to provide the court with a fair and accurate presentation of the relevant facts. Indeed, many of our colleagues on the bench would characterize that obligation as paramount, and there is no valid reason for any lawyer to do otherwise. As John Adams explained in his successful defense of the British soldiers charged in the Boston Massacre, "facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence." David McCullough, John Adams 52 (Simon & Schuster 2001). Our good colleague Judge Niemeyer, writing for the Court in Shaffer Equipment, emphasized the importance of an accurate presentation of the pertinent facts, aptly relating:
Our adversary system for the resolution of disputes rests on the unshakable foundation that truth is the object of the system’s process which is designed for the purpose of dispensing justice. ... Even the slightest accommodation of deceit or a lack of candor in any material respect quickly erodes the validity of the process.
11 F.3d at 457. Misrepresentations of fact by an officer of the court will, if ignored, cast a menacing shadow on a judicial system that is designed to illuminate truth and promote fairness.
He profusely apologized and said it was bad judgment and there was no bad intent, which the court credits, and still finds it "misconduct" enough for an admonishment.
LVRJ: Former court service suspected of scheme with fake certificates by Jeff German:
Police and prosecutors are launching a grand jury investigation into allegations that a former courthouse counseling service provided phony certificates stating prostitutes and other misdemeanor offenders had completed its programs.
Steven Brox, the former owner of the counseling service, United States Justice Associates, and criminal defense lawyer Brian Bloomfield were told in letters from the district attorney's office this week that they were targets of the investigation, courthouse sources confirmed.
The investigation is focusing on felony charges of conspiracy, forgery and filing false public documents, the sources said. The crimes are alleged to have occurred between November 2007 and May 2010.
Certificates were obtained for prostitutes represented by Bloomfield, and some of the certificates wound up in the public court files of the defendants, the sources said.
San Antonio Express-News: Attorney: Trial was tainted by search; Lawyer says prosecutor rifling through defense table ‘unsettled' him by Craig Kapitan:
Defense attorney Tony Reyes was in the middle of calling witnesses for his client's embezzlement trial last January when, during a jury break, a district attorney's office employee served him with a search warrant signed by a judge in another courtroom.
State District Judge Ron Rangel told Reyes to stand back as a prosecutor then began sifting through documents on the defense table, the attorney recalled Wednesday as he testified at a hearing for his client's motion for a new trial.
The tactic — in which Reyes was named a criminal suspect alongside his client on the search warrant — was so unheard of and shocking that it obliterated his ability to zealously defend his client, he and a large team of attorneys have alleged during sporadic hearings over the past month.
Prior post here.
A lawyer may ghostwrite pleadings for pro se inmate litigants. In re Liu, 09-90006-am (2d Cir. November 22, 2011):
We adopt all of the Committee’s findings except those pertaining to Liu’s undisclosed ghostwriting of petitions for review. For the following reasons, we conclude that her ghostwriting did not constitute sanctionable misconduct.
Although there have been a number of recent cases in this Court in which a pro se party’s pleadings were drafted, or appeared to have been drafted, by an attorney, this Court has not yet addressed the issue of attorney ghostwriting. However, a number of other federal courts have found that attorneys who had ghostwritten briefs or other pleadings for ostensibly pro se litigants had engaged in misconduct. In Duran v. Carris, for example, the Tenth Circuit admonished an attorney for ghostwriting a pro se brief for his former client without acknowledging his participation by signing the brief. 238 F.3d 1268, 1271-73 (10th Cir. 2001) (per curiam). The court stated that the attorney's conduct had inappropriately afforded the former client the benefit of the liberal construction rule for pro se pleadings, had shielded the attorney from accountability for his actions, and conflicted with the requirement of Federal Rule of Civil Procedure 11(a) that all pleadings, motions, and papers be signed by the party’s attorney. See id. at 1271-72; see also, e.g., Ellis v. Maine, 448 F.2d 1325, 1328 (1st Cir. 1971) (disapproving of members of bar “represent[ing] petitioners, informally or otherwise, and prepar[ing] briefs for them which the assisting lawyers do not sign, and thus escape the obligation imposed on members of the bar ... of representing to the court that there is good ground to support the assertions made”); Ira P. Robbins, Ghostwriting: Filling in the Gaps of Pro se Prisoners’ Access to the Courts, 23 Geo. J. Legal Ethics 271, 285 and n.73 (2010) (“The federal courts have almost universally condemned ghostwriting.” (collecting cases)).
On the other hand, a number of bar association ethics committees have been more accepting of ghostwriting. The ethics committee opinions described in the following paragraphs are representative of the range of views on the subject and suggest a possible trend toward greater acceptance of various forms of ghostwriting.
The power of the narco dollar: Miami's Federal Jail Overrun With Strippers Posing As Paralegals, Lawyers Say:
Stripteases, sexual favors, booze, porn mags, and fat stacks of cash would be run-of-the-mill in many Miami strip clubs. But at downtown's maximum security Federal Detention Center?
Multiple attorneys interviewed by Riptide say the FDC visitor rooms have been taken over by South American pole dancers posing as paralegals for wealthy drug lords inside. Lawyers hired by the accused narco dons allegedly list the scantily clad women as "legal assistants," and the FDC lets them in. Meanwhile, attorneys who refuse to go along risk losing their clients to lawyers with busty beauties on staff.
"They take off their tops and let the guys touch them," veteran defense attorney Hugo Rodriguez says. "The majority of these young, very attractive women are noncitizens brought in exclusively for the purposes of visiting the FDC. Any lawyer can sign a form and designate a legal assistant. There is no way of verifying it. The process is being abused."
A federal judge in Washington is refusing to allow a man to represent himself in a drug trafficking case, saying he has long tried to manipulate the legal system by creating false conflicts among his lawyers to delay the case as long as possible.
The man, Gregory Sitzmann, was indicted in Washington federal district court in August 2008 on charges he participated in a cocaine distribution conspiracy that spanned more than a decade and involved at least eight countries.
Ever since charges were filed, Sitzmann has vacillated between his desire to represent himself and to have private counsel, U.S. District Judge Paul Friedman said in a lengthy ruling published Monday night.
. . .
But, the judge said, other federal appellate courts have addressed a situation where a defendant “repeatedly alternates between requesting to proceed pro se or to be represented by counsel.” Those courts, Friedman said, have concluded that a defendant who vacillates on the issue waives the right to self-representation.
Washington Examiner: Md. court disbars lawyer who laundered clients' drug profits by Emily Babay:
An Upper Marlboro criminal defense lawyer who pleaded guilty in a money-laundering scheme designed to cover up a client's drug profits has been disbarred.
The Maryland Court of Appeals has ruled that 40-year-old Brian W. Young should be disbarred in the state.
Young pleaded guilty in April in federal court in Alexandria to conspiracy to commit money laundering. An indictment filed in February accused him of helping drug traffickers make their profits appear to be legitimate.
Attorney Grievance Commission v. Young, Misc. Docket AG No. 54 (Md. November 9, 2011) (joint petition).
ABAJ.com: Two NJ Lawyers Are Charged with Structuring Bank Deposits to Avoid Reporting Threshold by Debra Cassens Weiss:
Two New Jersey lawyers are facing accusations that they structured $354,000 in bank deposits to avoid federal reporting requirements.
Goldie Sommer and Edward Engelhart of Sommer & Engelhart in Fairfield surrendered to Internal Revenue Service agents last Wednesday, the New Jersey Law Journal (reg. req.) reports. Bail was set at $100,000 for each lawyer.
A criminal defense attorney who blogs about criminal proceedings, including his clients' cases, violated Virginia lawyer conduct rules by including clients' names in blog posts without their consent, a Virginia State Bar disciplinary committee determined in an order released Nov. 8 (In re Hunter, Virginia State Bar, 3d Dist. Comm., VSB No. 11-032-084907, 11/8/11).
The panel also found that the attorney's blog, This Week in Richmond Criminal Defense, hosted on his law firm's website, constitutes advertising and therefore should have included a disclaimer required by rules governing lawyer advertising.
NYTimes: What They Don’t Teach Law Students: Lawyering, by David Segal:
The lesson today — the ins and outs of closing a deal — seems lifted from Corporate Lawyering 101.
“How do you get a merger done?” asks Scott B. Connolly, an attorney.
There is silence from three well-dressed people in their early 20s, sitting at a conference table in a downtown building here last month.
“What steps would you need to take to accomplish a merger?” Mr. Connolly prods.
After a pause, a participant gives it a shot: “You buy all the stock of one company. Is that what you need?”
“That’s a stock acquisition,” Mr. Connolly says. “The question is, when you close a merger, how does that deal get done?”
The answer — draft a certificate of merger and file it with the secretary of state — is part of a crash course in legal training. But the three people taking notes are not students. They are associates at a law firm called Drinker Biddle & Reath, hired to handle corporate transactions. And they have each spent three years and as much as $150,000 for a legal degree.
BBC: Unreliable Evidence: The Lawyer's Dilemma: Defending the Guilty, Suing the Innocent; Clive Anderson and guests explore the moral and ethical dilemmas faced by lawyers including those required to defend clients accused of rape, murder and other heinous crimes.
Clive Anderson and some of the country's top lawyers and judges discuss legal issues of the day.
The third programme in the series explores the moral and ethical dilemmas faced by lawyers including those who are required to defend clients accused of rape, murder and other heinous crimes. What should a lawyer do if he or she knows or strongly suspects that a client is guilty?
The brutal cross-examination in court of the parents of murdered schoolgirl Millie Dowler raised concerns about the rules that control the limits to which a lawyer can go to defend a client in court. Are the rules fair? Among Clive's guests is Jeremy Moore, the solicitor who had briefed the defence barrister in the Millie Dowler murder trial. He staunchly defends the cross-examination tactics.
The other guests are leading barristers Chris Sallon QC and Dinah Rose QC and Court of Appeal judge Lord Justice Alan Moses, who defend the legal profession against a range of criticisms levelled by the public. Clive Anderson asks if the behaviour of lawyers needs to be more closely regulated or if we can we rely on their professional judgment?
ISSUES: May consent under the “no contact” rule of California Rule of Professional Conduct 2-100 be implied, or must it be provided expressly? If consent may be implied, how is implied consent determined?
DIGEST: Consent under the “no contact” rule of California Rule of Professional Conduct 2-100 may be implied. Such consent may be implied by the facts and circumstances surrounding the communication with the represented party. Such facts and circumstances may include the following: whether the communication is within the presence of the other attorney; prior course of conduct; the nature of the matter; how the communication is initiated and by whom; the formality of the communication; the extent to which the communication might interfere with the attorney-client relationship; whether there exists a common interest or joint defense privilege between the parties; whether the other attorney will have a reasonable opportunity to counsel the represented party with regard to the communication contemporaneously or immediately following such communication; and the instructions of the represented party’s attorney.
Forbes.com: Michael Jackson Death Doctor Can Deduct His Legal Fees by Robert Wood, tax lawyer:
Conrad Murray’s conviction for the death of Michael Jackson may mean Dr. Murray’s legal fees were paid in vain. Harvard’s famed criminal defense lawyer Alan Dershowitz sure thought they did a poor job. Clearly, Dr. Murray’s income and finances may go from bad to worse.
Insurance could pick up the tab. See Jackson doctor’s legal bills issue in Texas court. But assuming Dr. Murray pays his lawyers, can he deduct these considerable fees on his taxes? Probably. After all, this case was about his profession.
ABAJ.com: Prosecutor Served Search Warrant on Defense Lawyer During Trial to Get His Documents by Martha Neil:
In a San Antonio courtroom packed with lawyers attending as spectators, a Texas prosecutor testified today that she had a search warrant served on opposing counsel and his client during a trial in an embezzlement case early this year. The reason why was because she feared he was withholding stolen documents from the government.
Defense lawyer Tony Reyes was representing Kathleen Kavooras Pierce, a hair salon worker who was accused of embezzling from her former employers. Pierce was convicted and is now, represented by another attorney, seeking a new trial due to the mid-trial execution of the search warrant, reports the San Antonio Express-News.
I testified in that case two weeks ago as an expert on legal ethics and the law of search and seizure that everybody screwed this up: the trial judge, the defense lawyer, and the District Attorney. The warrant could have waited because they knew defense counsel had been coming and going with the records, they could have executed it at the end of the day, if not the end of the trial, the trial judge should have monitored this better, defense counsel finished the trial without even objecting.
Cross-posted from www.FourthAmendment.com.
ABAJ.com: Shaken Defense Lawyers Decry Violent Attacks on Two Colleagues in Organized Crime Megatrial by Martha Neil:
For the second time in less than a year, a lawyer representing a defendant in a Canadian organized crime megatrial involving a number of Hell's Angels has been violently attacked near his home in Montreal.
Gilles Doré, 58, was beaten badly in the upscale Outremont area of the city on Friday. He is expected to recover and was able to speak to police over the weekend in his hospital room. However, authorities say there have been no developments in the case since then, the Canadian Press reports.
The motive does not appear clear:
Another defense lawyer, Joseph La Leggia, who was similarly attacked near his Montreal home in December, also represented a defendant in the same trial.
Finally, the links to the ABA Standards have been updated.
For the longest time, I was under the assumption that they just disappeared from the ABA's website because the old links did not redirect, and their search function was not helping. I was given a link to one, and shortened the URL to come up with the list.
The Tennessee Court of Criminal Appeals affirmed a contempt order against a criminal defense lawyer for talking to the co-defendant during a suppression hearing while his lawyer was questioning a witness. The testimony showed that they were acting with an informal joint defense agreement but had not formalized it. State v. Beeler, E2010-00860-CCA-R3-CD (Tenn. Crim. App. October 26, 2011). Still, this should never have happened. When the trial judge asked the lawyer for the co-defendant, he erroneously said that the other lawyer could not talk to his client when they clearly had a joint defense agreement. That was a violation of Rule 4.2, and a rule violation can be a basis of contempt in Tennessee.
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
Barely an hour into Bergrin’s third day of cross-examining Anthony Young, the confessed killer of an FBI informant, U.S. District Judge William J. Martini called a recess in the trial and excused the jury.
Then he lit into Assistant U.S. Attorneys Joseph Minish and John Gay, saying he was “not happy” with their “facial expressions,” and had already privately warned them about it.
“When I rule against you, don’t shake your head,” Martini boomed. “You don’t like my rulings, sit down and keep a straight face.”
Minish said he had objected to yet another off-handed comment from Bergrin about the witnesses’ credibility.
Martini then zeroed in on the government’s star witness and its overall case against Bergrin, 55, of Nutley.
“This man has admitted to lying back and forth all over the place,” the judge said. “Every time he spoke to the FBI, he admitted to lying ... now he’s telling the truth.”
ABAJ.com: Defendant Loses Right to a Lawyer After Allegedly Stabbing 3 of Them with Pencils or Pens in Court by Debra Cassens Weiss:
A judge in Washington state has declared that pencil-and-pen-packing defendant Joshua Monson has forfeited his right to counsel because of three attacks on his lawyers during court hearings.
None of the lawyers was seriously hurt. In the first two incidents, which occurred less than a week apart, Monson was accused of stabbing two different lawyers with pencils he smuggled from jail, HeraldNet.com reports. On Tuesday, Monson grabbed the pen being used by his defense lawyer, Jesse Cantor of Everett, Wash., and stabbed Cantor in the head, witnesses said. (links in original)
I've actually found myself subconsciously moving my pen away from my clients in custody in federal court, or showing up with only one which stays in my hand. Ever considered wearing Kevlar to court to protect yourself from your client? Doesn't do any good when they try to stab you in the head. At least I wear glasses.
A press release from the U.S. Attorney of the District of New Jersey says that an attorney for the Lucchese crime family was indicted with 12 others in a bank bustout RICO. As to the attorney, Donald Manno:
Manno, as Scarfo’s attorney, abused his position to further insulate Scarfo and the Enterprise by deceiving Scarfo’s probation officer and the District Court. Manno’s deception corruptly influenced Scarfo’s supervised release by withholding information from the Probation Office and the District Court regarding Scarfo’s source of income and his contact with convicted felons.
Apparently it's a crime for defense counsel to not tell Probation the truth about your client when asked. Consider that.
Roger Clifford Clapp, Ethics for Advocates: an Overdue Conversation, 80 Miss. L. J. 9 (2010):
Before we get to the easy talk, let me tell you where I come from. I believe the first year of law school should be restruc-tured, renamed, and devoted primarily to "The Ethics of Law." Yes, a whole year for what I believe is a missing essential foundation.
Abraham Moses Fisch, 52, a criminal defense attorney in Houston, was arrested this morning on charges of conspiracy, obstruction of justice, money laundering and conspiracy to commit money laundering, federal prosecutors said. ...
. . .
The indictment, which followed an FBI and IRS investigation, alleges that from August 2006 to Oct. 19, 2011, Fisch, Williams and Bertman conspired to defraud defendants who faced federal criminal charges in five Houston cases.
From the U.S. Attorney’s Office announcement:
According to the indictment, Williams, although not an attorney, held himself out as someone who could resolve criminal cases through his contacts with government officials. Williams, Fisch and Bertman worked together to solicit federal criminal defendants as clients under false pretenses. They claimed to the defendants that Williams had the power to cause their criminal charges to be dismissed or their sentence reduced if they would hire Fisch as their attorney, pay a large sum of money to Fisch and Williams and then provide Williams with information about their crimes. Williams claimed he would then pass that information along to contacts in various federal agencies. In return, Williams claimed his contacts would cause the criminal charges against the defendants to be dismissed or their sentences reduced.
By filing a post-conviction petition alleging ineffective assistance of counsel, the defendant has waived attorney client privilege to the extent necessary for the state to defend against the claim. The grant of a new trial is reversed and the petition remanded for reconsideration. State v. Cantrell, 2011 Ark. 449 (October 27, 2011):
In filing a petition under Rule 37.1, Cantrell argues that he was denied a fair trial because he did not receive effective assistance of counsel. By filing the petition, he put in controversy the professional conduct of counsel, and as a condition of pursuing that petition, he must waive all attorney-client privilege with respect to the issues raised in the petition. See Jacobs v. State, 253 Ark. 35, 484 S.W.2d 343 (1972) (holding in a postconviction proceeding that when a client asserts a breach of duty by his attorney, the attorney is no longer bound by his obligation of secrecy and may testify as to the facts).
Criminal defense client's signing security agreement for fee started SOL period anew, but it did not convert an oral contract into a written contract. It was just a security agreement, not a fee agreement. Thus, the suit against the client was untimely. Still v. Perroni, 2011 Ark. 447 (October 27, 2011).
"We will not further 'review the record to see how many objections were raised by defense counsel or how clever was the cross-examination of the state's witnesses. To be effective, counsel need not be a wizard. Some cases are simply hard to defend." State v. Brazeal, 109 N.M. 752, 757, 790 P.2d 1033, 1038 (Ct. App. 1990).
Michigan Public Radio: Michigan's public defense system under review by Rick Pluta:
A state commission has begun work to ensure that everyone who is accused of a crime in Michigan gets an adequate legal defense.
Michigan allows every county to handle its own public defender system.
The system is frequently cited as one of the worst in the country.
That’s because some counties do a good job of ensuring that even people who cannot pay get a good lawyer. Other counties are more haphazard.
There are also no training standards for public defenders.
Philly.com: In life and death cases, costly mistakes by Nancy Phillips:
Willie Cooper, convicted of strangling his brother's girlfriend to death in a Germantown apartment, was awaiting a jury's decision on whether he should be sentenced to death, when his lawyer rose to speak on his behalf.
Citing the biblical passage "an eye for an eye," the lawyer told jurors that the ancient edict called for the death penalty only in the killing of a pregnant woman.
Cooper had killed a pregnant woman.
Inexplicably, his lawyer had forgotten that.
The jury voted to impose the death penalty.
Cooper's case is among more than 125 capital murder trials in Pennsylvania - 69 in Philadelphia alone - that state and federal appeals courts have reversed or sent back for new hearings because mistakes by defense lawyers deprived the accused of a fair trial.
ABAJ.com: Florida Bar Details Pending Complaints Against Casey Anthony’s Lawyer by Debra Cassens Weiss:
Two ethics complaints pending against Casey Anthony’s lawyer deal with claims he failed to disclose information during the trial process.
Florida Bar spokeswoman Francine Walker explained the nature of the complaints against Jose Baez, which have been forwarded to a grievance committee, the Orlando Sentinel reports.
One complaint alleges Baez failed to share discovery information with prosecutors, the story says. The other claims Baez failed to disclose that the state corrections department was allowing Casey Anthony to serve probation for a check-fraud case while in jail awaiting trial in the death of her daughter. The judge in the murder trial, Belvin Perry, later took over the check case and required Anthony to serve probation outside of jail.
Law.com: No Civil Remedy for Public Defender Attacked by Client at Mental Hospital by Michael Booth:
A public defender attacked by her client, a patient at a mental hospital, has no viable federal constitutional rights claim against the state, an appeals court ruled on Tuesday.
Although Department of Human Services officials' indifference to known dangers created a dangerous working environment at Ancora Psychiatric Hospital, they are entitled to qualified immunity because the plaintiff was not entitled to an affirmative duty of care, the Appellate Division held in Gormley v. Wood-El , A-3894-09.
An Alabama law firm has accused three of its former Washington-office attorneys of stealing confidential client information from the firm and using it to establish a competing firm with poached clients, according to a complaint in the U.S. District Court for the District of Columbia.
Slocumb Law Firm, which specializes in personal injury cases, filed suit on Wednesday against Zeke Roeser, Morgan Whitlock and Kevin Gracie of Roeser & Whitlock, seeking $4.5 million in damages. Founding partner Michael Slocumb also filed a motion for a temporary restraining order.
Law firm breakups can be like divorces--some easy, some ugly.
Lawyer's blog gets him a beef for writing about his own cases: Richmond attorney's blog under fire from Va. State Bar:
In what appears to be the first case of its kind, a Richmond lawyer is challenging the Virginia State Bar's authority to regulate his blog as a violation of his free-speech rights.
The issue comes to a head at a public disciplinary hearing Tuesday, when a committee of lawyers and lay people will listen to arguments from the bar and lawyer Horace Frazier Hunter.
This is the reason I've only written about one case of mine, and that was with permission of the client. I find it unseemly to write about my own cases.
Finally, the Paul W. Bergrin trial begins, on North Jersey.com: Lawyer's murder trial set to start:
Noted criminal defense lawyer Paul W. Bergrin goes before a jury today in the biggest legal battle of his life — defending himself against charges of facilitating the murder of a federal witness in a drug case against one of his clients.
Under tight security, the man prosecutors say ran his Newark law practice like a criminal enterprise will finally get his day in court after nearly 2 1/2 years in custody.
ABAJ.com: SC Officials to Investigate Defense Lawyer’s Claim That Deputy Secretly Taped Conversation by Mark Hansen:
South Carolina officials have been asked to investigate a defense lawyer's claim that a sheriff's deputy secretly taped her conversation with a prosecutor in a double-murder case.
Circuit Court Judge Michael Nettles made the request after a hearing Wednesday on Florence, S.C. Defense lawyer Rose Mary Parham is seeking a motion to dismiss the case against her client because of the alleged taping, SCnow.com reports.
"[The act of recording] is inappropriate," Nettles said. "I can't imagine that anybody with any sense would have requested that they do something like that."
Under the federal eavespdropping statute, isn't that a crime?
The D.C. Court of Appeals issued punishments to two attorneys Thursday in different, highly publicized cases.
A three-judge panel of the court disbarred David Safavian, the former chief of staff of the U.S. General Services Administration who was convicted of obstruction of justice and making false statements in the Jack Abramoff scandal.
The panel concluded Safavian's conduct amounted to “moral turpitude.”
“Evolving Standards of Reasonableness: The ABA Standards and the Right to Counsel in Plea Negotiations” by Margaret Colgate Love.
Here is the abstract:
The ABA Criminal Justice Standards have been recognized by the Supreme Court as one of the most important sources for determining lawyer competence in Sixth Amendment right to counsel cases. Because the constitutional test is whether defense counsel’s performance was “reasonable” under “prevailing professional norms,” it is necessarily an evolving one. Padilla v. Kentucky underscores the defense bar’s stake in participating in the ABA standard-setting process to guide the development of their obligations in plea negotiations. In addition, to the extent the courts give the ABA Standards credence in judging ineffective assistance claims, they can be powerful catalysts for changing the behavior of other actors in the plea process, as well as system norms. The Standards can also be leveraged to help the defense bar gain access to the additional resources necessary to comply with the constitutional obligations of defense lawyers post-Padilla.
Two developments give this problem particular urgency: One is the proliferation of status-generated “collateral” penalties affecting every activity of daily life, penalties that are frequently more severe than any sentence potentially imposed by the court. The other is the broad applicability of these collateral penalties to misdemeanants and other minor offenders who in the past would have been spared the reduced legal status and stigma reserved for convicted felons.
Part I of this Article analyzes the Supreme Court’s treatment of the ABA Standards in Sixth Amendment cases, and Part II discusses the manner in which the Standards are developed and approved as ABA policy. Part III describes the provisions of the Standards that govern plea negotiations, and proposes their expansion in light of the new mandate given defense lawyers by Padilla. It concludes by urging greater defender participation in the Standards process to shape how the Sixth Amendment standard evolves, and to maximize Padilla’s systemic effect.
The Federal Circuit held today that disqualification of counsel after properly waived conflict correctable by mandamus. In re Shared Memory Graphics LLC, No. 2011-M978 (Fed. Cir. September 22, 2011).
ABAJ.com: 7th Circuit Slaps Lawyer for 345-Word Sentence and Briefs Full of ‘Gibberish’ by Debra Cassens Weiss:
A federal appeals court is so aggravated by the quality of an Illinois lawyer’s legal writing that it has ordered him to show cause why he shouldn’t be barred from practicing before the court.
Lawyer Walter Maksym was “unable to file an intelligible complaint,” despite three tries given him by the trial court, according to the opinion (PDF) by the Chicago-based 7th U.S. Circuit Court of Appeals. “Each iteration of the complaint was generally incomprehensible and riddled with errors, making it impossible for the defendants to know what wrongs they were accused of committing,” the appeals court said. In addition, “Maksym’s appellate briefing is woefully deficient, raising serious concerns about his competence to practice before this court,” the court added.
From the opinion:
We affirm. The district court was well within its discretion to reject the second amended complaint and dismiss the case with prejudice. Each iteration of the complaint was generally incomprehensible and riddled with errors, making it impossible for the defendants to know what wrongs they were accused of committing. Maksym’s persistent failure to comply with basic directions from the court and his open defiance of court orders amply justified the judge’s decision to dismiss with prejudice. Moreover, like his pleadings in the district court, Maksym’s appellate briefing is woefully deficient, raising serious concerns about his competence to practice before this court. Accordingly, we order Maksym to show cause why he should not be suspended from the bar of this court or otherwise disciplined under Rule 46 of the Federal Rules of Appellate Procedure. Finally, we direct the clerk to send a copy of this opinion to the Illinois Attorney Registration and Disciplinary Commission.
Examples are included, including a page long sentence. Counsel was also ordered to show cause why he should not be suspended from the Seventh Circuit.
Miami Herald: Miami state criminal defense office under fire after controversial firings by David Ovalle:
Miami’s four-year-old Conflict and Civil Regional Counsel office has a scrappy mix of respected attorneys – veteran and young – who are entrusted to defend the poor who cannot afford to hire lawyers.
It took no more than an after-hours birthday toast of Cabernet to plunge the office into turmoil.
Three highly regarded defense lawyers were fired earlier this month for drinking on the job, according to director Joseph P. George Jr., who built the 50-lawyer, state-funded office from the ground up, but now is on the verge of losing his job – possibly to one of the ousted attorneys.
The firings have cast a harsh spotlight on George’s leadership of an office that represents a crucial part of Miami-Dade and Monroe counties’ criminal justice system, an agency that has represented over 25,000 poor clients since it was created in 2007.
Law.com: Fla. Bar to Lawyers: Play Nice:
New members of the Florida Bar will have to pledge fairness, integrity and civility in all communications when taking their oaths of office from now on.
The Florida Supreme Court, concerned about increasing incivility among lawyers, altered the Florida Bar's lawyer's oath in a unanimous ruling, "recognizing the importance of respectful and civil conduct in the practice of law."
ABA Formal Opinion 11-461 August 4, 2011
Advising Clients Regarding Direct Contacts with Represented Persons
Parties to a legal matter have the right to communicate directly with each other. A lawyer may advise a client of that right and may assist the client regarding the substance of any proposed communication. The lawyer’s assistance need not be prompted by a request from the client. Such assistance may not, however, result in overreaching by the lawyer. Read Full Opinion
A Pennsylvania lawyer has so far been unsuccessful in his efforts to obtain an audiotape and other original materials that he contends would help prove his claim that transcripts of his client's Washington County murder trial were altered. So attorney Noah Geary is now pursuing an appeal of adverse superior court rulings with the state's highest court.
Meanwhile, he is facing a defamation case filed by the stenographer who, he alleged, made changes at the direction of the judge who presided over the murder trial, according to the Observer-Reporter.
Even a lawyer has a right to a Miranda warning. His profession is relevant to voluntariness, but it is not determinative. Here, “the only weight this Court attaches to Jones’s job as an attorney is that his knowledge of his rights suggests he spoke to agents voluntarily.” United States v. Jones, 2011 U.S. Dist. LEXIS 101429 (E.D. Pa. September 8, 2011):
Second, Jones testified that he knew that he could end the agents’ questioning, and he knew that he had the right to call a lawyer. This knowledge is relevant to the voluntariness of his statements to law enforcement. The Government, however, makes too much of Jones’s status as a lawyer when it contends that because Jones is a civil rights attorney with particular expertise in Fourth Amendment issues, he should know when he is in custody under Miranda. (Gov't Opp'n to Mot. to Suppress at 5-6.) Jones disputed his expertise in the area and noted the stress and strain caused by having agents enter his home and question him and his wife. Some courts, when performing a Miranda analysis, have considered whether the person questioned is a lawyer. See United States v. Wilson, 901 F. Supp. 172, 175 n.3 (S.D.N.Y. 1995) (using reasonable lawyer standard to determine if custodial interrogation occurred); United States v. Zolp, 659 F. Supp. 692, 721 (D.N.J. 1987) (“It is not unreasonable to assume a criminal defense attorney understands and is aware of the consequences of a consent to an F.B.I. agent's request for permission to search his briefcase.”); but see United States v. Farinacci-Garcia, 551 F. Supp. 465, 476 (D.P.R. 1982) (“The government’s contention that, because [the defendant] is a lawyer who is necessarily cognizant of his rights, the absence of Miranda warnings prior to custodial interrogation may somehow be excused has no support in constitutional case law. No consideration relevant to the constitutional protection against self-incrimination suggests any deviation based on distinct groups or classes of individuals who have knowledge of the law. The protection exists for all.”).
While Jones’s profession is relevant to whether he spoke voluntarily, his job is not the basis for the Court’s holding. The punishment for earning a law degree is not a diminished right to Miranda warnings. When a knock on the door reveals federal agents armed with a search warrant, even a lawyer is bound to display concern. Thus, the only weight this Court attaches to Jones’s job as an attorney is that his knowledge of his rights suggests he spoke to agents voluntarily.
Two West Virginia lawyers have been federally charged with wire fraud in unrelated cases concerning their alleged overbilling as court-appointed public defenders.
Jeremy Vickers, 36, allegedly billed for work days exceeding 24 hours on 173 occasions, while Christopher Bledsoe, 33, is accused of forging a judge's signature on payment invoices and other court documents supporting inflated invoices, reports the Charleston Gazette.
American Lawyer: Ex-Greenberg Traurig Partner Sentenced to Six Years for Overbilling Chicago Suburb by Brian Baxter:
Mark McCombs, a former government affairs partner at Greenberg Traurig in Chicago, was sentenced to six years in prison Monday after pleading guilty to overbilling the suburb of Calumet Park, Ill., by more than $100,000.
The 51-year-old McCombs, who served Calumet as special counsel on tax and municipal finance issues, was charged in March 2010 after inquiries made by a local school superintendent and discrepancies found in presentations made by McCombs called attention to the fraud, according to reports by the Chicago Tribune and Chicago Sun-Times.
Lawton P. Cummings & Paul T. Stepnowsky, My Brother's Keeper: An Empirical Study of Attorney Facilitation of Money Laundering Through Commercial Transactions, 2011 J. of the Prof. Law. 1 (2011), an ABA publication:
Through the analysis of a sample of money laundering cases from the Second Circuit, this article empirically examines whether lawyers are involved knowingly or unknowingly in transactions that serve to launder illicit funds, and it considers the implications of the study on whether lawyers should serve as gatekeepers against money laundering.
The roller-coaster ride continues for a California attorney charged with helping a law firm client launder money.
Following a federal jury conviction in July (jurors deadlocked on a conspiracy charge), Jamie Harley, previously known as Jamie Harmon, saw the verdict in the San Jose case set aside by Chief U.S. District Court Judge James Ware, due to his own faulty jury instructions, reports the San Jose Mercury News.
The government will retry.
NLJ: California attorney convicted of accepting bribe by Amanda Bronstad:
A California attorney has been convicted on charges that he accepted $50,000 in cash from the target of a federal investigation in exchange for convincing his client, a witness, to lie to the grand jury.
Alfred Nash Villalobos, who lives in South Lake Tahoe, Calif., but was an attorney in West Hills, Calif., at the time of the alleged bribery scheme, was found guilty on Aug. 31 of one count of obstructing a grand jury investigation and one count of interfering with interstate commerce by extortion.
After defendant asked for three appointed attorneys to be excused from his case because of inability to get along with the lawyers, he was warned that he wasn’t getting a fourth lawyer, and he’d have to go pro se or retain counsel if it happened again. Just before the suppression hearing, the third lawyer made a motion to be relieved because he had irreconcilable differences with defendant. The court granted the motion but ordered the lawyer to remain as standby counsel for the suppression motion. Defendant was not unconstitutionally denied his right to counsel at the suppression hearing. Long v. United States, 2011 U.S. Dist. LEXIS 98348 (E.D. Tenn. August 31, 2011).
Defense counsel’s admission of guilt on some less serious counts was a reasonable tactical decision where the proof was overwhelming and the goal was to get acquittal on a racketeering count. United States v. Thompson, 2011 U.S. Dist. LEXIS 97779 (D. Colo. August 31, 2011):
Trial counsel’s statements at closing argument were “patent admissions of guilt on ... substantive ... charges.” Ordinarily such an “admission by counsel of his client’s guilt to the jury represents a paradigmatic example of the sort of breakdown in the adversarial process that triggers a presumption of prejudice.” However, “[t]he focus must be on whether, in light of the entire record, the attorney remained a legal advocate of the defendant who acted with undivided allegiance and faithful, devoted service to the defendant.”
Challenging only some of the potential counts, “[d]epending on the particular characteristics of such an effort, ... would not necessarily amount to ineffective assistance.” “‘Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments ... and focusing on one central issue if possible.’ This insight is equally applicable to closing arguments made at trial.”
The prosecution’s evidence at trial regarding Movant’s involvement with the drug scene at the Alpine Motel was “overwhelming.” Trial counsel’s tactic of “accepting responsibility” was intended to convey that, although Movant was guilty of discrete crimes, the prosecution did not sufficiently prove an organized illegal activity. Given the strength of the case against Movant, it was reasonable for counsel to adopt a tactic that would sacrifice some liability for credibility in the jury’s eyes in an effort to prevent conviction on the crimes that involved life sentences.
Defendant in his § 2255 failed to show that defense counsel was ineffective for not arguing that he had a reasonable expectation of privacy in a hospital room. He cited no controlling case law. The law is unsettled on that at best, and no case from the Eighth Circuit is in point. Defense counsel is [essentially] not charged with being ineffective for not arguing that the law should be changed. New v. United States, 2011 U.S. App. LEXIS 18157 (8th Cir. August 31, 2011):
This court has held that an attorney's failure to anticipate changes in the law does not constitute constitutionally ineffective assistance. Parker v. Bowersox, 188 F.3d 923, 929 (8th Cir. 1999). Then in Fields v. United States, 201 F.3d 1025 (8th Cir. 2000), this court reached the same conclusion about unsettled issues. We denied relief to a § 2255 movant who argued that his attorney's failure to object to the district court's jury instructions deprived him of effective assistance of counsel. See id. at 1026. We noted that neither the Eighth Circuit nor the Supreme Court had decided whether the jury instructions at issue were adequate, and that two other courts of appeals had addressed the issue and come to contrary conclusions. We then said the following:
Given this split of authority at the time Fields was tried, and the complete lack of Eighth Circuit or Supreme Court authority on the subject, it must be said that counsel's performance fell within the wide range of professionally competent assistance. ... If counsel's failure to anticipate a change in the law will not establish that counsel performed below professional standards, then counsel's failure to anticipate a rule of law that has yet to be articulated by the governing courts surely cannot render counsel's performance professionally unreasonable. Moreover, Fields has not directed our attention to Supreme Court or Eighth Circuit precedent (and our research has located none) that can be said to clearly portend the law ... as Fields would have us state it.
Defense counsel in a sexual abuse case did not act competently in her failure to obtain medical records and photographs noted in the prosecutor's discovery from a doctor performing a medical exam where those pictures and records would have directly contradicted the victim's claim defendant had sexual intercourse with her 100-200 times. In addition, defendant had the HSV herpes virus, and no expert was called to say that the victim should have contracted it with that much sexual contact. In re Hill, D058671 (4th Dist. August 9, 2011), ordered published August 29, 2011.
California lawyer was convicted yesterday of extortion and obstruction of justice for allegedly seeking $107,000 in exchange for a client's favorable false testimony concerning the target of a grand jury investigation of immigration fraud.
Alfred Nash Villalobos, 46, could get as much as 30 years when he is sentenced in December in the Los Angeles federal district court case, reports the Sacramento Bee.
Update: The Baltimore lawyer pled guilty today and resigned from the bar.
A proposal in Tennessee seeks to cut down on indigent defense costs by giving some of the work to lawyers who bid for the right to do the work on a fixed-fee basis.
Critics claim the proposal would put justice up for sale to the lowest bidder, the Knoxville News Sentinel reports. Private lawyers would participate in “a highway contract-style bidding process” under the proposal by the Tennessee Supreme Court, the Tennessean says in its story on the controversy.
A Maryland criminal defense lawyer is facing a federal tax evasion case after allegedly hoarding $1.3 million in cash payments from clients over a six-year period in order to conceal his income.
Federal authorities found $1.5 million in two safes when they raided the home and law office of Stanley Needleman in April, reports the Baltimore Sun.
An admittedly angry criminal defense attorney has been charged with a misdemeanor concerning an altercation he had with a female prosecutor outside a Pennsylvania district judge's courtroom.
David A. Nicholls, 62, allegedly swore and raised his arm to Lehigh County deputy district attorney, the South Whitehall Patch reported. He is charged with disorderly conduct.
Nicholls said the prosecutor tried to physically bar him from entering the court with his client—apparently because she claimed there was a conflict of interest—which made him angry.
"They have all the power," he said of the prosecutor's office. "They're never going to admit they're wrong."
From the ABA's Center on Professional Responsibility today, two formal opinions on Email:
Formal Opinion 11-459 August 4, 2011
Duty to Protect the Confidentiality of E-mail Communications with One’s Client
A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access. In the context of representing an employee, this obligation arises, at the very least, when the lawyer knows or reasonably should know that the client is likely to send or receive substantive client-lawyer communications via e-mail or other electronic means, using a business device or system under circumstances where there is a significant risk that the communications will be read by the employer or another third party. Read Full Opinion
Formal Opinion 11-460 August 4, 2011
Duty when Lawyer Receives Copies of a Third Party’s E-mail Communications with Counsel
When an employer’s lawyer receives copies of an employee’s private communications with counsel, which the employer located in the employee’s business e-mail file or on the employee’s workplace computer or other device, neither Rule 4.4(b) nor any other Rule requires the employer’s lawyer to notify opposing counsel of the receipt of the communications. However, court decisions, civil procedure rules, or other law may impose such a notification duty, which a lawyer may then be subject to discipline for violating. If the law governing potential disclosure is unclear, Rule 1.6(b)(6) allows the employer’s lawyer to disclose that the employer has retrieved the employee’s attorney-client e-mail communications to the extent the lawyer reasonably believes it is necessary to do so to comply with the relevant law. If no law can reasonably be read as establishing a notification obligation, however, then the decision whether to give notice must be made by the employer-client, and the employer’s lawyer must explain the implications of disclosure, and the available alternatives, as necessary to enable the employer to make an informed decision. Read Full Opinion
ABAJ.com: Defendant Hurls Backpack at Judge, Punches PD in Incident Caught on Tape. The backpack was thrown as the defendant approached the podium, and it never made it to the judge. The PD got punched when he turned around to look. You can't tell from the video if the PD was even associated with case.
A prison inmate's telephone call to his sister to pass something on to his lawyer was not privileged, and it could come in to show consciousness of guilt. United States v. Rodriguez, 10-2724-cr(L) (2d Cir. August 25, 2011):
On appeal, Rodriguez principally argues that the district court improperly admitted a portion of a recorded telephone call that he made while incarcerated, because he argues that the communication was protected by the attorney-client privilege. The admitted portion of the phone call included a recording of Rodriguez instructing his sister to tell his brother to tell his lawyer that he wanted to “cop out” to a plea before he was indicted. We hold that the district court did not err in finding that the communication was not made in confidence and that the attorney-client privilege did not apply.
ABAJ: Associate Who ‘Closed’ Files of Law Firm Clients He Wanted for His Future Solo Practice is Disbarred, based on Attorney Grievance Commission v. Keiner, Misc. Docket AG No. 24, (Md. August 19, 2011). The court's summary:
Disbarment is the appropriate sanction for an attorney who violated Maryland Lawyers’ Rules of Professional Conduct 1.4(a) and (b) and 8.4 (a) - (d), by wrongfully deleting and altering his law firm’s clients’ electronic computer files in an effort to make viable cases appear closed for lack of merit. The attorney engaged in such conduct in order to conceal the cases from the firm, with the intent of pursuing the cases on his own once he started his own law practice. The attorney also wrongfully used the firm’s resources in an effort to solicit new clients for his proposed law practice. Given the absence of compelling extenuating circumstances, the attorney’s intentional, dishonest conduct warranted disbarment.
ABAJ: RICO charge for criminal defense lawyer: Another Attorney Charged in RICO Case, Accused of Paying Texas Judge for Rulings:
An Austin attorney has been federally indicted concerning his alleged role in a Texas court corruption scheme in which a former state district judge and two other lawyers have already taken pleas.
Marc Garrett Rosenthal, 49, is accused in a 13-count indictment unsealed yesterday of paying ex-Judge Abel Corral Limas for favorable rulings, as well as bribing witnesses, conspiring to file state and federal personal injury cases relying on false testimony and directing others to pay nonlawyers for referrals of cases to his firm, according to the Associated Press.
A Brooklyn judge presiding over the murder prosecution of Levi Aron showed impatience with the defense lawyers on Tuesday.
Judge Neil Firetog grilled the lawyers “about their legal chops” and expressed concern that they don’t have the experience to try such a complex case, the New York Daily News reports. If public defenders were representing Aron, Firetog said, he would have assigned ones with more experience.
Firetog scolded the lawyers for complaining about press coverage of the case after giving media interviews and posting comments on Facebook. ...
Formal Opinion 11-458 August 4, 2011: Changing Fee Arrangements During Representation
Modification of an existing fee agreement is permissible under the Model Rules, but the lawyer must show that any modification was reasonable under the circumstances at the time of the modification as well as communicated to and accepted by the client. Periodic, incremental increases in a lawyer’s regular hourly billing rates are generally permissible if such practice is communicated clearly to and accepted by the client at the commencement of the client-lawyer relationship and any periodic increases are reasonable under the circumstances. Modifications sought by a lawyer that change the basic nature of a fee arrangement or significantly increase the lawyer’s compensation absent an unanticipated change in circumstances ordinarily will be unreasonable. Changes in fee arrangements that involve a lawyer acquiring an interest in the client’s business, real estate, or other nonmonetary property will ordinarily require compliance with Rule 1.8(a).
A veteran Michigan criminal defense lawyer is awaiting a decision on how he will be penalized following a legal ethics ruling that found he had violated a fundamental principle of legal ethics by revealing in open court that his client had confessed to a shooting as the two argued during a sentencing hearing.
Detroit Free Press here.
ABAJ.com: Prominent Defense Lawyer Charged in Meth Case; Lab Allegedly Found in Her Home by Martha Neil:
A prominent Southern Indiana criminal lawyer who formerly worked as a public defender and ran unsuccessfully for a seat on the bench several years ago has been arrested on drug charges along with her boyfriend.
The trial court started the suppression hearing without defense counsel present because he was in another court in another county. He arrived shortly after it started where the officer had only gotten into background information. Nevertheless, the court finds this was a denial of counsel. People v Strothers, 2011 NY Slip Op 06200 (App. Div. 1st Dept. August 11, 2011):
The right to counsel for an accused person is constitutionally guaranteed at trial and at other critical proceedings such as a pretrial suppression hearing (see People v Carracedo, 214 AD2d 404 ). The deprivation of counsel has been described as absolute and harmful per se (see People v Margan, 157 AD2d 64, 65-66 ). Because of the sanctity of the right to counsel, we need not engage in an analysis as to what transpired in the case during counsel's absence and whether the evidence received, or matters discussed with the court, were material to the defense. " The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial'" (id. at 66, quoting Glasser v United States, 315 US 60, 76 ). Thus, we reject the People's argument that the deprivation here can be overlooked because defendant was unrepresented for only a small portion of the cumulative testimony and that the portion counsel missed covered only background and general information.
The fact that the right to counsel is absolute also renders baseless several of the other arguments advanced by the People. For instance, it is of no moment that counsel, once he did arrive for the hearing, did not preserve the objection that it began without him. Where counsel is not present when the deprivation occurs and so cannot lodge an objection, the issue can be raised for the first time on appeal (Margan at 70). The People offer no support for their position that the presence of codefendants' counsel, whose clients' interests they allege were aligned with defendant's, was an adequate substitute. Evidence that defendant expressly agreed to the representation and waived any conflict, as would be required, is completely absent from this record (cf. People v Torres, 224 AD2d 269, 270 , lv denied 88 NY2d 943 ).
We also reject the People's contention that the deprivation of counsel here was harmless. The Court of Appeals has held that, where a defendant is deprived of counsel at a suppression hearing, the error cannot be deemed harmless even if one can conclude that the outcome of the hearing would have been the same had counsel been present (see People v Wardlaw, 6 NY3d 556, 559 ). ...
ABAJ.com: Caught in Cocaine Sting Set Up By Client, Ex-Prosecutor Takes Plea, Gets Probation by Martha Neil:
A former prosecutor in Bexar County, Texas, pleaded no contest to a felony drug charge yesterday as his trial for purchasing crack cocaine was about to begin.
However, Gammon Guinn, 56, can avoid having the conviction on his record if he successfully completes his sentence of deferred adjudication probation, reports the San Antonio Express-News.
Likewise, doing so probably would prevent Guinn, who is still a practicing defense attorney, from losing his law license, the newspaper says.
The San Antonio paper reported that the first occurrence was five years ago, where the defense lawyer was leaning on a client to acquire cocaine for him, and the client went to the police who set up a sting.
A contract public defender in California was disbarred January 1, 2011 for having sex with a client in jail at some unspecified time prior to early 2001. From the California Bar Journal, August 2011:
Marshall was the contract public defender for San Benito County from July 1, 1993, through February 7, 2001. While representing a convicted felon facing possible life imprisonment, he had sexual relations with his client three times while she was incarcerated in the county jail. Although he said the sexual relations were consensual and questioned the meaning of undue influence, the bar court characterized his arguments as “dismal ... particularly in light of (his) many years of therapy with” organizations that include a Sexaholics Anonymous Twelve Step program.
And why did this take ten years to resolve?
On Volokh Conspiracy: How Long a Nap Is Ineffective Assistance of Counsel? by Jonathan H. Adler:
If your defense attorney falls asleep during your trial, and you are convicted, do you have an ineffective assistance of counsel claim? That may depend on how long your attorney was asleep, and whether you can demonstrate prejudice. Yesterday, in Muniz v. Smith, the U.S. Court of Appeals for the Sixth Circuit denied a habeas petition alleging ineffective assistance of counsel because the defense attorney fell asleep while the defendant was under cross-examination. A courtroom nap, by itself, is insufficient to establish ineffective assistance of counsel unless the attorney is asleep for a “substantial portion” of the trial, and that could not be demonstrated here. Further, the defendant could not demonstrate he was prejudiced by his attorney’s nap.
Hat tip to Legal Ethics Forum.
Laredo lawyer Alonzo Ramos, 40, was sentenced to a little more than two years in federal prison after pleading guilty to paying $50,000 in drug money to a Louisiana inmate's family to keep silent about drug trafficking activities.
Ramos was charged in April with traveling from Laredo to Louisiana, via North Texas (thus the reason his case is being prosecuted here) in 2008 and urging the cartel operative to not cooperate with authorities. The inmate has not been identified.
Instead, the inmate and his family cooperated with authorities and helped them bust Ramos, the son of former Webb County State District Judge Andres Ramos.
U.S. District Judge Sam Lindsay told Ramos at sentencing Monday that he abused his position of trust as a lawyer. "If officers of the court are allowed to violate the law, then what messages does that send to the general public?"
The USAO's press release follows.
May a Prosecutor Offer, and May a Criminal Defense Lawyer Advise His Client to Accept, a Plea Agreement That Requires a Waiver of the Right to Later Claim Ineffective Assistance of Counsel?
In this hypothetical, a defense lawyer represents a client who intends to plead guilty. The plea agreement provides that “I waive any right I may have to collaterally attack, in any future proceeding, any order issued in this matter and agree I will not file any document which seeks to disturb any such order. I agree and understand that if I file any court document seeking to disturb, in any way, any order imposed in my case, such action shall constitute a failure to comply with a provision of this agreement.” This provision is standard in all plea agreements offered by the prosecutor’s office, however, defense counsel has concerns that this provision may have the legal effect of waiving the client’s right to later claim ineffective assistance of counsel. The defense lawyer asks whether he can ethically advise his client as to whether to waive that right and whether the prosecutor can ethically require this waiver as a term of a plea agreement.
. . .
Defense lawyer’s duties
The Committee agrees with the majority of states that have considered this issue that, to the extent that a plea agreement provision operates as a waiver of the client’s right to claim ineffective assistance of counsel, a defense lawyer may not ethically counsel his client to accept that provision. There is a concurrent conflict of interest as defined by Rule 1.7(a)(2) between the lawyer’s personal interests and the interests of the client. Defense counsel undoubtedly has a personal interest in the issue of whether he has been constitutionally ineffective, and cannot reasonably be expected to provide his client with an objective evaluation of his representation in an ongoing case. This conflict was discussed in LEO 1122, which concluded that a lawyer should not represent a client on appeal when the issue is the lawyer’s own ineffective assistance because “he would have to assert a position which would expose him to personal liability.” Likewise, LEO 1558 concluded that a lawyer could not argue that he had improperly pressured his client into accepting a guilty plea, because of the conflict between the interests of the client and the lawyer’s interest in protecting himself. Further, both conflicts cannot be cured even with client consent. LEO 1817 recently reaffirmed the accuracy of this conflict of interest analysis.
A defense lawyer who counsels his client to agree to this provision also violates Rule 1.3(c). The client has a constitutional right to the effective assistance of counsel and the defense lawyer’s recommendation to bargain that right away prejudices the client.
As to defense ethics:
Handling Physical Evidence, Guidance Found in ABA Standard 4-4.6 by Rodney J. Uphoff, page 4 (adapted from his article The Physical Evidence Dilemma: Does ABA Standard 4-4.6 Offer Appropriate Guidance?, 62 Hast. L. J. 101 (2011)
Eliminating Excessive Public Defender Workloads by Laurence A Benner, page 24
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Justice Policy Institute: System Overload: The Costs of Under-Resourcing Public Defense by Kate Taylor, Emerson National Hunger Fellow with the Congressional Hunger Center published July 27, 2011:
The 6th Amendment holds that people charged with a crime have a right to counsel, yet for many people who cannot afford private attorneys, there is a chasm between a “right to counsel” and a right to quality representation in judicial proceedings. Public defense systems serve millions of people in the United States every year.1 Yet many systems across the country have been in a state of “chronic crisis” for decades. The defender systems that people must rely on are too often completely overwhelmed; many defenders simply have too many cases, too little time and too few resources to provide quality or even adequate legal representation.
Ensuring that public defense systems have the resources necessary to provide quality representation to their clients can result in a more just system that reduces costs and incarceration and improves public safety and communities. Underresourced public defense systems can lead to increased incarceration, which can have serious costs for individuals, families, communities and taxpayers:2for every $1 spent on public defense, taxpayers spend nearly $14 on corrections.
Grits for Breakfast: Appointed counsel get worse results than public defenders, private lawyers:
Indigent defendants with court-appointed lawyers receive worse outcomes than those with public defenders or retained counsel, according to a new paper from Thomas Cohen at the Bureau of Justice Statistics. He "examines whether there are differences between defense counsel type and the adjudication and sentencing phases of criminal case processing. Results show that private attorneys and public defenders secure similar adjudication and sentencing outcomes for their clients. Defendants with assigned counsel, however, receive less favorable outcomes compared to their counterparts with public defenders."
About 80% of criminal defendants nationally, says Cohen, are indigent, with just one in five hiring their own attorney. (The author excluded pro se defendants from the study because he's analyzing which type of lawyer gets better outcomes, but approximately 2% of all defendants proceed without an attorney.) Defendants were more likely to retain private counsel in more serious cases: "7% of defendants represented by private attorneys were charged with rape or other violent crimes, while about 4% of defendants with public defenders or assigned counsel were charged with these offenses."
Suing a client during the representation over the fee to get off the case is unethical and justifies a reprimand. The lawyer previously tried unsuccessfully to be relieved for non-payment of the fee. It creates a conflict of interest. In the Matter of Simon (D-51-10) (N.J. June 9, 2011). From the court's syllabus:
1. RPC 1.7(a) prohibits a lawyer from representing a client if the representation involves a "concurrent conflict of interest;” such a conflict exists when there is "a significant risk that the representation ... will be materially limited by... a personal interest of the lawyer." RPC 1.7 (a) (2). The interest of a lawyer in being paid for legal services does not itself create such a conflict, but the fee-collection methods available to a lawyer, who has a fiduciary relationship with the client, are limited by the conflict-of-interest rules and the law governing the remedy in question. By filing suit against his client, whom he was defending against murder charges, respondent placed himself in an adversarial relationship with his client and put at risk his duty to defend the client with the utmost zeal. (pp. 15-18)
2. An attorney may not seek a remedy against the client for the purpose of creating a conflict under the RPCs to withdraw from a case. Consistent with the RPCs, an attorney may withdraw from representation if a client fails to fulfill a substantial financial or other obligation to the attorney regarding the attorney's services if the attorney has given notice of the impending withdrawal, and an attorney must withdraw if representation will lead to violation of law, including the RPCs, but the RPCs also require an attorney to comply with a valid order of a court that calls for continued representation. (pp. 19-21)
Some criminal defense attorneys pride themselves on being able to represent anyone, no matter how repulsive the crime of which they are accused. But a veteran lawyer abruptly quit a high-profile child murder case in New York this week, saying he had cried over the death of 8-year-old Leiby Kletzky and was too affected by the crime to continue to represent the alleged perpetrator, Levi Aron, in the first-degree murder case, reports WABC.
ABAJ.com: Top NH Court Nixes $100 Fine; Lawyer Scheduled in 2 Courts at the Same Time Did the Best He Could by Martha Neil:
Fined $100 for failing to appear at a pretrial hearing in one county because he was attending a pretrial hearing in another county, a New Hampshire criminal defense lawyer appealed the sanction.
Today, finding that Stuart Dedopoulos had made timely and diligent efforts to obtain the court's permission to reschedule and had worked cooperatively with opposing counsel to resolve the situation, the state's top court nixed the fine. "Under the circumstances of this case," the New Harmpshire Supreme Court said in a written opinion (PDF), fining Dedopoulos was "an unsustainable exercise of discretion.
The case is Petition of Dedopoulos, 2010-478 (N.H. July 21, 2011):
In this case, Dedopoulos was scheduled to appear for a pretrial conference in another court at the same time, and the outcome of that conference bore directly on the scheduling of the Wolfe case. Dedopoulos filed a motion to continue, informing the court of the conflict, conferred with opposing counsel, and indicated that he would be available to appear in court to discuss the Wolfe case on June 11. Opposing counsel promised to inform the judge of the situation. Dedopoulos made timely and diligent efforts to ascertain the status of his motion to continue, and nothing in the record suggests any negligence on his part. Further, as noted by the amicus brief in this case, while scheduling conflicts are an inherent part of criminal defense practice, the filing of “motions based on contingent scheduling conflicts filed far in advance of hearing[s] [is] discouraged by most trial courts, as the burden of processing these motions would otherwise be unwieldy and conflicts oftentimes dissipate before the time of hearing.”
Nonetheless, we need not decide whether the trial court erred by denying the motion to continue the pretrial conference as that issue is not before us. However, we conclude that, under the circumstances of this case, the imposition of a fine upon Attorney Dedopoulos constituted an unsustainable exercise of discretion.
ABAJ.com: Lawyer Gets Three-Year Suspension for Accessing Onetime Fiancée’s Bank Accounts, apparently in an effort to actually steal from her:
A Wisconsin lawyer has received a three-year suspension, partly for trying to steal money from his onetime fiancée.
Lawyer James Schoenecker agreed to the suspension, and the Wisconsin Supreme Court affirmed the sanction, report the Milwaukee Journal Sentinel blog Proof & Hearsay and the Legal Profession Blog. He will be required to demonstrate a proper understanding of ethics standards before reinstatement. Two dissenters argued a more severe sanction may be warranted.
Three years does seem a little light if the real motive was to steal from her bank account.
Performance Guidelines for Non-capital Criminal Defense Representation in the Texas Bar Journal (July 2011).
Salem-News.com: Caylee Searchers Sue; Padilla Vows to Target Attorney Baez:
A search -and-rescue group this week filed a lawsuit in Florida amid claims it spent over $100,000 looking for two-year-old Caylee Anthony in intensive but futile efforts in 2008.
Texas EquuSearch Mounted Search and Recovery (TES) filed a civil action July 12, alleging unjust enrichment by Caylee’s mother, Casey Anthony.
Filed in the Circuit Court of the 9th Judicial Circuit in Orange County, the lawsuit seeks to recoup expenditures the nonprofit organization made under belief from the mother that her toddler was missing.
. . .
Padilla said he will file a $200,000 lawsuit suit against Casey Anthony and her lead criminal defense lawyer, José Baez, to recoup search costs he paid in addition to expenses on travel, private detectives and security firms. Like Miller, Padilla said do-gooders trying to find Caylee were defrauded.
How did the criminal defense lawyer add anything to that?
Claiming that a prominent New York defense lawyer has multiple conflicts of interest and has acted unethically by accepting attorney's fees in cash, prosecutors are asking a federal judge in Brooklyn to bar Jeffrey Lichtman from defending a hip-hop mogul in a major drug case.
However, Lichtman says he has done nothing wrong and claims the government, by contending that he acted as house counsel for an alleged drug-trafficking enterprise run by his client, James Rosemond, is desperately trying to prevent him from doing his job, reports the New York Law Journal.
A new chapter has begun in the saga of Missouri's chronically underfunded and overworked public defender system. The Missouri Supreme Court currently is reviewing legal briefs ahead of a case to be heard this fall. It poses the question of whether public defenders can control their caseloads.
For more than a decade, the statewide commission that oversees lawyers appointed to represent indigent defendants in criminal cases has been begging for resources to meet ever-increasing caseloads. A Missouri Bar task force concluded in 2005 that system is overworked and underfunded. A special committee of the Missouri Senate reached the same conclusion in 2007. The committee recommended that caseloads be reduced and that support staff and the number of public defenders be increased.
With state revenue slipping, none of that has happened. The public defender commission took matters into its own hands. It established a protocol that allows public defenders to refuse new appointments when their caseloads exceed certain limits.
ABAJ: May a Lawyer Represent a Man Accused of Killing a Client? Two Cases Raise the Issue, by Debra Cassens Weiss:
May a lawyer represent a man accused of killing the lawyer's client? Recent news stories detail ethics questions surrounding the arrangement in two separate prosecutions.
One case involves Minnesota criminal defense lawyer Justin Seurer, who is representing a man accused of killing his client near a bar, ABAJournal.com reported last week. The second case involves court-appointed lawyer Keith Kamenish of Louisville, Ky., who represents Dion Neal, one of two men accused of killing Kamenish's client in 2005 in an effort to protect drug turf, the Louisville Courier-Journal reports.
The issue is the conflict between the duty to protect confidences of the original client and the duty to zealously defend the new client.
For decades, the ubiquitous sign above every Miami-Dade judge’s bench has delivered a lofty reminder: “We who labor here seek only the truth.”
But one lawyer in a triple murder case wants the venerated sign taken down — because the truth is, jurors during a trial aren’t always allowed to see the whole truth, meaning all the evidence collected by police.
Update: Motion denied.
Washington Post: Federal indictment of lawyer Daum in D.C. creates angst among defense attorneys by Keith L. Alexander:
Federal prosecutors charged Charles F. Daum, a well-regarded defense attorney in D.C. Superior Court, with conspiracy and witness tampering....Prosecutors say these are the first such charges against a practicing Washington-based lawyer in more than 15 years. Area lawyers, including many not connected to the case, are watching intently.
I don't see why, if the government's allegations are true:
Daum then staged more photographs with a razor blade, scale and other items that showed someone other than White cutting rock cocaine in the Northeast apartment days before the raid, according to the government.
Prosecutors say Daum created a fake lease to suggest that White lived in Hyattsville, not the District, when the raid took place. The indictment also says he encouraged one of White’s associates to encourage a witness to say that someone else lived in the apartment — and told White to encourage that witness to leave town during the trial to avoid testifying.
The photos were introduced as evidence during a trial in U.S. District Court. That trial ended with a deadlocked jury, and prosecutors were preparing to retry White when the allegations against Daum and the investigators surfaced.
Back in December 2009 was this post:
Harper Lee, To Kill a Mockingbird, ch. 22, p. 197 (1960):
“I simply want to tell you that there are some men in this world who were born to do our unpleasant jobs for us. Your father is one of them.”
That post passed 30,000 views on Saturday. The way this software counts views, the actual number of views can only be estimated, if the stats on FourthAmendment.com are any comparison. There, visits mentioned on the posts are a fraction of the number that come to the website. For example, there might be 30 visits mentioned on a post but 1,000 came to the website that day. I think visits are counted by those that register as guests, which isn't required.
Reason.com: Indefensible / Public defenders are too overloaded to protect the rights of the accused by Clay Conrad from the July 2011 issue:
The Sixth Amendment guarantees criminal defendants the right to counsel, but that does not mean all defendants receive good representation. Too often, their defense is not even minimally adequate.
Public defenders are lawyers who work for the court system representing indigent defendants instead of maintaining their own practices. Some are passionate civil libertarians who choose to represent the destitute, damned, and despised. Some simply prefer a regular paycheck to the vicissitudes of private practice. Contrary to their reputation, many are great lawyers. But even great public defenders can find it difficult to do great work in every case.
SC Criminal Defense Blog: Ex Parte Brown--Lawyer's services are property subject to the protection of the Fifth Amendment:
In Ex Parte Brown, decided June 21, 2011, the S.C. Supreme Court has finally held that lawyers are entitled to compensation for their services, and that denial of reasonable compensation is a violation of the Fifth Amendment's Takings Clause. The opinion arose from a Beaufort County case in which the trial judge refused to order compensation above the statutory maximum of $3500 to appointed counsel after a complex trial, a decision which was appealed by trial counsel. The S.C. Bar filed an amicus brief urging the Court to hold that denial of reasonable compensation implicates the Fifth Amendment as an unjust taking.
Defense counsel's revulsion at representing a child pornographer was not ineffective assistance, and denial of the lawyer's motion to withdraw for this personal conflict of interest was not an abuse of discretion. The district court found that the constitution only required adequacy, not zealousness. United States v. O’Connor, 2011 WL 2417143 (2d Cir. June 16, 2011):
Fischer’s affirmation made clear that he had accepted appointment by the court to defend Sacco knowing the nature of the charges. He stated that he had proceeded industriously to prepare for trial, conducting interviews, doing research, and examining “100 pounds” of documents. The affirmation quite plainly stated that Fischer wished to withdraw because of his abhorrence of a “single bit” of evidence in the case. Ethical Consideration 2-29 provided that he should not seek to withdraw except for compelling reasons; and if, as EC 2-29 specified, repugnance of the subject matter of the case does not fit into that category, Fischer’s revulsion at a single item of evidence in the case surely did not constitute a compelling reason. Finally, Fischer’s affirmation’s reference to the change in his “ technical perspective” (emphasis added) suggests that the condom evidence caused Fischer to believe that his client was guilty. Under the express terms of EC 2-29, such a belief is not a sufficient reason to withdraw.
We thus see no abuse of discretion in the district court’s denial of Fischer’s motion based on the presentations to the district court. Implicit in the court’s statement that it “expect [ed] that Attorney Fischer w [ould] continue to provide Defendant Sacco with appropriate representation,” Order Denying Withdrawal at 1 (emphasis added), was the expectation that Fischer would represent Sacco as vigorously as required by the Code. That expectation was entirely reasonable in light of the absence of any suggestion by Fischer in his motion that he would be unable to comply with any of the Code’s Disciplinary Rules or any suggestion that his continued representation of Sacco might possibly expose him to a sanction. Further, Fischer made clear in the motion itself that he had done most of the work necessary to prepare for trial. And he indicated in his April 30 Letter that he was ready, able, and willing to proceed to trial and to cross-examine S.O. on Sacco’s behalf.
Nor does Sacco’s brief on appeal provide any basis for concluding that the district court should have granted Fischer’s motion. Although it cites the title of DR 7-101 (“Representing a Client Zealously”), it does not quote or describe any provision of that Rule and does not suggest that Fischer failed to comply with any of the Rule’s commands. Further, while Sacco’s brief quotes EC 7-1's provision that an attorney should “represent the client zealously,” it provides no basis for a conclusion that Fischer did not represent Sacco zealously. His objections to Fischer’s performance are to strategic decisions such as the timing of Fischer’s objection to the admission of Sacco’s self-styled autobiography and the timing of a request for a bench trial. The record makes plain that Fischer competently cross-examined s.o. at trial, and Sacco’s brief on appeal does not contend to the contrary.
In sum, the record provides no basis for a conclusion that the denial of Fischer’s motion to withdraw deprived Sacco of a fair trial.
A federal judge's former law clerk was put in charge of the CJA plan in Charleston WV, and the lawyers don't like it. See Lawyers decry federal judges' panel appointment by Zac Taylor in The Charleston Gazette:
Federal judges in the state's Southern District have agreed to appoint a supervising attorney to oversee a panel of lawyers who represent financially strapped defendants charged with federal crimes.
The plan will give the new supervisor the authority to appoint lawyers to the Criminal Justice Act panel and to review and issue payment vouchers for casework -- duties formerly held by the district's Office of the Federal Public Defender.
Chief U.S. District Judge Joseph Goodwin ordered the public defender's office to begin providing administrative materials to the circuit clerk's office Tuesday in anticipation of the switch. The district judges will vote on final approval of the plan on Monday.
But the members of the panel are opposed to the new plan, which usurps any authority the public defender's office had in choosing qualified lawyers to make up the panel, said Deirdre Purdy, spokeswoman for the Criminal Justice Act panel.
NYTimes: Delivering a Lawyer Within 15 Minutes (Soda Extra), by John Schwartz:
The wheels of justice tend to be slow, but arrests can happen with lightning speed — and what happens next can be crucial. In searches, seizure and interrogation, things can go badly wrong.
At that moment, a lawyer might help keep things from getting out of hand, asserting Miranda rights against interrogation or starting the bail process. But getting that lawyer is no easy thing, said Chris Miles, who co-founded a company, LawyerUp, to get lawyers on the case within 15 minutes.
“If I want a pizza, I can get a pizza in 15 minutes,” he says. “I can get a plumber in the middle of the night. Why can’t I get a lawyer?”
He co-founded the company in February, and started full operations this month in Massachusetts, Connecticut and Rhode Island, having built a roster of criminal lawyers who do not mind getting late-night calls.
From Denver Post: Defense lawyer McAllister disbarred:
Veteran criminal defense lawyer Robert T. McAllister has been disbarred after admitting to converting client funds, Law Week Colorado reports.
McAllister acknowledged receiving $105,255.43 of client funds without permission or while the money was restricted by court order: $100,000 was held in the name of McAllister client Terry Vickery and had been frozen by a court order; $5,255.43 was a check payable to MNT Enterprises that the recipient had decided against cashing; McAllister asked the check writer, an insurer, to reissue the check in his name.
The Paul Bergrin saga continues as a second superseding indictment adds racketering charges. Ex-Prosecutor Faces Racketeering Charges by David Gialanella:
A grand jury has returned a second superseding indictment against defense attorney and ex-prosecutor Paul Bergrin, accused of running a crime ring fueled by murder, fraud and other criminal activity, this time adding racketeering charges.
California defense attorney accused of bribery on Law.com by Amanda Bronstad:
A criminal defense attorney in Orange County, Calif., has pleaded not guilty to bribery, while a solo practitioner in Los Angeles has agreed to be disbarred after admitting that he siphoned money from a couple injured in a drunk driving accident.
In the bribery case, Lawrence Anthony Witsoe of the Law Office of Lawrence A. Witsoe in Tustin, Calif., surrendered to the FBI on June 6 after being indicted on federal charges. Witsoe was taken into custody along with Aaron Scott Vigil, a police officer in Rialto, Calif.
A June 1 indictment alleges that Vigil, who served on a task force for the U.S. Drug Enforcement Administration in Riverside, Calif., agreed to accept a $2,500 bribe in exchange for falsely telling the Orange County, Calif., district attorney's office that one of Witsoe's clients was cooperating with the DEA.
I looked on the ABA website, and the standards are no longer there; the link gets a 404.
The Seventh Circuit called a law firm's selective quoting from a case with switching words in brackets "unprofessional." [Do lawyers really think that their opponents and courts don't read the cases they cite just to see if the case really supports a different proposition?] Girl Scouts of Manitou Council, Inc., v. Girl Scouts of the United States of America, Inc., 10-1986 (7th Cir. May 31, 2011):
That completes our analysis, except to note certain unprofessional features of the brief filed in this court by the law firm of Hogan Lovells US LLP on behalf of the national organization.
... The resemblance of that case to the present one is tenuous, to say the least, but without telling the reader what the case is about or that it involves political parties, the national organization’s brief misleadingly states: ...
Grits for Breakfast: Bexar contemplates public, private alternatives to “wheel” for indigent defense:
A column from former St. Mary's Law School Dean Bill Piatt lays out possible options to stem rising indigent defense costs in a column in the SA Express News ("County needs more efficient indigent defense system," June 1), which opens:
Indigent defendants facing incarceration in Bexar County are entitled to have their defense paid by the county.
Recently, costs to taxpayers have grown dramatically. Between 2004 and 2010, indigent felony cases increased by 37 percent while defense costs increased by 46 percent. Indigent misdemeanor filings increased during this period by only 6 percent and the defense costs increased by 45 percent. Direct costs of indigent defense rose from $6.2 million in 2002 to $9.1 million in 2004, and to $13.3 million in 2010. Indirect costs added 33 percent.
The new version of outsourcing in big law: non-partner track associates making really low pay: At Well-Paying Law Firms, a Low-Paid Corner:
The nation’s biggest law firms are creating a second tier of workers, stripping pay and prestige from one of the most coveted jobs in the business world.
Make no mistake: These are full-fledged lawyers, not paralegals, and they do the same work traditional legal associates do. But they earn less than half the pay of their counterparts — usually around $60,000 — and they know from the outset they will never make partner.
New York Times: The Defense Can’t Afford to Rest:
WHEN clients call Ivan Vogel’s cellphone, they are treated to an unintentional, 13-second economic truth. “This,” the recorded message says, “is the law office of Ivan A. Vogel. Leave your name and number. I’ll get back to you as soon as I can.”
Mr. Vogel, a veteran defense lawyer who works mainly in Brooklyn, operates what can only be described as a telephonic practice, advising the accused wherever he may find himself. Not unlike the mobile hustler in the recent legal thriller “The Lincoln Lawyer” (who ran his practice from the back seat of a Town Car), his situation is somewhat unconventional, though it is also reflective of the increasingly troubled plight of a specific breed of New York lawyer, assigned-counsel — or 18-B — attorneys who represent the poor.
The lawyers — there are more than 1,000 in the city — occupy a difficult and middling spot in New York’s crowded legal cosmos, somewhere between the chauffeur-driven celebrities who moonlight as trial-coverage pundits on TV and the earnest young altruists at Legal Aid. They are creatures of the courthouse, where they spend so many hours in proceedings or waiting in hallways for their cases to be called that they are known to justices and janitors alike.
. . .
Last year, the city spent almost $73 million, in all five boroughs, on 18-B lawyers (in contrast, the budget for the Manhattan district attorney’s office was $74 million last year). Officials said that while spending on the program had declined slightly over the years — and might decline further — such drops were taking place in the context of citywide cuts.
The city pays 18-B lawyers $75 an hour, more than individual Legal Aid lawyers get, but far less than the hundreds of dollars an hour billed by top-flight private lawyers. Under the new plan, “attorneys in 18-B might see their income decrease, but that’s a problem every business model faces,” said Thomas Curran, chairman of the City Bar Association’s criminal advocacy committee. “There’s a new economic reality.”
This is a strong, yet sad, commentary on the lot of those who must rely on court appointed cases for a significant part of their income.
The Eleventh Circuit upholds a 24 year sentence challenged at every turn that now should be 11-13 years, where the habeas petitioner has already served 14 years, finding that he has a successor petition and can't challenge his clearly illegal sentence because the law changed, but not in his case. Gilbert v. United States, 09-12513 (11th Cir. May 19, 2011) (en banc). Judge Hill dissenting:
Ezell Gilbert’s sentence was enhanced by eight and one-half years as the result of his being found by the district court – reluctantly and at the explicit urging of the government – to be a career offender. Ezell Gilbert is not now, nor has he ever been, a career offender. The Supreme Court says so.
Today, this court holds that we may not remedy such a sentencing error. This shocking result – urged by a department of the United States that calls itself, without a trace of irony, the Department of Justice – and accepted by a court that emasculates itself by adopting such a rule of judicial impotency – confirms what I have long feared. The Great Writ is dead in this country.
Gilbert raised his claim of sentencing error to every court he could, every chance he got. No court correctly resolved his claim until the Supreme Court made clear that Gilbert’s claim was meritorious – he was never a career offender. Now, he has come back to us for relief from his illegal confinement. Our response to him is that he cannot apply for relief under § 2255 because he has done so before, and, although we erroneously rejected his claim, the statute does not permit such reapplication. Of course, had he not applied for § 2255 relief, we would be holding now that he had procedurally defaulted his claim by failing to raise it before.
This “Catch-22a” approach to sentencing claims is nothing more than a judicial “gotcha.” Through our self-imposed limitations, we have found a way to deny virtually all sentencing claims. We do this, avowedly, in the pursuit of “finality.” But, in so doing, we cast a pall of unconstitutionality over the otherwise beneficial provisions of § 2255.
Furthermore, to “seal the deal” on finality, we hold today that even the savings clause of § 2255 – which appears to permit resort to the Great Writ itself in circumstances such as these – provides no avenue to relief for Gilbert because confinement pursuant to sentencing errors such as his does not offend the Constitution. Rather than acknowledging that Gilbert’s sentence is fundamentally defective and a miscarriage of justice, we hold that the error resulting in an additional eight and one-half years of prison time for Gilbert is a mere technicality, a misapplication of the Guidelines that has no remedy because it is not all that important. Gilbert’s erroneous enhancement as a career offender – demanded by the government at the time – is argued to be mere harmless error now that he has been proven right.
The government even has the temerity to argue that the Sentencing Guidelines enjoy some sort of legal immunity from claims of error because they are not statutes at all, but mere policy suggestions. And the majority appears not to understand that Gilbert’s imprisonment – no matter how his sentence was calculated – is the act of the Sovereign, who is forbidden by our Constitution to deprive a citizen of his liberty in violation of the laws of the United States.
I recognize that without finality there can be no justice. But it is equally true that, without justice, finality is nothing more than a bureaucratic achievement. Case closed. Move on to the next. Finality with justice is achieved only when the imprisoned has had a meaningful opportunity for a reliable judicial determination of his claim. Gilbert has never had this opportunity.
A judicial system that values finality over justice is morally bankrupt. That is why Congress provided in § 2255 an avenue to relief in circumstances just such as these. For this court to hold that it is without the power to provide relief to a citizen that the Sovereign seeks to confine illegally for eight and one-half years is to adopt a posture of judicial impotency that is shocking in a country that has the court, the Court determines that at this time it is unable to provide relief to Mr. Gilbert under the law as it currently exists.
Much is made of the “floodgates” that will open should the court exercise its authority to remedy the mistake made by us in Gilbert’s sentence. The government hints that there are many others in Gilbert’s position – sitting in prison serving sentences that were illegally imposed. We used to call such systems “gulags.” Now, apparently, we call them the United States.
One last thought. The majority spends an enormous amount of time arguing that Gilbert is not a nice man. Perhaps. But neither, I expect, was Clarence Gideon, the burglar, or Ernesto Miranda, the rapist. The Supreme Court managed to ignore this legal irrelevancy in upholding the constitutional principle under attack in those cases. Would that we could have also.
From SignOn San Diego: Feds try to bounce drug cartel defendant's lawyer:
In the first skirmish in a high-profile drug cartel case, federal prosecutors are trying to get the preferred lawyer for drug kingpin Benjamín Arellano Félix barred from the case because 16 years ago he represented a potential witness in the case and might be called as a witness himself.
A Boston criminal defense lawyer was sentenced to 90 days for contempt for an outburst during jury selection in a case, the judge finding the conduct "atrocious." Criminal defense lawyer ordered to jail on contempt charge:
The fiery attorney who represented former Boston city councilor Chuck Turner in his bribery trial is now headed to jail himself, sentenced yesterday to three months behind bars after drawing the ire of a judge during jury selection for a murder trial earlier this month.
“Mr. Wilson, your behavior before me two weeks ago was atrocious,’’ said Suffolk Superior Court Judge Patrick F. Brady to Barry P. Wilson. He called Wilson’s conduct “the worst I’ve seen in 20 years on the bench.’’
Wilson, a criminal defense attorney who has practiced law for almost 36 years, recently shaved his trademark scraggly gray beard, but he replied to the judge in his well-known booming voice and effusive manner.
A criminal lawyer failed to advise the client of rights under the Vienna Convention, but the court did. Also, general allegations that defense counsel was ineffective fail. Lopez v. United States, 2011 U.S. Dist. LEXIS 52495 (W.D. Tex. May 17, 2011):
Even assuming that there is an individually enforceable right under the Vienna Convention, Lopez has wholly failed to show that he suffered any prejudice as a result of his counsel's alleged failure to advise him regarding his rights under the Convention. Despite Lopez's claims to the contrary, he was fully informed of his rights under the Vienna Convention during his Initial Appearance before the Magistrate Court on April 21, 2008.
Philly.com: Castille reignites dispute over Pennsylvania death-penalty appeals in an attack on federal defenders in state court, apparently perturbed that death penalty cases are zealously defended:
After reading the appeal from prison inmate Mark Spotz, incarcerated on four murder convictions, an angry Chief Justice Ronald D. Castille unleashed perhaps the most scathing language ever from the Pennsylvania State Supreme Court.
His target was not the killer; it was the highly specialized Capital Habeas Unit, 35 mostly federally funded defense lawyers who handle death-case appeals and whom Castille accused of legal "sabotage."
Spotz's cases have been in court for more than a decade. He was convicted in 1996 of four murders in four counties over three days. In three of the four trials, he was sentenced to death. Castille had before him a 100-page brief filed by four habeas unit lawyers and crammed with 70 claims. It appealed just one of Spotz's convictions.
So no matter the outcome, Spotz would remain in jail on his other death sentences.
To Castille, the massive legal document, and the government-funded work it represented, "bordered on the perverse."
It was an example, he wrote last month, of federal defense attorneys using an intentionally "abusive" strategy intended to "exhaust as much of this court's time and resources as possible" and frustrate the legitimate exercise of the death penalty.
He called it, "The zealous pursuit of what is difficult to view as anything but a political cause: to impede and sabotage the death penalty in Pennsylvania."
Update: Link to Castille's concurring opinion filed April 29, 2011 is here.
Another Update: As expected: Death Penalty Lawyers Want Withdrawal of Pa. Chief Justice Opinion Calling Them Abusive
A former sheriff was convicted of extortion in referring criminal defendants to a particular lawyer who then allegedly sought the clients to make contributions to the sheriff's office. Hodge Pleads Guilty to Federal Charges:
The information, filed Thursday, charges in the first count that between June 2004 and July 2, 2007, Hodge conspired to “obstruct, delay and affect ... commerce in the movement of articles and commodities in commerce by extortion.”
The 10-page plea agreement states that during that period, Hodge conspired with a Williamsburg criminal defense lawyer to extort funds from criminal defendants.
He admitted on three occasions that he encouraged criminal defendants to seek lawyer Ron Reynolds for representation and Reynolds suggested to his clients that they make donations to the Whitley County Sheriff’s Department.
In the Boston Globe: Two on opposite sides of trial face perjury charges. A US Postal Inspector and a defense paralegal are accused of lying about their relationship during a trial.
A US Postal Service inspector and a Boston paralegal lied under oath about a personal relationship while they were on opposite sides of a federal criminal trial, and both are now charged with perjury and obstruction of justice, officials said.
Joseph M. McGonagle III, 37, of Danvers and Melanie M. Abbruzzese, 31, appeared in US District Court in Boston Tuesday. Each pleaded not guilty to one count of perjury and one count of obstruction of justice.
A lawyer representing the defendant in an ongoing felony murder and child-abuse trial was taken from a Mississippi courtroom in handcuffs and jailed over the lunch hour after refusing to comply with what the Jackson Citizen Patriot describes as a judge's repeated "yelled" instructions to sit down.
Attorney George Lyons was arguing with Jackson County Circuit Judge John McBain at the time about a prosecutor's efforts to question a witness about a medication the defendant, Ronald Woodard II, was trying to get from a pharmacy, the newspaper says. The jury had been sent out after Lyons objected to the question by prosecutor Nimish Ganatra, and the judge was asking the prosecutor to explain why he wanted to question the witness about the medication.
From the Miami Herald: Federal judge issues arrest warrant for lawyer in mortgage-fraud trial:
A federal judge Tuesday issued an arrest warrant for a defense attorney after he failed to show up for the start of a major mortgage-fraud trial of a former Plantation police officer, his brother and a real estate lawyer.
Miami attorney Michael D. Walsh, 44, did not appear to represent the alleged ringleader and main defendant, Joseph Guaracino, in Fort Lauderdale federal court on Monday, nor did he appear for a “show cause’’ hearing Tuesday morning on why he should not be held in contempt of court.
On Monday, Walsh went to South Miami Hospital, but U.S. marshals were unable to find him when they went there to serve him with papers on the hearing set for Tuesday morning, according to authorities. After he failed to appear, U.S. District Judge James Cohn issued the contempt order. The marshals were looking for him to serve the warrant.
42 lawyers quit the indigent appointments list in Forsyth Co. NC in an hourly rate dispute with the state. From the Winston-Salem Journal: Forty-two lawyers come off court-appointed list; immediate impact to court system unclear:
As of Monday, 42 defense lawyers were off the lists of Forsyth County court-appointed lawyers, and the immediate impact on the court system wasn't clear.
Lawyers took their names off the lists after learning that the $75-per-hour fee for representing poor clients could be reduced by as much as $25 under the state budget. That means that there will be fewer lawyers on the court-appointed lists available to represent clients who can't afford to hire attorneys.
Officers using a snitch to set up a sting operation to deliver meth to a lawyer. The snitch said the lawyer was smuggling drugs into prison on client visits. The lawyer’s office was raided and he was arrested but not prosecuted. The officers had qualified immunity because the officers at least had probable cause based on the totality. Garcia v. County of Merced, 09-17188 (9th Cir. May 5, 2011).
Defendant was adamant that he was going to trial because he said he did not shoot the victim. His defense lawyers told him of the state’s plea offers which he rejected in writing. They were not ineffective for not telling him to take a particular plea offer. Harvey v. State, 2011 Tenn. Crim. App. LEXIS 306 (April 29, 2011).
The Depressed Lawyer, Why are so many lawyers so unhappy? by Tyger Latham, Psy.D. in Psychology Today:
It is estimated that approximately one out of every 10 people in Washington, DC is a lawyer. Not surprisingly, I've seen quite a few lawyers in my practice over the years. I'm sometimes reminded of what one of my graduate school professors said about the profession: "As long as there are lawyers," he joked, "there is always going to be a need for therapists, because the very thing that makes so many lawyers depressed [i.e., practicing law], is the very thing they are unwilling to give up." This causality always struck me as a bit simplistic but I think my professor might have been on to something. Take, for example, the following statistics:
•According to an often cited Johns Hopkins University study of more than 100 occupations, researchers found that lawyers lead the nation with the highest incidence of depression.(1)
•An ABA Young Lawyers Division survey indicated that 41 percent of female attorneys were unhappy with their jobs.(2)
•In 1996, lawyers overtook dentists as the profession with the highest rate of suicide.(3)
•The ABA estimates that 15-20 percent of all U.S. lawyers suffer from alcoholism or substance abuse.(4)
•Seven in ten lawyers responding to a California Lawyers magazine poll said they would change careers if the opportunity arose.(5)
Louisville Courier-Journal: Guilty plea thrown out because defense attorney allegedly had sex with client:
A Jefferson Circuit Court judge on Tuesday threw out a guilty plea in a felony drug case after the defendant claimed she had agreed to plead guilty to something she didn't do on the advice of her attorney, with whom she said she was having sex.
Angel Martin, 22, of Jeffersonville, Ind., testified that she twice had sex with J. Clark Baird at his office while he was representing her and “trusted what he said because we had a personal relationship.”
“What he said had a big impact on my decision,” she said, testifying Tuesday with a new attorney that she was innocent of the crime and wanted to withdraw her February plea.
Judge McKay Chauvin said that while the plea agreement with the commonwealth's attorney's office was “a pretty good deal,” he was uncomfortable with the alleged relationship.
“At the very least, what it does, it interjects into this entire process something that shouldn't be there,” Chauvin said in court. “It colors the entire representation in a way that I'm not comfortable with. Period.”
A Maryland lawyer who walked out of court with his client when he could not get a continuance after the state agreed to it was suspended by the state for 60 days. The trial court also found him in contempt. Walking out on court was prejudicial to the administration of justice. Attorney Grievance Commission of Maryland v. Usiak, Misc. Docket AG No. 22 (Md. April 25, 2011).
Hat tip to Legal Profession Blog.
A guest consented to a search of the house he was visiting. The items at issue were found in a box in the master bedroom and a car in the garage. The district court ultimately failed to make findings on whether the guest had apparent authority over these items, largely because of defense counsel’s failure to argue them, and the search issue is remanded. United States v. Arreguin, 2011 U.S. App. LEXIS 8395 (9th Cir. April 22, 2011) (unpublished)*:
Defense counsel managed to obscure the relevant legal issues in this case through his borderline "assistance." Indeed, the district court initially denied the suppression motion without a hearing because counsel failed to follow relevant local rules. The district court allowed defense witnesses to testify only after counsel threatened that his own failure to proffer testimony in a timely fashion would otherwise amount to ineffective assistance of counsel. While the Government suggests the violation of local rules is an alternative basis upon which to affirm, the district court ultimately did not rely on this issue in denying the motion. Under the circumstances, however, it is understandable how the primary issues in this matter—the viability and scope of Valencia's apparent authority—became lost, as defense counsel failed to even mention them at oral argument before the district court or here.
From the Blog Legal Times: D.C. Defense Lawyer Charged in Scheme to Fabricate Evidence:
Prosecutors on Thursday unsealed an indictment charging a 64-year-old criminal defense attorney in Washington for his alleged participation in a scheme to fabricate evidence to benefit a client charged in a drug trafficking case.
The attorney, Charles Daum, a solo practitioner in the District, was charged in a seven-count indictment along with two private investigators.
The indictment said Daum was part of a plan to produce evidence to convince jurors that the drugs police seized from a client actually belonged to another person. Daum was charged with, among other crimes, three counts of influencing a juror and two counts of inducing perjury. Click here for a copy of the 16-page indictment.
An Ohio man who says he was wrongfully convicted of murdering his parents 15 years ago is seeking a new trial because of evidence that just surfaced --- documents that say his wife had been involved in an affair with his attorney throughout the trial and beyond.
Those documents, revealed Wednesday in Columbus, outline a sexual relationship between Celeste Caulley Bowman and attorney James Owen in 1997 and 1998, an affair that ended when Owen refused to leave his wife, the documents say.
The FBI raided a lawyer's office in Revere, MA: FBI Raids Law Office by Seth Daniels. The story is about a ticket fixing investigation taking vans of files:
Journal reporters didn’t have to go far to find the news last Thursday morning as Federal Bureau of Investigation (FBI) agents raided the Citizens Bank Building on Broadway (where the Journal offices are located) – seemingly focusing on an attorney in the building.
Agents arrived in five or more cars around 9 a.m. Thursday, confirming their identity to the Journal, and then proceeded to the fourth floor of the building, where they began searching, taking pictures and removing records from the office of Attorneys John Molloy and Jay Paul Satin.
The raid came just two days after Revere Police Officer Todd Randall was arrested by the FBI and charged with lying to investigators in relation to a situation where Randall allegedly took money to “fix” cases in Chelsea District Court.
In the Cincinnati Enquirer: Judge orders Deters to pay legal fees:
A federal judge has ordered Independence attorney Eric Deters to pay Kenton Commonwealth's Attorney Rob Sanders and his assistant the cost of defending against a frivolous lawsuit Deters filed against the two.
U.S. District Judge William Bertelsman, in a 14-page order issued Monday, said Deters prolonged the litigation even though he knew it was without merit.
"(Deters) appears to have to been using the processes of the United States District Court to pursue an invidious personal vendetta," Bertelsman wrote.
To further his vendetta, Deters used the court proceedings "to shelter libelous statements for which, were they not made in the course of judicial proceedings, he could be sued," the judge wrote.
According to Google, Deters holds himself out as "the expert car, truck and boating accident lawyer in Cincinnati" who actually argued, allegedly with a straight face, that Imbler v. Pachtman could be overruled by SCOTUS anytime. His Imbler argument doesn't even pass the "laugh test," because any reasonable competent non-accident lawyer would know that it isn't going anywhere. Ever. Never.
His Facebook page: Eric "The Bulldog" Deters, Attorney At LAW.
Hat tip on story to ABAJ.
[Note: I strive to be objective. Sometimes I can't just help myself.]
On ABAJ: Mass. Lawyer Suspended for 6 Months for Craigslist Term Paper Offer by Stephanie Francis Ward:
Damian R. Bonazzoli, a Massachusetts lawyer who allegedly placed three advertisements on Craigslist to write students’ term papers and essays, was recently suspended from practice for six months. Additionally, Bonazzoli lost his job with the Massachusetts Appeals Court, according to the Worcester Telegram & Gazette.
On ABAJ: Criminal Defense Lawyer Pleads Guilty to Federal Charge Involving Bribe by Stephanie Francis Ward, linking to this article on DallasNews.com crime blog: Laredo attorney charged in Dallas with paying nearly $50,000 in drug money to Louisiana inmate to remain silent by Jason Trahan:
A Laredo attorney will be sentenced July 5 in Dallas after pleading guilty last week to a charge of interstate travel in aid of racketeering.
Attorney Alonzo Ramos faces a maximum of five years in prison. He was released on bond, and the court has restricted his travel to Texas, documents show.
Ramos admits that he visited a drug trafficker, listed in court documents only as "L.T.," in a Louisiana prison in 2008 "to make sure that L.T. was not cooperating with the authorities," court documents show. The inmate alerted authorities, who began investigating.
Ramos told L.T. that he had $48,000 at his home in Laredo and could give it to one of L.T.'s relatives to buy his silence. The prison meeting was recorded, according to court documents. Days later, Ramos met L.T.'s relative in Laredo and handed over the money, which authorities seized.
This was not an attorney-client visit, and it likely was recorded, as was the drop.
A lawyer sitting down for a TV interview with a client who violated a gag order gets a $5,000 fine and a 120 day suspension from the CJA panel. The gag order was not vague under Gentile. Not every violation found by the district court had to be affirmed on appeal, so the court only viewed the one with the clearest violation. United States v. Hill, 10-10350 (5th Cir. April 1, 2011):
There was evidence to support that the defendants had the intent to violate the gag order. Hill’s public relations consultant, Carter, arranged the interview with Reaves some time before the gag order was entered. Although ground rules were established that purportedly prohibited Reaves from asking questions about the case, Carter, a non-lawyer who had never seen a copy of the gag order, was responsible for relaying the rules from memory to Reaves before the interview took place. Neither Hill nor Jackson confirmed or mentioned the rules to Reaves before the interview.
A criminal defense attorney is not a "law enforcement officer" when he tries to obtain drugs from the CI against his client in an effort to impeach the CI. The constitutional right to counsel does not give defense counsel the right to break the criminal law. Schalk v. State, No. 53A01-1005-CR-210 (Ind. App. February 28, 2011):
David E. Schalk appeals his conviction for Attempted Possession of Marijuana, as a Class A misdemeanor, following a bench trial. Schalk, an attorney, arranged a drug buy with a State witness. His ostensible purpose was to prove that the witness, a confidential informant, was actively dealing drugs and, thus, to discredit the witness who was scheduled to testify against his client at trial. Schalk contends that his conduct did not constitute a criminal offense because he was acting only in the defense of his client, that he did not intend to take possession of the drugs but only to deliver the drugs to law enforcement or the court for use at his client’s trial, and, further, that his conduct was no different than that of prosecutors, police officers and confidential informants when they plan and execute a controlled drug buy. Schalk asserts numerous grounds for error with a common theme, namely, that his conduct was lawful and that the evidence was insufficient to support his conviction.
. . .
... We agree that Schalk’s client has a right to legal representation guaranteed by both the federal and state constitutions. But we reject Schalk’s contention that an attorney, an officer of the court, who has given an oath to support the Constitution of the United States and the Constitution of the State of Indiana is authorized to engage in criminal activity in defense of his client under either the Sixth Amendment or Article I, Section 13.
. . .
In sum, Schalk asks this court to grant him the same “legal footing” as law enforcement officers for the purpose of conducting an illegal drug buy in an effort to discredit a witness against his client. The legislature has clearly identified those persons legally authorized to engage in law enforcement, and defense attorneys are not included. See Ind. Code § 35-41-1-17. An attorney is not exempt from the criminal law even if his only purpose is the defense of his client. “Under the Code of Professional Responsibility an attorney is charged with defending and advancing the interests of his clients within the framework of our legal system.” Matter of Mann, 270 Ind. 358, 385 N.E.2d 1139, 1143 (1979). “It should be abundantly clear that an attorney cannot resort to illegal means in order to obtain a favorable disposition for his client.” Id. This is not a close case. The material facts are undisputed and fully support the trial court’s judgment of conviction. Schalk has not shown reversible error.
From the Iowa City Press-Citizen: Defense attorneys waiting to be paid for court-appointed work:
If there is one group of people that isn’t likely to shy away from an argument, it’s defense attorneys.
However, most defense attorneys can only sit on the sidelines as an argument plays out in the Legislature – an argument that is affecting not only their livelihood, but their staffs’ and families’, as well.
Early in March a message appeared on the State Public Defender’s website informing attorneys that do court-appointed work that the Indigent Defense Fund is out of money. The Indigent Defense Fund pays defense attorneys for the work they do for clients who couldn’t otherwise afford an attorney.
Now, after weeks of back and forth at the Statehouse, attorneys are saying enough is enough.
A D.C. Superior Court judge declared a mistrial Friday in a 2008 murder case and allowed the defendant to fire his New York-based attorney, who exhibited what the judge said were numerous signs that he lacked knowledge of proper trial procedure, including telling the jury during his opening statements that he had never tried a case before.
Judge William Jackson told attorney Joseph Rakofsky during a hearing Friday that he was “astonished” at his performance and at his “not having a good grasp of legal procedures” before dismissing him.
But, it gets worse: The next paragraph:
What angered Jackson even more was a filing he received early Friday from an investigator hired by Rakofsky in which the attorney told the investigator via an attached e-mail to “trick” a government witness into testifying in court that she did not see his client at the murder scene.
[Update 4/4, from ABAJ.com: ‘Astonished’ Judge Declares Murder Mistrial Due to Defense Lawyer Who Never Tried a Case.
From ctpost.com: Lawyer admits mistakes, resigns from bar by Daniel Tepfer involving a Connecticut criminal defense lawyer. The resignation came after his trust account checks bounced and revealed use of client funds.
See Internet Posting Leads To Charge Of Confidentiality Breach on Legal Profession Blog about a pending complaint.
The lawyer aggressively disagreed with the court's ruling and used profanity to describe it, and he had a prior record for doing just that. This time, he aggressively moved toward the prosecutor in a threatening manner and the CSOs stopped him. Thirty day suspension, two years probation, and counseling. In re Banta, Ariz. Disc. Comm. 09-1781 (Feb. 9, 2011).
Hat tip to Legal Profession Blog.
First, defense counsel’s mitigation advice may not be couched with so much certainty that it negates the effect of the warnings required under Padilla. The required advice about immigration consequences would be a useless formality if, in the next breath, counsel could give the noncitizen defendant the impression that he or she should disregard what counsel just said about the risk of immigration consequences. Under Padilla, counsel can provide mitigation advice. However, counsel may not, as Sandoval’s counsel did, assure the defendant that he or she certainly “would not” be deported when the offense is in fact deportable. That Sandoval was subjected to deportation proceedings several months later, and not “immediately” as his counsel promised, makes no difference. Sandoval’s counsel’s advice impermissibly left Sandoval the impression that deportation was a remote possibility.
The second reason that Sandoval’s counsel’s advice was unreasonable, contrary to the State and WAPA’s argument, is that the guilty plea statement warnings required by RCW 10.40.200(2) cannot save the advice that counsel gave. In Padilla, the Commonwealth of Kentucky used a plea form that notifies defendants of a risk of immigration consequences, and the Court even cited RCW 10.40.200, noting the Washington statute provides a warning similar to Kentucky’s. See 130 S. Ct. at 1486 n.15. However, the Court found RCW 10.40.200 and other such warnings do not excuse defense attorneys from providing the requisite warnings. Rather, for the Court, these plea-form warnings underscored “how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation.” Id. at 1486 (emphasis added). Despite the warning about immigration consequences on Kentucky’s plea forms, the Court concluded that the advice of Padilla’s lawyer was incompetent under the Sixth Amendment. The defendant was misadvised that he “‘did not have to worry about immigration status since he had been in the country so long.’” Id. at 1478 (internal quotation marks omitted) (quoting Commonwealth v. Padilla, 253 S.W.3d 482, 483 (Ky. 2008)).
The result is the same here. Just as Padilla’s lawyer incorrectly dismissed the risks of deportation, Sandoval’s counsel’s categorical assurances nullified the constitutionally required advice about the deportation consequence of pleading guilty. We conclude, therefore, that Sandoval has proved the performance prong of Strickland.
A high-profile Boston defense attorney was charged today by federal authorities with allegedly laundering drug money.
Robert Albert George, 56, of Westwood allegedly conspired with a person cooperating with federal investigators to launder $225,000 in drug proceeds between 2009 and 2011.
George is one of Boston’s better-known defense attorneys, with a client list that has included organized crime figures and Christopher M. McCowen, who was convicted for murdering fashion writer Christa Worthington in a Truro home.
Judge orders defendant Anthony Edward Watson to wear spit guard because he spit on his public defender.
The Pentagon has ordered new rules for Guantánamo defense lawyers. See Defense lawyers protest new work rules in yesterday's Miami Herald:
With a new round of Guantánamo prosecutions on the horizon, a senior Pentagon official has ordered war court defense lawyers to sign freshly minted ground rules that not only gag what they can say to their alleged terrorist clients but also to the public.
Retired Vice Adm. Bruce MacDonald issued the 26-page “protective order and procedures” for military and civilian lawyers who already have obtained special security clearances to work at the war court called Camp Justice. The Pentagon provides the uniformed lawyers at no charge to the alleged war criminals, who can also hire other U.S. lawyers so long as they get special security clearances to defend them.
Lawyer Pleads Guilty to Paying Sheriff for Client Referrals, Favorable Treatment by Debra Cassens Weiss on ABAJournal.com:
A Kentucky lawyer has pleaded guilty to paying more than $57,000 to a former sheriff for drug client referrals and favorable treatment of the defendants.
Court documents allege that Reynolds conspired on at least three occasions with former Whitley County Sheriff Lawrence Hodge, who referred clients to Reynolds in exchange for part of the legal fees. Reynolds then encouraged the clients to make forfeiture payments or cash donations to the sheriff’s office in exchange for a favorable resolution of their cases, the documents claim.
Texas lawyers get to have a referendum on ethics rules changes, not that it's binding, but I was surprised at this: Texas Lawyers Reject Ban on Sex with Clients by Debra Cassens Weiss on ABAJournal.com providing a summary of the voting. A proposed rule banning sex with clients was defeated 72.3% no, 27.7% yes. The referendum questions are here.
This was new Rule 1.13:
Rule 1.13. Prohibited Sexual Relations [new, renumbered]
(a) A lawyer shall not condition the representation of a client or prospective client, or the quality of such representation, on having any person engage in sexual relations with the lawyer.
(b) A lawyer shall not solicit or accept sexual relations as payment of fees or expenses.
(c) A lawyer shall not have sexual relations with a client that the lawyer is personally representing unless the lawyer and client are married to each other, or are engaged in an ongoing consensual sexual relationship that began before the representation.
Sounds like a PR problem coming for Texas lawyers.
Lawyers Oppose Mass. Gov’s Budget Proposal to Replace Contract Lawyers with Full-Time PDs by Stephanie Francis Ward on ABAJournal.com:
Massachusetts Gov. Deval Patrick suggested in his 2012 budget proposal that the state eliminate 3,000 contract attorney positions from its indigent legal defense program in an effort to save $48 million.
The contract attorneys in the Committee for Public Counsel Services would be replaced with 1,000 public defenders, according to the MetroWest Daily News.
. . .
Anthony Benedetti, chief counsel of the Committee for Public Counsel Services, says that eliminating contract lawyers might cost Massachusetts money, instead of saving it. He told the MetroWest Daily News that annually his office pays 3,000 contract lawyers about $51,195 each per year. Hiring 1,000 public defenders, Benedetti adds, would cost about $85,304 per attorney, including benefits, office space, equipment reimbursement and possible future salary increases.
Michael Brennan, a private attorney in the program, says the governor's proposal would hurt the local economy. "There are 3,000 lawyers that are small-business people in our communities," he told MetroWest Daily News. "They pay rent for office space; they buy food at restaurants in the community."
Benedetti also worries about losing experienced criminal defense lawyers whose practices include contract work.
‘Dire Consequences’ for Courts If Federal Funding Fails Could Include Late Legal Fees Payments by Martha Nail on ABAJournal.com:
Ongoing concerns about federal funding were a key topic of discussion today at a meeting of the Judicial Conference of the United States.
As Congress continues to battle over appropriations for fiscal year 2011—which is, at the moment, funded only through Friday according to CNN, although a temporary three-week extension is nearing approval—the federal courts have been bracing for a potential budget crash.
Emmett Corrigan, a criminal defense lawyer in Idaho in practice since October, who also did domestic work was shot and killed by the opposing litigant in a domestic case, when he filed a divorce on behalf of his secretary. The shooter apparently believed he was having an affair with her.
Hat tip to ABAJournal.com.
Knowing false certification of word count of brief leads to sanction of summary affirmance of a civil case. The appellee pointed it out. If appellant had admitted the brief was overlong, it would have been rejected, but no sanction. Abner v. Scott Memorial Hospital, 10-2713 (7th Cir. March 9, 2011).
We add that the appellants’ brief is rambling, and would be more effective if compressed to 14,000 words.
Hat tip to ABAJ.
Lack of an ellipsis for deleted words in a quote from a case in a brief was misconduct. First Appellate Brief Deemed "As Brazen A Piece Of Misrepresentation As We Have Ever Seen":
The court further found that the respondent engaged in “as brazen a piece of misrepresentation as we have ever seen,” by deleting “certain words, phrases and sentences without use of an ellipsis, or any other indication of editing.” The court imposed double costs of the appeal upon the window company, to be paid by the respondent to the homeowner, and awarded appellate attorney’s fees to the homeowner.
The respondent’s conduct in falsely representing that the statement of facts was a complete presentation of the findings of the lower court violated Mass. R. Prof. C. 8.4(c), (d) and (h).
Hat tip Legal Profession Blog.
Police officers engaged in an elaborate ruse to have a detective pretend to be a defense lawyer and secure information from the defendant in jail, assuring the defendant that he should not tell his appointed lawyer. The trial court denied a motion to dismiss, but the Tennessee Court of Appeals found it so “abhorrent” that they could find no other remedy. State v. Dawson, E2009-02469-CCA-R3-CD (Tenn. Crim. App. January 13, 2011):
Although the Morrison Court, in a footnote, cautioned against the use of dismissal of the indictment as a means to deter the deliberate infringement of the right to counsel, particularly in the absence of a showing of specific prejudice, the conduct of the law enforcement officers in this case, and in particular Detective Henry, is so egregious that it simply cannot go unchecked. That Detective Henry would illegally pose as an attorney and arrange the circumstances of the defendant’s case to make it appear as though he had successfully undertaken legal representation of the defendant is abhorrent. That the detective would specifically instruct the defendant not to communicate the relationship to his appointed counsel, in what we can only assume was an effort to enlarge the time for the detective to gain incriminating information from the defendant, renders completely reprehensible the state action in this case. Given the unconscionable behavior of the state actors in this case and the fact that the defendant was essentially prevented from proving prejudice through no fault of his own, we have no trouble concluding that the only appropriate remedy in this case is the dismissal of all the indictments.
Accordingly, the judgments of the trial court denying the defendant’s motions to dismiss in each case are reversed. The defendant’s pleas are vacated, and the indictments in McMinn County case numbers 07-225 and 08-239 and Monroe County case numbers 07-210 and 09-004 are dismissed.
See ABAJ article here.
On ABAJournal.com, Retired Detroit-Area Drug Prosecutor Takes Plea in Trial-Testimony Case, Will Get 6 Months. The case involved false evidence to protect the ID of a witness. The lawyer will also lose his law license for at least five years.
From a reader in the Western District of Texas, this appeared on the District Court's website today:
CJA Voucher Funding
Dear CJA Panel Attorneys, Expert Providers and Interpreters.
Likely, recent media reports have made you aware that funding for all federal organizations, including the U.S. Courts and related agencies, was significantly cut in the Full-Year Continuing Resolution (CR) Bill passed by the House of Representatives on February 19, 2011. This bill will be taken up by the Senate when it reconvenes on Monday, February 28. However, government agencies are already being affected. In fact, among other disconcerting news, the judiciary was notified today that funding provided for CJA panel attorney payments under the current CR, which expires March 4, was exhausted on or around February 17, 2011. As a result, Defender Services has been forced to suspend all CJA payments to panel attorneys, expert providers and interpreters. Payments will not resume until additional funding has been approved, either by Senate passage of the House bill or passage of a short-term extension of the current CR.
I am aware that the earnings from CJA appointments supplement a portion of your incomes and that in fact, some of you may rely significantly on the income these appointments generate. As there is currently no alternate source of funding to pay outstanding vouchers, I must regrettably ask for your patience as we wait out this current, federal budget dilemma. You will be advised when funds become available and Defender Services is able to resume payment of all outstanding CJA vouchers.
Thank you for your service to this Court and your patience during this difficult time.
As a CJA lawyer, I get a memo via our local rep from the Director of the AOC of the U.S. Courts that CJA panel payments have ceased because of lack of funds in the current budget.
Another area of concern is in the Defender Services account. The House bill funds that account at the FY 2010 level, which is $50 million below the level needed to meet base program requirements. At this funding level, payments to private panel attorneys providing representation to indigents under the Criminal Justice Act would have to be suspended for the last several weeks of the fiscal year. After consulting with federal defenders about cost reduction options, a hiring freeze was imposed on all federal defender organization positions beginning in January, and within the last few days, guidance has been issued to suspend all discretionary salary increases and cash awards.
The uncertain funding situation has presented the Defender Services account with both immediate and longer term challenges. The funding provided for panel attorney payments in the current continuing resolution has been exhausted, requiring the suspension of all panel attorney payments until additional funding has been approved.
Op. 11-01: Scope of Representation (Feb. 2011):
A lawyer may ethically counsel or assist a client in legal matters expressly permissible under the Arizona Medical Marijuana Act (“Act”), despite the fact that such conduct potentially may violate applicable federal law. Lawyers may do so only if: (1) at the time the advice or assistance is provided, no court decisions have held that the provisions of the Act relating to the client’s proposed course of conduct are preempted, void or otherwise invalid; (2) the lawyer reasonably concludes that the client’s activities or proposed activities comply fully with state law requirements; and (3) the lawyer advises the client regarding possible federal law implications of the proposed conduct if the lawyer is qualified to do so, or recommends that the client seek other legal counsel regarding those issues and appropriately limits the scope of the representation.
An Arkansas lawyer convicted of possession of a small quantity of meth, who went into rehab and AA on his own and accepted responsibility and voluntarily was drug tested and was regularly clean, was subject only to a reprimand at most based on the record. No disbarment sanction was sought by the Director of the Committee on Professional Conduct. The 4-3 committee panel finding that his conviction was not prejudicial to the administration of justice was affirmed. Ligon v. Clouette, 2011 Ark. 68 (February 17, 2011). Note: This is maybe the first time Arkansas has not disbarred a lawyer for drugs, based on a good record for the lawyer.
On NLJ yesterday: Calif. lawyer pleads guilty to smuggling heroin into a jail by Amanda Bronstad:
A Beverly Hills, Calif., criminal defense attorney has pleaded no contest to smuggling heroin into a secure area of a downtown Los Angeles jail last year.
Michael Inman of Inman Associates was sentenced on Monday to 120 days in jail after pleading no contest to a single felony count in a case brought by the Los Angeles County, Calif., District Attorney's office. He also was placed on three years of probation and is expected to be placed on inactive status with the State Bar of California.
Inman was arrested last year after drug-sniffing dogs found 14.25 grams of heroin in a secure lockup in downtown Los Angeles, where he had been waiting to visit two clients in a burglary and stolen property case.
Prosecutor Apologizes for Handling of Crime Lab DNA Scandal, by Peter Jamison in SFWeekly:
A prosecutor in the office of District Attorney George Gascón apologized last week to defense lawyers for his failure to turn over potentially exculpatory documents indicating that a mix-up of DNA samples took place at the San Francisco Police Department crime lab in 2008.
Assistant District Attorney Kin Tong, during a hearing before Superior Court Judge Anne-Christine Massullo, told two defense attorneys that there was "no excuse" for the withholding of an inspection report that revealed the sample switch had taken place and that records of the mistake had been destroyed.
Public defenders challenge law that delays access to a lawyer in Colorado Springs Gazette.com via AP:
The law in Colorado states that a misdemeanor defendant who can't afford an attorney may apply for a public defender only after meeting with a prosecutor. Because of the law, legal observers say the wait for a defender in Colorado's crowded judicial system can take days, if not weeks, costing the accused jobs, their homes or a criminal record if they take a plea to get out of jail.
Sued for Malpractice, Defense Lawyer Can Allege Client's Guilt by Mary Pat Gallagher in The Philadelphia Legal Intelligencer, January 28, 2011:
A criminal defense lawyer sued for malpractice should have been allowed to pursue evidence to bolster his claim that the ex-client was convicted because he was guilty, a New Jersey appeals court says.
Tuesday's precedential ruling in Marrero v. Feintuch [No. http://www.judiciary.state.nj.us/opinions/a5879-09.pdf, January 25, 2011] reverses a decision quashing a subpoena issued on behalf of Howard Feintuch, of Feintuch Porwich & Feintuch in Jersey City, N.J.
Hudson County Superior Court Judge Bernadette DeCastro found the evidence was not relevant and that the "suit within a suit" approach should not be used in trying criminal legal malpractice actions.
But the Appellate Division ruled that whether Jeffrey Marrero committed the crime was relevant to whether he was harmed by Feintuch's alleged negligence, and that whether the suit-within-a-suit format was to be used should be decided at the end of discovery.
This is the general rule. See Treatise § 31:15.
In the Milwaukee Journal-Sentinel: Convicted attorneys are still practicing / Some even have kept their licenses while serving time for their crimes by Cary Spivak and Ben Poston:
At least 135 attorneys with criminal convictions are practicing law today in Wisconsin - including some who kept their licenses while serving time and others who got them back before they were off probation, a Journal Sentinel investigation has found.
The roster includes lawyers with felony or misdemeanor convictions for fraud, theft, battery and repeat drunken driving, as well as offenses involving political corruption, drugs and sex. A child-sex offender got probation for his crime but never lost his law license. A politician convicted in a check-kiting scheme was reprimanded but also kept his license.
Another 70 lawyers were charged with crimes but succeeded in having the charges reduced or avoided conviction by completing a deferred prosecution plan. All were given the green light to practice law.
The newspaper's review, which ran nearly 24,000 Wisconsin lawyers against state and federal court records, found that lawyers who are convicted of crimes are then subjected to a slow-moving disciplinary system that operates largely behind closed doors.
Wisconsin appears to be comparatively lenient in dealing with lawbreaking lawyers.
On Boston.com today: Call for public defender overhaul / Patrick seeks to end costly use of private lawyers for the indigent by Andrea Estes:
Governor Deval Patrick wants to eliminate the use of private attorneys to represent indigent defendants, an entrenched $200 million system that has been attacked as unfair by prosecutors across the state.
The sweeping measure, which will be contained in the governor’s fiscal year 2012 budget, would end the state’s practice of farming out roughly 90 percent of the work defending poor clients in criminal cases. The state instead would hire about 1,000 full-time staff attorneys to replace the 3,000 private lawyers the state draws on to represent poor people.
Courthouse News Service: Lawyer in Hot Water for Photoshopping Child Porn by Dan McCue, also noted on ABAJ: Lawyer Acting as Expert Witness Violated Child Porn Law With Court Exhibits, 6th Circuit Rules. The case is Doe v. Boland, 09-4281 (6th Cir. January 19, 2011).
A veteran Connecticut prosecutor has resigned amid allegations of favorable treatment of a defense lawyer who has been a friend since childhood:
Waterbury State’s Attorney John A. Connelly has resigned effective Feb. 1, according to Connecticut Supreme Court Justice Richard N. Palmer, chair of the state’s Criminal Justice Commission.
Palmer stated that the resignation follows an inquiry undertaken by the commission into allegations regarding Connelly’s conduct while in office. Palmer further stated that, because the commission's inquiry involved a personnel matter, and because the allegations have been the subject of an investigation by federal authorities, he was not free to discuss details of those allegations at this time.
Published reports have stated that federal authorities are looking into whether Connelly had a too-friendly relationship with Waterbury defense attorney Martin Minella, and whether his relationship had led to favorable treatment for Minella’s clients.
He says he's resigning for health reasons.
By using the employer’s e-mail system with notice that the e-mail could be read by the employer, the employee’s e-mails with her lawyer were not privileged. Holmes v. Petrovich Development Company, LLC, C059133 (3d Dist. January 13, 2011):
Among other things, we conclude that e-mails sent by Holmes to her attorney regarding possible legal action against defendants did not constitute “confidential communication between client and lawyer” within the meaning of Evidence Code section 952. This is so because Holmes used a computer of defendant company to send the e-mails even though (1) she had been told of the company’s policy that its computers were to be used only for company business and that employees were prohibited from using them to send or receive personal e-mail, (2) she had been warned that the company would monitor its computers for compliance with this company policy and thus might “inspect all files and messages ... at any time,” and (3) she had been explicitly advised that employees using company computers to create or maintain personal information or messages “have no right of privacy with respect to that information or message.”
By using the company’s computer to communicate with her lawyer, knowing the communications violated company computer policy and could be discovered by her employer due to company monitoring of e-mail usage, Holmes did not communicate “in confidence by means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted.” (Evid. Code, § 952.) Consequently, the communications were not privileged.
Public Defenders Sue 23 New Orleans Judges by Sabrina Canfield in Courthouse News Service:
The Louisiana Public Defender Board sued 23 New Orleans judges who fail to collect a $35 fee from criminal defendants who appear before them. The fee, which is mandatory, helps fund public defenders offices, and the judges' refusal to collect it has resulted in "critical underfunding" of the New Orleans Public Defender's Office, according to the complaint.
Louisiana is the only state that doesn't fund most of the cost of indigent defense through state and local budgets. Instead, most of its money comes from the courts themselves, through traffic fees and fines and - in theory - in $35 fees from criminal defendants.
Although the District Court held that the government violated California CPR 2-100, the Ninth Circuit disagrees and holds that using a fake subpoena with a snitch to get a represented person to incriminate himself did not violate the rule nor require suppression. United States v. Corona, 09-50235 (9th Cir. January 6, 2011):
The use of a false subpoena attachment did not cause the cooperating witness, Haidl, to be any more an alter ego of the prosecutor than he already was by agreeing to work with the prosecutor. Haidl was acting at the direction of the prosecutor in his interactions with Carona, yet no precedent from our court or from any other circuit, with the exception of Hammad, has held such indirect contacts to violate Rule 2-100 or similar rules. See Powe, 9 F.3d at 69; Kenny, 645 F.2d at 1339; United States v. Ryans, 903 F.2d 731, 739 (10th Cir. 1990) (disagreeing with Hammad and “agree[ing] with the majority of courts which have considered the question that [the no-contact rule] was not intended to preclude undercover investigations of unindicted suspects merely because they have retained counsel”) (collecting cases).
The false documents were props used by government to bolster the ability of the cooperating witness to elicit incriminating statements from a suspect. The district court appears to have been concerned that by allowing such conduct a suspect could be “‘tricked’ into giving his case away by opposing counsel’s artful questions,” but it has long been established that the government may use deception in its investigations in order to induce suspects into making incriminating statements. See, e.g., Sorrells v. United States, 287 U.S. 435, 441 (1932) (“Artifice and stratagem may be employed to catch those engaged in criminal enterprises.”). The use of fake documents here was just such a stratagem. The reasoning of the Third Circuit in United States v. Martino, 825 F.2d 754 (3d Cir. 1987), rejecting a claim of a prosecutorial ethical violation based on a fake subpoena, seems to us particularly persuasive:
If government officials may pose as non-existent sheiks in an elaborately concocted scheme, supply a necessary ingredient for a drug operation, and utilize landing strips, docking facilities, and other accouterments of an organized smuggling operation, all in order to catch criminals, then their use of a subpoena in the name of an undercover agent to enable him to retain his credibility with suspected criminals seems innocuous by comparison. Id. at 760 (internal citations omitted).
Id. at 760 (internal citations omitted).
Issue: Whether a state habeas petitioner is entitled to relief when his counsel deficiently advises him to reject a favorable plea bargain but the defendant is later convicted and sentenced pursuant to a fair trial.
Issue: Contrary to the holding in Hill v. Lockhart, 474 U.S. 52 (985)--which held that a defendant must allege that, but for counsel's error, the defendant would have gone to trial--can a defendant who validly pleads guilty successfully assert a claim of ineffective assistance of counsel by alleging instead that, but for counsel's error in failing to communicate a plea offer, he would have pleaded guilty with more favorable terms?
In addition to the questions presented by the petitions the Parties are directed to brief and argue the following question:
“What remedy, if any, should be provided for ineffective Assistance of counsel during plea bargain negotiations if the Defendant was later convicted and sentenced pursuant to Constitutionally adequate procedures?”
Why Defend The Accused? by Norm Pattis on PattisBlog (Dec. 31, 2010):
"Why the defense of those accused of crimes?" It is a natural enough question. I stop to ponder it today after being accused of a species of immorality for my chosen profession. Defending those accused of rape, murder, robbery, theft, the abuse of children: Who but a monster would chose to walk where demons fear to tread?
Why? Why this choice, when there are so many paths?
I can offer five reasons. Each reflect personal and idiosyncratic convictions and perspectives.
U.S. Ethics Codes
PR (Eng), PR (Esp.), VI, Guam, CNMI
U.S. Attorney's Manual
28 U.S.C. § 530B
28 C.F.R. § 77.1 et seq.
Texas DP Counsel Stds
Canadian Law Society Rules
International Tribunal Rules
Other Ethics Sources
IRS Form 8300 (Eng.)
IRS From 8300 (Sp.)
26 U.S.C. § 6050I
NACDL Ethics Opinions
Federal Defenders Training Branch [new]
SSRN Legal Ethics & Professional Responsibility
Findlaw (Legal Ethics)
Findlaw (6th Amendment)
ABA/ALI Lawyers' Manual on Professional Conduct $
American Legal Ethics Library
Georgetown Journal of Legal Ethics
JD Supra (download legal docs)
USF Law Library Legal Ethics Research
USF Center for Applied Legal Ethics
U.Minn. Researching Legal Ethics
National Association of Criminal Defense Lawyers (NACDL)
National Legal Aid and Defenders Association (NLADA)
Association of Federal Defense Attorneys (AFDA)
Federal Defenders, fd.org
Capital Defense Network
National Association of Criminal Defense Lawyers (NACDL)
National Legal Aid and Defenders Association (NLADA)
Association of Federal Defense Attorneys (AFDA) //
Federal Defenders, // Capital Defense Network
Am. Constitutional Law Society
A Public Defender
Arbitrary and Capricious
Austin Criminal Defense Lawyer
Calling of Criminal Defense
Capital Defense Weekly
Crime & Federalism
Criminal Defense Law
Dallas Criminal Defense Lawyer
Defending People: The Art and Science of Criminal Defense Trial Lawyering
The Defense Rests
Ernie the Attorney
Grits for Breakfast
I'm a PD
Indiana Public Defender
I Respectfully Dissent
Law: The Afterlife
Lawyers, Guns & Money
Lawyers with Depression
Legal Blog Watch
Legal Ethics Forum
Life at the Bar
Lowering the Bar
May It Please the Court
Macando Law (P.R.)
Not Guilty No Way
Obtaining Foreign Evidence
Out of the Box Lawyering
Public Defender Dude
Public Defender Law Clerk
Public Defender Revolution
PULSE Criminal Justice
Seventh Circuit Blog
Tales of PD Investigator
The Best Defense
Truth, Justice, Pizza
White Collar Blog
Women of the Law
"A lawyer shall represent a client zealously within the bounds of
—§ 1:1, Rule 3(a) (not "should" from CPR Canon 7)
"I simply want to tell you that there are some men in this world who were
born to do our unpleasant jobs for us. Your father is one of them."
—Harper Lee, To Kill a Mockingbird, ch. 22, p. 197 (1960)
"The very premise of our adversary system of criminal justice is that partisan
advocacy on both sides of a case will best promote the ultimate objective that
the guilty be convicted and the innocent go free."
—Herring v. New York, 422 U.S. 853, 862 (1975)
"The right to the effective assistance of counsel is thus the right of the
accused to require the prosecution's case to survive the crucible of meaningful
adversarial testing. When a true adversarial criminal trial has been conducted
... the kind of testing envisioned by the Sixth Amendment has occurred. But
if the process loses its character as a confrontation between adversaries, the
constitutional guarantee is violated."
—United States v. Cronic, 466 U.S. 648, 655-56 (1984)
"The only real lawyers are trial lawyers, and trial lawyers try cases to juries."
"The right to offer the testimony of witnesses, and to compel their attendance,
if necessary, is in plain terms the right to present a defense, the right to
present the defendant's version of the facts as well as the prosecution's to
the jury so it may decide where the truth lies. Just as an accused has the right
to confront the prosecution's witnesses for the purpose of challenging their
testimony, he has the right to present his own witnesses to establish a defense.
This right is a fundamental element of due process of law."
—Washington v. Texas, 388 U.S. 14, 19 (1967)
"[T]he Constitution guarantees criminal defendants 'a meaningful opportunity
to present a complete defense.'"
—Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)).
"[O]ur so-called adversary system is not adversary at all; nor should it be.
But defense counsel has no comparable obligation to ascertain or present the
truth. Our system assigns him a different mission. He must be and is interested
in preventing the conviction of the innocent, but, absent a voluntary plea of
guilty, we also insist that he defend his client whether he is innocent or guilty.
... [A]s part of our modified adversary system and as part of the duty imposed
on the most honorable defense counsel, we countenance or require conduct which
in many instances has little, if any, relation to the search for truth."
—Justice White concurring and dissenting in U.S. v. Wade, 388 U.S. 218, 256-58 (1967)
We, as criminal defense lawyers, are forced to deal with some of the lowest
people on earth, people who have no sense of right and wrong, people who will
lie in court to get what they want, people who do not care who gets hurt in
the process. It is our job–our sworn duty–as criminal defense lawyers,
to protect our clients from those people.