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Law of Criminal Defense - Archives for: August 2011

Archives for: August 2011


Permalink 01:34:36 pm, by forhall, 91 words, 5486 views   English (US)
Categories: blog

ABAJ: TN wants to give indigent defense work to the low bidders

ABAJ: Tenn. Proposal Would Give Some Indigent Defense Work to Low-Bidding Lawyers:

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.

Permalink 06:06:14 am, by forhall, 70 words, 5820 views   English (US)
Categories: blog

ABAJ: MD criminal defense lawyer accused of money laundering and tax evasion from hoarding cash fees

ABAJ: Criminal Defense Lawyer Accused of Hoarding $1.3M in Client Payments to Evade Income Tax:

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.


Permalink 02:38:51 pm, by forhall, 113 words, 6062 views   English (US)
Categories: blog

ABAJ: Criminal Defense Lawyer Charged with Disorderly Conduct Over Argument with Prosecutor

ABAJ: Criminal Defense Lawyer Charged with Disorderly Conduct Over Argument with Prosecutor:

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."


Permalink 02:04:45 pm, by forhall, 355 words, 6612 views   English (US)
Categories: blog

Two ABA Formal Opinions on lawyer email

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


Permalink 10:50:54 am, by forhall, 56 words, 6298 views   English (US)
Categories: blog

ABAJ: PD punched by defendant in court (video) 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.


Permalink 12:02:30 pm, by forhall, 136 words, 6789 views   English (US)
Categories: blog

CA2: Jail telephone call to sister to pass on information to lawyer not privileged

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.

Permalink 11:58:00 am, by forhall, 151 words, 6637 views   English (US)
Categories: blog

ABAJ: "Associate Who ‘Closed’ Files of Law Firm Clients He Wanted for His Future Solo Practice is Disbarred"

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.


Permalink 01:42:16 pm, by forhall, 111 words, 6612 views   English (US)
Categories: blog

ABAJ: Criminal defense lawyer indicted under RICO for allegedly bribing judge

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.

See Austin Statesman-American.

Permalink 01:36:14 pm, by forhall, 103 words, 5960 views   English (US)
Categories: blog

ABAJ: Brooklyn trial judge complains of homicide lawyers' inexperience Judge Scolds Levi Aron’s Lawyers for Inexperience, Facebook Posts and Misspelled Word:

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. ...


Permalink 10:58:50 am, by forhall, 152 words, 6129 views   English (US)
Categories: blog

ABA Formal Opinion 11-458: Changing Fee Arrangements During Representation

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).


Permalink 10:36:48 am, by forhall, 72 words, 6738 views   English (US)
Categories: blog

MI criminal defense lawyer to be sanctioned for violating privilege during sentencing

ABAJ: Criminal Defense Lawyer Awaits Penalty for Telling Judge His Client Confessed to a Shooting:

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.


Permalink 04:35:00 pm, by forhall, 53 words, 5832 views   English (US)
Categories: blog

ABAJ: Prominent IN criminal defense lawyer charged with meth lab 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.


Permalink 10:42:50 am, by forhall, 423 words, 5705 views   English (US)
Categories: blog

NY1: Starting suppression hearing without defense counsel present, who was in another court, was denial of right to counsel

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 [1995]). The deprivation of counsel has been described as absolute and harmful per se (see People v Margan, 157 AD2d 64, 65-66 [1990]). 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 [1942]). 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 [1996], lv denied 88 NY2d 943 [1996]).

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 [2006]). ...


Permalink 04:09:43 am, by forhall, 132 words, 6510 views   English (US)
Categories: blog

TX criminal defense lawyer caught in sting getting cocaine from client 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.


Permalink 06:38:44 am, by forhall, 121 words, 5620 views   English (US)
Categories: blog

CalBar: Contract PD disbarred for sex with incarcerated client

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?


Permalink 09:39:46 pm, by forhall, 142 words, 6440 views   English (US)
Categories: blog

Volokh: "How Long a Nap Is Ineffective Assistance of Counsel?"

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.


Permalink 12:02:47 am, by forhall, 162 words, 9255 views   English (US)
Categories: blog

Texas "lawyer who worked for cartels sentenced to 30 months" Laredo lawyer who worked for cartels sentenced to 30 months, assessed $30K fine:

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.


Permalink 10:57:41 pm, by forhall, 460 words, 8622 views   English (US)
Categories: blog

VA: Defense lawyer and prosecutor cannot agree to plea agreements waiving IAC claim

Legal Ethics Opinion 1857

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.

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    "A lawyer shall represent a client zealously within the bounds of the law."
      —§ 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."
      —Clarence Darrow

    "America was neither founded, nor freed, by the well-behaved."
      —Semmes Luckett the younger

    "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.
      —Cynthia Roseberry


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