Welcome! We would like you to join our community as we promote study of, and debate regarding, the professional responsibility of lawyers. Although our blog will serve as a resource for users of Professional Responsibility: A Contemporary Approach (2010), the current developments, innovative teaching materials, and commentary should be thought-provoking and fun for all those interested in the legal profession. Please feel free to share your ideas and we will post as much as we can.
Some good class discussion questions on this one arising from the DOJ IG’s report on former U.S. Attorney Dennis Burke’s leaks to the NY Times and Fox News in the `Fast and Furious’matter.
The DOJ maintains its own `private’ disciplinary office (OPR) which in practices preempts action by the state licensing authorities who are the source of the law license of every lawyer in the country. [The OPR process has been criticised in the Yale Law Journal online by Professor Green for excessive secrecy.]
The OIG’s report here asks OPR to investigate Burke’s conduct and to determine if the former prosecutor violated the rules of professional conduct of “any state bar of which he is a member”.
Did he? RPC 3.3 – Candor to the tribunal comes to mind – but the OIG is not a tribunal. The former “appearance of impropriety standard” served as a catch-all, but it is gone. How about RPC 3.8 special responsibilities of a prosecutor?
rompted by the disclosure that U.S. Justice Department lawyers hid favorable evidence from the defense in the prosecution of the late Senator Ted Stevens of Alaska, Lisa Murkowski (R-Alaska) last year sponsored the Fairness in Disclosure of Evidence Act of 2012. The measure had bi-partisan support including from the late Sen. Daniel Inouye. But the bill died in committee and has not been introduced again this term. It premise is simple. It goes beyond the constitutional mandate of Brady v. Maryland to disclose materially exculpatory evidence, a highly subjective and therefore problematic judgment, to declare a “Duty To Disclose Favorable Information”:
In a criminal prosecution brought by the United States, the attorney for the Government shall provide to the defendant any covered information–‘(1) that is within the possession, custody, or control of the prosecution team; or
‘(2) the existence of which is known, or by the exercise of due diligence would become known, to the attorney for the Government.
Violation would enable a range of discretionary remedies including court costs, adjournments, disclosure, new trial, and imposition of attorneys fees and costs by the United States if it is found to be in violation of the duty. In a new study in the Mercer Law Review casebook co-author Fordham law professor Bruce Green urges adoption of the “favorable evidence” standard.
Today there is wide recognition that there is a crisis of representation due to the unavailability of counsel for huge numbers of aliens facing removal from the country.
A step forward has now been crafted in an important ruling by a federal judge in California’s Central District – a place where the pastures of plenty are often harvested by immigrants. Though the numbers affected are small, the remedial innovation is important. In Franco-Gonzalez v. Holder federal District Judge Holly Gee in 2011 certified a class of “mentally disabled immigrant detainees who are held in custody without counsel”. She has now held that the Rehabilitation Act [29 USC 794]- which bars discrimination by an Executive Agency – compels the Department of Justice’s Executive Office of Immigration Review [EOIR] to provide class members with a “Qualified Representative” as a reasonable accommodation of disability.
The Oyez Project has completed its audio archive of Supreme Court arguments going back to 1955.
But the accounts so far have not mentioned the groundbreaking role of Peter Irons, the crusading lawyer/historian whose May It Please the Court presented the audio of twenty two landmark cases. He continues his landmark work in current efforts to get the U.s. Supreme Court to repudiate is decision in Korematsu v. U.S.
The headline aside, this is actually a pretty favorable portrait of former prosecutor, now defense lawyer Douglas G. Rankin. He denies using delay as a tactic. It’s a profile that can be the basis for a good discussion of what it means to be a good lawyer.
Times business columnist Gretchen Morgenson identifies cases like that against Sun Trust as opportunities for newly confirmed S.E.C. chair Mary Jo White. Skepticism is in order. After stepping down as U.S. Attorney she and her husband enriched themselves representing those she is now charged with overseeing, and where appropriate, prosecuting. It is not easy to bite the hand that so recently well-fed you.
Times Reporter Peter Lattman summarized recently just how complex is the web of interests which White and her husband John (a Cravath partner and former S.E.C. offical) must unwind or keep at arm’s length. It leads ne to ask is it even possible? D they know too much and own too much to ever be reliably independent protectors of the public interest?
The lawyer’s duty of competence can be compromised by the lawyer’s financial resources. Here the federal budget impasse known as the “sequester” has sharply limited the ability of the federal public defender in a case that involves complex problems created by witnesses abroad, massive documents, translation costs, and other extraordinary expenses. The court’s duty to assure a fair trial creates a dilemma. Should the judge order a CJA lawyer to conduct the defense?