International Comparisons

By Russell Pearce

We are planning to add a new feature to the next edition of the casebook that will compare U.S. rules and approaches to those internationally.  The will identify these comparisons as “international boxes” and we will have at least two for each chapter.  Prof. Laurel Terry of Penn State University, who is joining the casebook as a co-author, has written these boxes.  Please feel free to use them in your classes and to offer Prof. Terry any comments or suggestions you have that will assist in the writing of the next edition.

Global Perspective Boxes

Did Elizabeth Warren Commit Unauthorized Practice of Law?

Above the Law provides links to the raging debate on whether Professor and now Senate candidate Elizabeth Warren engaged in unauthorized practice of law in Massachusetts.  Evidently, she has represented parties while a professor at Harvard, even though she was not admitted to practice in the State.  The commentators linked in Above the Law debate the application of Rule 5.5 and the extent to which federal practice is exempt from the requirements of that Rule.

Bronx D.A. puts brakes on public housing trespass arrests

Robert Johnson – the Bronx D.A. – has taken the bold step of putting a spanner in the spokes of the street patrols that subject residents of public housing projects to a reign of random searches and, often arrest.  Prosecutors often have trouble remembering that the public, not the police, are their clients.  Cops and prosecutors are, naturally, a team.  But the culture of aggressive patrols which characterizes life on the street for many Black and Hispanic New Yorkers has eroded police (and prosecutors?)  respect for basic principles like the need for reasonable suspicion to stop a person and probable cause for arrest.  One of the nastiest tricks is to stop people,  compel them to empty their pockets, then arresting them for open public possession of the marijuana cigaret the unwarranted search forced into the open.  – GWC
The Times reports:
In the Bronx, Resistance to Prosecuting Stop-and-Frisk Arrests –
by Joseph Goldstein

In a significant blow to New York City’s use of stop-and-frisktactics, the Bronx district attorney’s office is no longer prosecuting people who were stopped at public housing projects and arrested for trespassing, unless the arresting officer is interviewed to ensure that the arrest was warranted.
Prosecutors quietly adopted the policy in July after discovering that many people arrested on charges of criminal trespass at housing projects were innocent, even though police officers had provided written statements to the contrary.
By essentially accusing the police of wrongfully arresting people, the stance taken by Bronx prosecutors is the first known instance in which a district attorney has questioned any segment of arrests resulting from stop-and-frisk tactics…..

Former Jenkins & Gilchrist Partner Pleads Guilty To Helping Clients with Fraudulent Tax Shelters

Donna Guerin, former Jenkins & Gilchrist partner, “agreed to pay $1.6 million” and plead guilty to “one count of conspiracy and one count of tax evasion.”  She “faces a maximum of 10 years in prison.”   Bloomberg News reports that:

Guerin admitted to helping advise clients on how to conduct complex transactions that allowed them to wipe out financial gains. Guerin said she also provided opinion letters to her clients helping them assert that the deals were legitimate.

Teaching Chapter 3 on Finding & Billing Clients?

If you’re teaching Chapter 3 on Finding & Billing Clients, you (and your students) might enjoy these resources:

1.  Here is an ad from Alexander & Catalano, complete with the “wisps of smoke, blue electrical currents, and special effects” described by Judge Calabresi in Alexander v. Cahill on page 223 of the casebook. (Click the image to play the ad).  2.  This video clip, just out from the recently-formed, British-based law firm (and ABS–alternative business structure–ala the UK’s Legal Services Act) Riverview Law, spoofs the hourly rate.  Riverview operates on a model of exclusively fixed-fee pricing. (Click the image to play the clip).3. Vivia Chen asks whether hourly billings are making lawyers anxious and depressed in this July 2012 article in The Careerist.4. If you don’t know about LawZam yet, check this out…the new lawyer-finding service has been compared to online speed dating. (Click the image to play a promo video).

Are prosecutors adequately complying with their discovery obligations under the constitution and other laws – including state ethics rules based on ABA Model Rule 3.8(d)?

By Bruce Green

Are prosecutors adequately complying with their discovery obligations under the constitution and other laws – including state ethics rules based on ABA Model Rule 3.8(d)?  Do prosecutors’ offices take sufficient measures to promote compliance?  These are among the hottest subjects of discussion in criminal justice.  The discussion has been fueled in recent years by the Duke lacrosse and Ted Stevens prosecutions, among others, in which prosecutors have been found to have acted improperly.  Connick v. Thompson and other recent Supreme Court cases also illustrate the problem, which was the subject of a two-day Cardozo Law School conference not long ago and will be addressed at an upcoming Mercer Law School symposium.  Illustrating that discussions can be not just hot but also heated, the NYS Bar Association and the state prosecutors’ association recently got into a contretemps over a column written by the criminal defense lawyer who chairs the bar association’s criminal justice section.  The prosecutors took offense at a suggestion that prosecutors’ offices train their lawyers to violate their discovery obligations.  The two associations have now reportedly reached what, one might hope, is a resolution of the disagreement.  Ideally, this will allow lawyers on both sides of the aisle to go back to work, live in peace, and perhaps even collaborate productively in the bar association and other fora to improve the criminal justice process for the public benefit.

You can read more here.

DAs, Debt Collectors, and the ABA Model Rules

By Bruce Green

A front-page NY Times article described partnerships between district attorneys and debt collection agencies.  Evidently, the agencies use DA letterhead to threaten to prosecute debtors unless they both make good on their bounced checks and pay an additional amount to fund an educational program on financial responsibility that they will then have to attend.  The prosecutors’ offices take a cut.

This scenario provides an opportunity to explore prosecutors’ special role and some of the limitations and obligations that come with it.  In particular, the scenario raises at least five questions relating to prosecutors’ role, responsibilities and exercise of discretion:

1. Evidently, no prosecutor is determining that there is a sound basis for threatening debtors with criminal prosecution.  A bounced check may not be enough in itself to establish a basis for a criminal prosecution if, for example, the checking account was overdrawn unknowingly.  May prosecutors threaten to prosecute individuals for writing bad checks without first determining that there is a basis – e.g., probable cause – to support a prosecution?  ABA Model Rule 3.8(a) requires probable cause before filing a charge.  Should the same be required before threatening to file one?

2. If some review of the evidence and exercise of judgment are necessary before making these threats, must they be made by a disinterested prosecutor, rather than by a collection agency acting with prosecutors’ authority and paying for the use of prosecutors’ letterhead?  Prosecutors have “the responsibility of a minister of justice,” says the Comment to ABA Model Rule 3.8.  Can they delegate that authority to a for-profit company acting on behalf of creditors who may or may not have legitimate civil claims?

3.  Do the prosecutors really intend to prosecute those who receive letters and do not make the demanded payments?  If the threats are empty, are the letters impermissibly misleading under ABA Model Rules 4.1(a) or 8.4(c)?

4. If the prosecutors do plan to carry out the threats, are they doing so for an improper purpose?  Prosecutors have vast discretion to decide whether to prosecute, or threaten to prosecute, bad check cases when there is evidence to support a charge.  But some bases for making this decision may be illegitimate.  One can imagine deciding to bring charges based on the amount of the check or the number of bounced checks.  But is it legitimate to single out debtors for threatened prosecution because a particular collection agency is paying the prosecutor’s office to do so?  Is this an abuse of power that is “prejudicial to the administration of justice” in violation of ABA Model Rule 8.4(d)?

5. Prosecutors may receive allegations of wrongdoing committed by the collection agencies with whom they are partnering – e.g., allegations that they defrauded debtors or committed frauds on the court.  If so, will the prosecutors have a conflict of interest under ABA Model Rule 1.7(a)(2) that interferes with their ability disinterestedly to investigate and address the allegations?  Do prosecutors have a duty to avoid partnering with collection agencies in order to avoid these possible conflicts?

NY Mandatory pre-admission pro bono rules announced

from the NY Law Journal

 Read the new rule on pro bono practice.

 Read the Press Release

Starting Jan. 1, 2015, every applicant to the bar will be required to fulfill the requirement. 

“I firmly believe that this will set the pace in the country,” Lippman said in an interview. “On every level it makes sense, for new lawyers, for the profession as a whole, for the legal services providers, for the judges. So I am really upbeat about it.”

Under the rule, 22 NYCRR §520.16, qualifying pro-bono work must be law-related.

“If you build houses for Habitat for Humanity, that doesn’t count,” Lippman said. “But if you do legal work for a non-profit like Habitat for Humanity, that could count.”

Approved pro bono work includes legal services for people of “limited means”; not-for-profit organizations; individuals or groups seeking to promote access to justice; and public service in the judiciary and state and local governments.

The work must be performed under the supervision of an attorney in good standing, a member of a law school faculty or a judge or attorney employed by the courts. Participation in law school clinics for which students receive credit would count.

Prosecutors who err repeatedly: ACLU of NJ Report

A careful study of prosecutorial conduct by the New Jersey ACLU reaches some unsurprising conclusions: that [a]s general rule, prosecutors in New Jersey deserve praise for avoiding repeated error in the overwhelming majority of cases. But there is nonetheless significant repeated prosecutorial error which requires “policies that provide for training, supervision and discipline.”  That “summation errors…continue to occur with “numbing frequency.” And that  courts must develop policies — including publicly naming offending prosecutors and reporting them to appropriate  bodies — that will ensure that prosecutorial error happens less often. 
The ACLU authors (including Rutgers law professor George C. Thomas, III) notably conclude, in their most dramatic recommendation that:

A system of mandatory reporting of all findings of prosecutorial error to the Office of the Attorney General would create a database to track prosecutors with repeated violations. 

Under this model, the Office of the Attorney General would be required to forward a complaint to the appropriate district ethics board whenever error contributed to a reversal of a conviction and whenever a prosecutor had been cited for a subsequent finding of error.


Trial and Error – A Comprehensive Study of Prosecutorial Conduct in New Jersey

 – ACLU of NJ
by Alexander Shalom and Prof. George Thomas

from the Executive Summary

As a whole, prosecutors understand the unique role they play in the administration of justice and take their responsibilities seriously. They seek diligently to avoid errors that could undermine both the integrity of the criminal justice system and the validity of their hard-fought convictions. They proceed confident in the knowledge that they seek not only convictions, but justice, and often without competitive remuneration.
When prosecutors err, and transgress rules established for their conduct, they generally learn from their mistakes and avoid repeated missteps. However, a small group of prosecutors commits multiple errors without seeming to learn from those missteps. This American Civil Liberties Union of New Jersey study aims to survey comprehensively prosecutorial error in New Jersey by examining the prevalence of error and determining which errors occur most frequently.
After compiling the foundational data, the study’s authors quantitatively analyzed the data’s meaning. Specifically, researchers examined the extent of inter-county disparities among rates of error, correlations between error and experience and prevalence of individual prosecutors with repeated instances of error.  The report examines the contexts in which prosecutors were cited for error on multiple occasions and explores the costs of prosecutorial error for criminal defendants,  for society and for individual prosecutors.

The Blind Sheikh’s Continued Influence

By Jere Keys
Sheikh Omar Ahmad Ali Adbel Rahman is a central figure in United States v. Stewart, the appellate decision excerpted in Chapter 6, which affirms the conviction of attorney Lynne Stewart and remands for consideration of increasing her sentence.   He is also known as The Blind Sheikh and remains a controversial influence on global politics almost 20 years after his involvement in the 1993 bombing of the World Trade Center. On September 11, 2012, inflamed by an anti-Muslim film made in the United States, protests erupted outside U.S. embassies in Muslim nations around the world leading to the killing of U.S. Ambassador Christopher Stevens in Libya. In Cairo, however, protests on that day were originally planned weeks in advance by terrorist group Jamaa Islamiya to demand the release of Rahman, as illustrated by this protest footage where a speaker declares “Our honor will be restored and we will be appeased when Dr. Omar Abd Al-Rahman is returned (to Egypt).”

Pro Bono “Bazooka v. mouse”

The New York Post headline reads:  Bazooka vs. mouse: City using free power lawyer to evict vendor .  The story describes how Proskauer Rose is representing the City pro bono in evicting a “longtime Greenwich newsstand operator beloved newsstand operator beloved by thousands of New Yorkers and made famous in feature films.”  The Post raises the question of whether representing Goliath against David is an appropriate use of pro bono legal services  What do you think?

Pennsylvania: Gideon fail New Jersey: Gideon fulfilled

The New Jersey Law Journal Editorial Board, commenting on the travesty that is Pennsylvania’s county-based Public Defender system, observes that the joint state government commission that studied the problem failed to point to the solution next door in New Jersey where the 550 lawyer statewide Office of the Public Defender has maintained independence and competence. That was most dramatically seen in the 25 years of capital defense from 1982 – 2007.  The capital defense unit tried over 200 cases.  Over 60 death sentences were handed down.  Yet no one had been executed when the legislature in 2007 replaced capital punishment with life without parole.- GWC

Gideon v. Wainwright and its progeny are the font of contemporary jurisprudence on the right to a fair trial. But this right too often has been honored in the breach and courts have struggled to implement the constitutional mandate. The National Right to Counsel Committee’s comprehensive 2009 report, “Justice Denied,” shows “there is uncontroverted evidence that funding still remains woefully inadequate and is deteriorating in the current economic difficulties that confront the nation. Because of insufficient funding, in much of the country, training, salaries, supervision, and staffing of public defender programs are unacceptable for a country that values the rule of law”.

Unfortunately, one of the most dramatic instances of that failure is in our neighboring state, Pennsylvania. It is the only state in the country which does not provide state funding of criminal defense for the indigent. Indigent defense is left to the counties. A thorough report by a committee of the Pennsylvania Supreme Court concluded in 2003 that “indigent criminal defendants are not assured of receiving adequate, effective representation.” Nothing changed. But the exposure of the dreadful corruption of juvenile justice by two now-jailed judges in Luzerne County prompted the Legislature to commission a new study. Its December 2011 report, “A Constitutional Default,” concluded that the “Kids for Cash scandal showed how failure to maintain professional independence of defense attorneys from political interference by the judiciary can create systemic injustice [and that] Pennsylvania’s overly localized indigent defense system can lead to inadequate supervision and training, which in turn can lead to a shocking deterioration in professional standards….

…[In New Jersey the statewide Office of the Public Defender] demonstrated the necessity of, and provided key support for, our Supreme Court’s unparalleled proportionality review of capital cases. The OPD’s participation from beginning to end in nearly every capital case made possible our Supreme Court’s commitment that, as Justice John Wallace Jr. observed, “[w]hen life hangs in the balance, error has no place.”

Client Knocks Down Lawyer — The Attorney-Client Relationship

When we discuss the allocation of decision-making between lawyer and client, I always emphasize that the lawyer-client relationship is first and foremost a relationship and that the rules must be understood in that context.  So that I don’t come across as too pedantic — and to underscore the point with humor — I used this video of a client knocking down a lawyer:

H/T Ivan Torres.