Yesterday, on September 16, 2015, in the New York State Supreme Court in Manhattan, the jury began deliberating whether the three former executives of the now defunct law firm of Dewey & Leboeuf conspired to manipulate the finances in an effort to defraud investors and bank lenders. In a daring move, defense lawyers chose not to call any witnesses and rested their case. For more detailed information about the trial, it is reported that one legal newswire, Law360, has been live blogging the event. Warning: the testimony “has often been dull and focused on arcane accounting treatments.” Latest news of the trial can be found here. Prior posts can be found here and here.
A new ethics opinion on confidentiality by the Indiana State Bar Association Legal Ethics Committee reaches some puzzling conclusions. The committee considered whether Indiana’s mandatory reporting statute for suspected child abuse or neglect required a lawyer who learns of such abuse or neglect while representing a client must report it. While acknowledging that the Indiana Supreme Court is the final authority on both the law and ethics in Indiana, the committee concluded that a lawyer was not required to report the suspected abuse unless the lawyer believed it necessary to prevent reasonably certain death or substantial bodily harm. While that seems reasonable on its face, the committee made several leaps in reasoning to get there and may have provided some ill advice to lawyers in Indiana.
Unlike some other states, Indiana’s reporting statute does not exempt lawyers from the reporting duty. That means, unless the Indiana Supreme Court would step in and decide that the state’s Rule 1.6 trumps the state law, a lawyer who follows the opinion could be prosecuted for failing to report. In addition, the committee fails to acknowledge that Indiana’s Rule 1.6, like the ABA Model Rule, contains that confidentiality exception “to comply with other law or court order.”
Next, the committee inexplicably reasoned that because of the mandatory reporting law a lawyer must report suspected abuse or neglect “to prevent reasonably certain death or substantial bodily harm” even though the exceptions to confidentiality in Indiana’s Rule 1.6, like in the ABA Model Rule, state that a lawyer may reveal information relating to a client’s representation in order to prevent reasonably certain death or substantial bodily harm.
The ethics opinion may state a good policy position, but the committee goes out on limb by creatively trying to reconcile a lawyer’s ethical and legal obligations in such a situation. As it stands now, there is a direct conflict between the mandatory reporting law and the ethics rules, and the ethics opinion does not resolve this quandary for lawyers in Indiana.
An exemplary lawyer. The first Black woman to be editor of the Columbia Law Review, clerk to Judge Constance Baker Motley, member of the legal team in Furman v.Georgia. – gwc
by David Stout
Judge Richard Posner exhibited an extraordinary passion for justice when he wrote “It is heartless to make a fetish of adversary procedure if by doing so feeble evidence is credited because the opponent has no practical access to offsetting evidence.” The prolific 7th Circuit judge was writing in Rowe v. Gibson. The court reversed the grant of summary judgment and dismissal to defendant prison officials who were alleged to have been deliberately indifferent to plaintiff’s medical condition in violation of the cruel and unusual punishment clause of the Eighth Amendment. Rowe claims prison officials callously withheld and administered the medication necessary for care of his reflux esophagitis – GERD.
Like his colleagues Posner found Rowe’s claims sufficient to reverse grants of summary judgment. Posner disputed the credentials of credentials of the prescribing physician – a defendant who testified as an expert in his own defense, in a field not his own. To reach and support his conclusions – and doubtless fueling his anger – Posner conducted his own independent research about the drug commonly known as Zantac. Posner gathered materials from the drug’s manufacturer GlaxoSmith Kline, and widely relied upon authoritative sources such as the National Institutes of Health, the Mayo Clinic, Web MD and Wikipedia in discussing the pro se plaintiff’s physical condition and legal claims.
Posner’s efforts were sharply criticized by his colleague David Hamilton. He took exception to Judge Posner’s reliance on the sources, finding them to be investigations of fact, beyond the scope of what is permitted of a neutral magistrate. – gwc
Those of you who are teaching Chapter 6, Part II (Duties to Third Parties and to the Law) may want to refer to the ongoing criminal trial of three former executives of Dewey & LeBoeuf, who are being tried for larceny, fraud and falsifying business records. The trial began in late May and the defense team plans to formally rest its case on Tuesday without calling a single witness. Prosecutors working under Manhattan district attorney Cyrus R. Vance, Jr. have called more than 40 witnesses to support the prosecution’s case. Recent update on the case can be found here. Prior blogpost can be found here.
Adam Liptak recently reported in the New York Times that racial strike patterns in jury selection is widespread – and often without consequence.
In the days before Batson v. Kentucky(1985) when I was trying cases for the Public Defender and Joseph Donahue was an Assistant County Prosecutor in Newark New Jersey we (defenders and prosecutors) with scarcely a second thought peremptorily struck jurors on the basis of their race and gender. Blacks were routinely stricken by the prosecutors, and we struck anyone who had a third cousin who was a cop, or was Italian from a town we considered racist.
When we once got the bright idea to object – in a case where Joe (now Judge) Donohue was the prosecutor – the judge brushed our objection aside saying “I will not have attorneys in my courtroom accusing each other like that”. Now – over 30 years later – an Appellate Division panel in New Jersey has reversed car jacking convictions won in Donohue’s courtroom, In a pointed message they instructed the judge and prosecutor that a casual attitude toward racial prejudice is unacceptable. The lesson is as apt for civil cases as it is for criminal cases.
The harm of sterotyping is not merely to the parties – plaintiff or defendant. As Louisiana attorney James Doyle argued to the Supreme Court in Edmonson v. Leesville Concrete [501 U.S. 614 (1991)] the insult, the equal protection violation, extends to the excluded juror, as this film from the Annenberg Center explains.
The Rules of Professional Conduct provide little guidance. In fact the Comments to MRPC 8.4 specifically state that a judge’s finding that a peremptory challenge was “exercised on a discriminatory basis does not alone establish a violation of this rule.” Does such a soft touch explain in part Judge Donohue’s “we all have some prejudice in us” approach?
The Appellate Division of the Superior Court in State of New Jersey v. Brown the Appellate Division has reversed two convictions for first degree carjacking
“because the trial judge failed to remove a deliberating juror who disclosed her racial bias to two of her fellow jurors and to the judge. Specifically, on the second day of deliberations, Juror 4 told Jurors 5 and 12 she was “concerned” and “nervous” because she had seen two African-American men that morning in the neighborhood where she lives. Juror 4 noted, “[t]hey certainly don’t live around there, and they don’t hang around there.” Juror 5, who works in that area, agreed that this seemed strange because that area “mostly is Italian and White people. There really are no Black people around there.” Because both defendants are African-American, Juror 4 feared the presence of two African-American men in her neighborhood may have had some kind of sinister connection to the trial.”
Jurors 5 and 12 enouraged her to express her concerns – which she did to the Sheriff’s officer who advised the judge Joseph Donohue. After perfunctory questioning of jury number 4 the judge ruled on the motion to remove the juror, saying in open court in the presence of the jury:
I want to make one comment, and I’ve already ruled on this, but in terms of creating the record, there’s been an expression by [Juror 4] — and also [Juror 5] to a certain extent – – expressed some racial consciousness and potential racism by their comments. However, what they both said was that the circumstances were unusual, that the area in which they were, it would be unusual for someone who was Black to be in that area. I can’t say — I can’t say that myself. I don’t know whether any counsel can say it, but these individuals said that that was unusual. And [Juror 4] expressed some initial concerns with it. I don’t think that that’s even an expression of racism. [(Emphasis added).]
The Appellate Division harsh in its assessment of the judge:
These remarks coming from a sitting judge in a criminal trial are plainly inappropriate under any circumstances, but especially when they are uttered in a trial involving two African American defendants. A juror’s expression of “racial consciousness and potential racism” must be immediately repudiated, and the juror must be removed from the jury. Thereafter, the trial judge must conduct a thorough, comprehensive, and probing investigation to determine what influence the juror’s noxious sentiments had on other jurors. Here, the judge’s voir dire of Jurors 3, 5, and 12 was completely inadequate and fell far short of what was required.
“When Juror 4 inferred a sinister conspiratorial purpose from a facially innocuous event, based solely on the race of the participants, she revealed a deeply rooted, latent racial bias that required her removal from the jury… Her initial instinctive, subliminal association of race with criminality or wrongdoing far trumped her subsequent assurances of impartiality.”