Should a prosecutor-turned-justice recuse in an appeal on a case where he sought the death penalty?

From NPR News:

The U.S. Supreme Court hears arguments [today] testing whether a Pennsylvania Supreme Court justice violated the U.S. Constitution when he ruled in a death penalty case that he had been involved with as a prosecutor.

At issue is whether then-Chief Justice Ronald Castille, by refusing to recuse himself, denied the defendant, Terrance Williams, a fair hearing.

Full story and link to the audio clip here.

Deferred Prosecution Agreements Reached with Former Dewey & LeBoeuf Lawyers

It’s always a good idea to remind your students to be careful if they should ever take on the responsibility of managing a law firm, especially in times of financial bust. If you have been following the Dewey & LeBoeuf criminal trial, you know that the jury deadlocked in October of last year on dozens of charges against Steven H. Davis, the former chairman of Dewey, and two other former executives of the law firm, Stephen DiCarmine and Joel Sanders. The three men were accused of being the architects of an accounting fraud that enabled Dewey to defraud its lenders and creditors during much of the financial crisis.

In January of this year, Manhattan prosecutors reached a deferred prosecution agreement with Steven H. Davis. The agreement runs for five years and prohibits Davis from practicing law in New York during that period.

In February, prosecutors reached a deferred prosecution agreement with Zachary Warren, one of the four original defendants, just weeks before he was supposed to go on trial in the New York State Supreme Court in Manhattan. Notably, Warren was not a lawyer when he worked as the client relations manager at Dewey & Leboeuf. After leaving Dewey, he went on to graduate from Georgetown Law Center and clerked for a federal judge.  He plans on working at Williams & Connolly in the fall.   The agreement requires Warren to perform 350 hours of community service as part of a one year agreement.

The Manhattan prosecutors are planning to retry the case against DiCarmine and Sanders.

Articles about the agreements reached with Davis and Warren can be found here and here.

Spotlight and the role of lawyers

I’ve only seen one of the films nominated for an Oscar this season—Spotlight—and it has haunted me. (Fair warning: spoilers ahead, though the film is well worth viewing even knowing how it unfolds.)

This gripping film recounts the true story of Boston Globe editor Marty Baron’s decision to assign the newspaper’s “Spotlight” team of investigative reporters to examine sex abuse allegations against Catholic priest John Geoghan. The reporters’ interviews of victims and efforts to unseal sensitive court documents eventually led them to what we now know was an extensive cover-up of abuse by the Roman Catholic Church over many years involving not just Geoghan but thousands of priests. (The Globe won the 2003 Pulitzer Prize for Public Service based upon this reporting.) The film features brilliant acting by Michael Keaton as editor Walter “Robby” Robinson, Rachel McAdams as reporter Sacha Pfeiffer, and Mark Ruffalo as reporter Michael Rezendes, among others. Most intriguing to me, however, was the role of lawyers in the film, including Erik MacLeish, who represented numerous abuse victims in securing private settlements, and Jim Sullivan, who defended priests accused of abuse and was a long-time friend of Robby Robinson.

The film raises significant questions about legal ethics and personal morality. How do we reconcile the sanctity of confidentiality and attorney-client privilege against the moral dilemma of knowledge about a client’s outrageous acts? It is one thing to maintain confidentiality in representing someone accused of an isolated crime that occurred in the past, but what if a lawyer has information that could prevent hideous child abuse from occurring in the future?

Robinson repeatedly asks Sullivan to become a confidential source by confirming the names of child molesting priests as the Globe’s list of suspects grows. Sullivan struggles—the film captures this beautifully and painfully—then finally relents, confirming dozens of names on the Globe’s list.

MacLeish obtains settlements for hundreds of victims, all subject to strict confidentiality agreements. His work is critiqued by the reporters as essentially being a cottage industry at the expense of future victims, because the settlements prevent the abuse from becoming public. MacLeish maintains that the short statute of limitations and statutory cap on recovery made settlement the best possible outcome for his clients. Perhaps that is true for the individuals he represented; but what about the children who continued to be abused? Does settlement in a situation like this achieve justice or undermine it? (Read Owen Fiss’s Against Settlement for more on that topic.) Here again, MacLeish faces the moral dilemma of whether or not to reveal confidential information. We learn late in the film that he sent information to the Globe many years before the Spotlight investigation occurred; the Globe failed to follow up on it.

What is the role of lawyers in a massive abuse scandal of this nature? Should there be an exception to client confidentiality protections or attorney-client privilege? Does Model Rule 1.6’s exception for breaching confidentiality to prevent an act that is reasonably certain to result in substantial bodily harm apply here?

This article from the Globe’s Spotlight team reporting on the abuse scandal in 2002 offers some answers while at the same time raising even more questions:

“Plaintiff lawyers settle cases confidentially all the time,” said Paul J. Martinek, editor and publisher of Lawyers Weekly USA, a professional journal. “But if you know your client’s been raped by a priest and you settle the case confidentially, knowing that the priest could go out and do it again, your hands aren’t entirely clean.”

Middlesex District Attorney Martha Coakley has also had harsh words for some attorneys who represent victims of priests, saying in an interview that “the plaintiff lawyers bear some responsibility” for keeping abuse by priests out of the public eye by settling cases confidentially.

Looking back, silence has become hard to take

Boston attorney Laurence E. Hardoon, who took on his first clergy sex abuse client in 1992 and has since handled between 20 and 30 such cases, reflected on his role in this ugly chapter with a twinge of regret.

“If we had any inkling whatsoever of the magnitude of harm that was out there, maybe we, as a joint group of plaintiff lawyers, would have tried to encourage our clients to be outspoken in many cases,” said Hardoon, who formerly served as a Middlesex assistant district attorney. “It’s hard not to look back and say the greater good would really have been served by the lack of secrecy earlier on.”

Jeffrey A. Newman, of the Boston firm Newman & Ponsetto, has represented scores of alleged clergy sex abuse victims, and voiced a public mea culpa over his involvement in a handful of earlier cases that he settled secretly.

“Had I been more astute, I probably could have recognized the problems better,” Newman said. “I just never took the time to examine them closely enough.”

But MacLeish, Hardoon, Newman, and other plaintiff lawyers also say they were hamstrung by restrictive state laws that limited their ability to press charges against alleged offenders. They also blame legislators for failing, until recently, to require church officials to report suspected abuse. They and others have also pointed a finger at judges, prosecutors, and the press for being too deferential to the church over a long period of time.

They argue they were torn between their obligation to zealously represent their damaged clients, few of whom wanted their personal lives exposed in a courtroom, and the church’s reluctance to settle cases without confidentiality clauses. As a result, some legal experts say, secrecy was often the only option.

“If you can get $100,000 or $500,000 for your client and the price of that is silence, the lawyer’s sort of in a bind,” said Andrew L. Kaufman, who teaches ethics at Harvard Law School and sits on ethics committees for the Massachusetts Bar Association and Supreme Judicial Court.

“Ultimately, it’s the client who instructs the lawyer on whether to accept the offer,” Kaufman said. “And as long as a confidential settlement is lawful, sometimes a lawyer’s got no choice but to accept it.”

(Cross-posted at the Legal Ethics Forum)

A Responsibility I Take Seriously : SCOTUSblog

Source: A Responsibility I Take Seriously : SCOTUSblog

A Responsibility I Take Seriously : SCOTUSblog

by Barack Obama

The Constitution vests in the President the power to appoint judges to the Supreme Court. It’s a duty that I take seriously, and one that I will fulfill in the weeks ahead.

It’s also one of the most important decisions that a President will make. Rulings handed down by the Supreme Court directly affect our economy, our security, our rights, and our daily lives.

Needless to say, this isn’t something I take lightly. It’s a decision to which I devote considerable time, deep reflection, careful deliberation, and serious consultation with legal experts, members of both political parties, and people across the political spectrum. And with thanks to SCOTUSblog for allowing me to guest post today, I thought I’d share some spoiler-free insights into what I think about before appointing the person who will be our next Supreme Court Justice.

First and foremost, the person I appoint will be eminently qualified. He or she will have an independent mind, rigorous intellect, impeccable credentials, and a record of excellence and integrity. I’m looking for a mastery of the law, with an ability to hone in on the key issues before the Court, and provide clear answers to complex legal questions.

Second, the person I appoint will be someone who recognizes the limits of the judiciary’s role; who understands that a judge’s job is to interpret the law, not make the law. I seek judges who approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice, a respect for precedent, and a determination to faithfully apply the law to the facts at hand.

But I’m also mindful that there will be cases that reach the Supreme Court in which the law is not clear. There will be cases in which a judge’s analysis necessarily will be shaped by his or her own perspective, ethics, and judgment. That’s why the third quality I seek in a judge is a keen understanding that justice is not about abstract legal theory, nor some footnote in a dusty casebook. It’s the kind of life experience earned outside the classroom and the courtroom; experience that suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly changing times. That, I believe, is an essential element for arriving at just decisions and fair outcomes.

A sterling record. A deep respect for the judiciary’s role. An understanding of the way the world really works. That’s what I’m considering as I fulfill my constitutional duty to appoint a judge to our highest court. And as Senators prepare to fulfill their constitutional responsibility to consider the person I appoint, I hope they’ll move quickly to debate and then confirm this nominee so that the Court can continue to serve the American people at full strength.

– See more HERE

New Social Media Opinions: West Virginia and Colorado | Legal Ethics in Motion

Source: New Social Media Opinions: West Virginia and Colorado | Legal Ethics in Motion

from the Professional Responsiblity Program at U of Miami Law School:

New Social Media Opinions: West Virginia and Colorado | Legal Ethics in Motion
by Professional Responsibility and Ethics Program (PREP) //University of Miami School of Law

Recently, two more states, West Virginia and Colorado, joined the legal ethics conversation regarding social media, issuing opinions that are generally consistent with most other states’ social media opinions.

In September 2015, the Lawyer Disciplinary Board of West Virginia issued new social media and social networking guidelines titled “Social Media and Attorneys.” Specifically, the Board addressed the following topics: attorney competency, taking down posts, avoiding contact with represented persons, contacting unrepresented persons, monitoring third-party reviews and endorsements, protecting confidentiality, honesty in endorsing other lawyers, researching jurors, friending judges, and avoiding inadvertent lawyer-client relationships.

The Board concluded in part that attorneys may not make statements on social media that the attorney knows or reasonably knows will be disseminated publicly and will have “a substantial likelihood of materially prejudicing an adjudicative proceeding,” subject to certain exceptions listed in the rule on trial publicity. Additionally, the Board opined that attorneys may accept client reviews but must monitor the reviews for accuracy. Regarding advising clients on their social media presence, the Board concluded that attorneys may advice their clients to change the privacy settings of their social media pages, but attorneys may not instruct their clients to “destroy, alter, or conceal any relevant content on their social media pages.” Instead, attorneys must take the appropriate steps to preserve the information in the event that it is discoverable or relevant to the clients’ cases.
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In a nutshell, both opinions conclude that lawyers must comply with the ethics rules when using social media just as when using other forms of communication.
To read the full West Virginia opinion, click here. To read the full Colorado opinion, click here.

When the Public Defender Says, ‘I Can’t Help’ – The New York Times

Source: When the Public Defender Says, ‘I Can’t Help’ – The New York Times

Louisiana has the highest incarceration rate in the U.S.  Cardozo Law School Prof. Ellen Yaroshefsky testified that it runs not a justice system but a “processing system”.  – gwc

When the Public Defender Says, ‘I Can’t Help’ – The New York Times

by Derwyn Bunton  //Chief Defender for Orleans Parish / Louisiana

New Orleans — ON an ordinary day, the Criminal District Court here begins with a parade of handcuffed and shackled defendants being led out from cages behind the judge’s bench by sheriff’s deputies. They are clad in orange jumpsuits and are almost exclusively African-American men. They rattle and shuffle their way onto benches and into the empty jury box, waiting for the judge.

When their case is called, a lawyer from the public defender’s office will rise and say: “Your Honor, we do not have a lawyer for this person at this time.”

Eight-five percent of these defendants are unable to afford their own lawyer and will need a public defender to represent them. But in New Orleans, where I am in charge of the public defender’s office, we simply don’t have enough lawyers to handle the caseload. Last month, we began refusing new cases.

In a state with one of the nation’s highest poverty rates, the system to defend the poor is broken.

To understand why, look at the other people in the courtroom sitting on benches set aside for the audience. Most of these people aren’t there to watch the proceedings. Many were subpoenaed for failing to pay fines or fees for minor offenses and had to take time from work to appear in court or be charged with contempt. Those fines and fees pay for two-thirds of the Louisiana public defender system. The rest comes from the state.

It is not an exaggeration to say that fines from traffic offenses, which, in Louisiana, can result in jail time, play a big part in determining whether one of those men in the orange jumpsuits receives an adequate defense required by the Sixth Amendment to the Constitution.

Poor people must pay $40 to apply for representation, and an additional $45 if they plead guilty or are found guilty. No other states lean so heavily on fines and fees paid mostly by the poor. And there is a reason for that. The system isn’t working.

Louisiana spends nearly $3.5 billion a year to investigate, arrest, prosecute, adjudicate and incarcerate its citizens. Less than 2 percent of that is spent on legal representation for the poor.

It is little wonder that Louisiana has the nation’s highest rates of incarceration and exoneration for wrongful convictions.

KEEP READING

New ABA Opinion on Ethical Duty when Client Documents are Subpoenaed

In Formal Opinion 473 (Feb. 17, 2016), the ABA provides new guidance to lawyers receiving subpoenas for client documents or information.  The opinion states that whenever a lawyer receives a subpoena or any other compulsory process for documents or information relating to the representation of a client, several obligations are implicated.  First, the lawyer must consult with the the client, if the client is available.  Next, unless the client instructs otherwise, the lawyer must assert all reasonable claims against disclosure and seek to limit the scope of any disclosure.  Next, if ordered to produce any information, the lawyer should consult with the client on whether to appeal the ruling.  Finally, if the client and the lawyer disagree on how to proceed, the lawyer should consider whether to withdraw from the representation pursuant to Rule 1.16.

The new opinion goes into some detail to explain what the lawyer should do if the client is unavailable, and to the duty to take steps to protect client confidentiality.  The opinion should be a very helpful resource to any lawyer facing attempts to pierce client confidentiality.

The new opinion is also a useful addition to Formal Opinion 10-456 (July 14, 2010), which addressed the disclosure of client information to a prosecutor when a lawyer’s former client brings an ineffective assistance of counsel claim.  Formal Opinion 10-456 makes clear that a lawyer may only disclose confidential information that the lawyer believes is reasonably necessary for the lawyer’s self-defense.