Author: jstearns2014

News from the Florida Keys

jstearns2014Leave a comment

An assistant state attorney in Monroe County (The Florida Keys) has just agreed to a plea in which she will use her law license for one year as a result of prosecutorial misconduct. According to the article in the Miami Herald (December 5, 2019), Colleen Dunne withheld evidence from defense attorneys as to three recorded phone calls between the defendant and his son.  The case will also result in her termination from her job as an assistant state attorney.  The plea and sanctions are still subject to review by the Florida Supreme Court.

https://www.miamiherald.com/news/local/community/florida-keys/article237994529.html

 

 

From Riehlmann to Thompson

jstearns2014Leave a comment

I have just heard the Podcast from the New Yorker Radio Hour called John Thompson v. American Justice. The Podcast connects the story from Riehlmann (Chapter 6) to Connick v. Thompson (Chapter 7).  This includes interviews with Riehlmann and District Attorney Connick, as well as long interviews with John Thompson. I highly recommend for you and your students too.  It runs about an hour, but is incredibly provocative and on point for the themes in both chapters.

 

Is Ticket App violating unauthorized practice of law in Florida?

jstearns2014Leave a comment

The Florida Supreme Court will hear a case from the Florida Bar, asserting that the website TIKD.com violates unauthorized practice of law. There is also an issue of whether the information advertised on the site was false and misleading.

TIKD.com had sued the Florida Bar and the Ticket Clinic in federal court back in November, and the Ticket Clinic has filed a bar grievance against the lawyers who represent TIKD.com.

The Miami Herald reports this latest development in the saga here.

The TIKD website is here.

This case will definitely be a supplement to my discussion of Chapter 2.

 

Ethics of In-House University Counsel

jstearns2014Leave a comment

The Chronicle of Higher Education (August 11, 2017), as well as social media, has been covering the unfolding story relating to the UF General Counsel Jamie Keith.  The saga began with a Title IX investigation which involved UF wide receiver Antonio Colloway, represented by attorneys Huntley Johnson and Amy Osteryoung. The article below focuses on the report of the internal audit conducted by UF, now that Ms. Keith has resigned her post. But this entire case provides an opportunity to explore the role of the in-house counsel, and the multiple ethical duties and challenges faced when working for a large and complex institution. Note also that Ms.Keith threatened to report the attorney who initially complained about her actions to the Florida Bar for discipline.  We will need to keep a watch on this case to see if any bar investigation or discipline results for any of the attorneys involved.

http://www.chronicle.com/article/Public-Records-Appear-to-Have/240908?cid=wcontentlist_hp_latest

 

Florida Prosecutor’s Policy Stance against Death Penalty Reviewed by Florida Supreme Court

jstearns2014Leave a comment

The first African-American state attorney in Florida history, Aramis Ayala, made national news this spring when she announced that she would never seek the death penalty in any of her cases. As a result, Florida Governor Rick Scott transferred two dozen cases to another prosecutor in the state from another county, one known to be a death penalty proponent.  Ayala’s claims that these cases should be returned to her jurisdiction were heard by the Florida Supreme Court on Wednesday, June 28.

The following article from the Miami Herald (June 29. 2017) provide a good overview of the Supreme Court hearing. This is a great case for highlighting the competing roles and professional responsibilities of the prosecutor. Keep a lookout for the Florida Supreme Court’s forthcoming decision in a case that has many legal experts filing briefs already on all sides of the issue.

http://www.miamiherald.com/news/politics-government/state-politics/article158614209.html

 

Dylann Roof: Should a defendant be permitted to represent himself in a death penalty case?

jstearns2014Leave a comment

Unfortunately, my slides for the section of Chapter 2 relating to the representation of difficult and mentally ill clients continues to grow each year with the tragic recurring incidents in our national news.

This year’s update is the trial of Dylann Roof, charged with the mass shooting in a Charleston Church in June, 2015.

Dylann Roof’s self-representation, both in the guilt and sentencing phases of his case, raises fascinating ethical and constitutional questions. The case has been well-covered in the New York Times in recent weeks.

See this interesting article by UM Law Professor Scott Sundby in the Huffington Post (January 4, 2017), relating to the constitutional questions raised by his self-representation, particularly in the death penalty phase of the case.

http://www.huffingtonpost.com/entry/why-dylann-roof-representing-himself-is-a-constitutional_us_586d4390e4b014e7c72ee58b

 

 

 

 

Yet another challenge to the Florida Bar advertising regulations

jstearns2014Leave a comment

The personal injury law firm of Searcy Denney Scarola Barnhart & Shipley PA sued the Florida Bar challenging two aspects of its rules concerning lawyer advertising.  On September 30, 2015, Judge Hinkle from the Northern District ruled that the challenge to the requirements that references to past results must be “objectively verifiable” was not yet ripe for review.

The lawsuit also challenged the Florida Bar’s ban on truthful statements regarding a lawyer’s specialty or expertise, absent certification under the Florida Bar certification program or some outside certifying organization. Judge Hinkle found that this rule failed all three prongs of the Central Hudson analysis, and granted the plaintiff’s summary judgment motion in part.

I expect this is not the last word from the federal courts on Florida’s efforts to regulate lawyer advertising. Stay tuned.

See Christian D. Searcy et. al v. The Florida Bar, 2015 WL 5769238

Florida Bar Adopts New Professionalism Expectations

jstearns2014Leave a comment

The Florida Bar Board of Governors adopted a new set of “Professionalism Expectations” on January 30, 2015. These Expectations  are divided into seven categories:

1. Commitment to Equal Justice and to the Public Good;

2. Honest and Effective Communication;

3. Adherence to a Fundamental Sense of Honor, Integrity, and Fair Play

4. Fair and Efficient Administration of Justice;

5. Decorum and Courtesy;

6. Respect for the Time and Commitments of Others; and

7. Independence of Judgment.

The vast majority of the expectations are expressed as “should” or “should not” which is to signal, as stated in the Preamble, that these are recommendations of correct action rather than matters covered by the Professional Rules of Conduct. A few of the expectations are stated as “must” or “must not” to indicate that they correlate with the Rules.

For a full copy, see here:

I am not convinced that this additional layer of recommendations will add much to the professionalism of Florida Lawyers, but let’s see.

Lawyer Well-being and Mental Health in the News

jstearns2014Leave a comment

Several recent articles have called attention to the challenges that lawyers face in the midst of this stressful profession.

The Florida Bar News recently highlighted the problem of lawyer suicide in a provocative article by Scott Weinstein, Clinical Director for the Florida Lawyers Assistance Program.

http://www.floridabar.org/DIVCOM/JN/jnnews01.nsf/8c9f13012b96736985256aa900624829/5c5dc6e5081d87cf85257df5004a43cc!OpenDocument

The March 2015 ABA Journal also features an article by Stephanie Francis Ward on lawyers who self-medicate to address the stresses of the profession. This article includes an excellent directory of national referral services.

http://www.abajournal.com/magazine/article/lawyers_who_self_medicate_to_deal_with_stress_sometimes_steal_from_those

I discussed both of these articles in the context of the Chapter 6 duty to report misconduct materials, and the class quickly evolved into a lively discussion of the challenges confronting law students, and the role that drugs, alcohol and mental health play.

Please note the upcoming ABA Mental Health Day activities scheduled for March 27, 2105.

http://www.americanbar.org/groups/law_students/initiatives_awards/lshealth.html

The time is now to have your law school participate in this important national initiative. This is an opportunity to highlight professionalism and the relationship to wellness, and distribute information information including your local lawyers assistance program.

Federal Judge Fines Indian Tribe and Its Attorney for Frivolous Lawsuit

jstearns2014Leave a comment

Federal Judge Marcia Cooke has ordered the Miccosukee tribe and its lawyer Bernardo Roman III to be sanctioned for over $1 million. Roman, on behalf of the Tribe, had sued three prominent Miami attorneys for malpractice and fraud. According to Judge Cooke, the lawsuit had “no evidence or only patently frivolous evidence.” She ordered the payment of $975,750 in costs and fees to law partners Guy Lewis and Michael Tein, and an additional $95,640 to lawyer Dexter Lehtinen. She further sanctions Roman under Rule 11 and refers his case to the Florida Bar for further action.

The Miami Herald Article on the case can be found here.

http://www.miamiherald.com/news/local/community/miami-dade/west-miami-dade/article7044377.html

The Judge’s Order can be viewed at: Miccosukee Tribe v Cypress Omnibus Order

Florida Bar Changes Advertising Policy on “Past Results”

jstearns2014Leave a comment

The Florida Bar Board of Governors has voted to drop its advertising guideline on “past results.” The prior interpretation was that it was inherently misleading to state past results in any lawyer advertisement. The Florida Bar acted In response to Judge Beth Bloom’s decision in Rubenstein v. Florida Bar (discussed in my blog post of December 10). In addition, the Bar had commissioned a survey by Frank N. Magid & Associates to survey whether the public was misled by advertising reporting past results. This Magid survey did not support this hypothesis.

For more on these recent developments, see the Florida Bar News, January 1.

http://www.floridabar.org/DIVCOM/JN/jnnews01.nsf/cb53c80c8fabd49d85256b5900678f6c/c7aaf9d47e1c0b8d85257db100723587!OpenDocument&Highlight=0,past,results*

From my perspective, most interesting are the statements of Bar President Bill Coleman in the Florida Bar News which suggest that the Bar is re-examining its policy of requiring advance filings with the Bar of all billboard, radio, television and direct mail ads.

Let’s see what 2015 brings in this ongoing debate.

Debate on Lawyer Advertising in Florida Continues

jstearns2014Leave a comment

Attorney Robert Rubenstein has sued the Florida Bar over its new and improved 2013 attorney advertising rules. Following the issuance of the new regulations, Rubenstein developed an advertising campaign that included information regarding past recoveries for clients. Consistent with the Florida Bar’s procedures, these ads were submitted for review, and the Florida Bar issued opinion letters which reported that the past performance advertisements complied with the revised Rules.

View an example of the advertisements in question at https://www.youtube.com/watch?v=MFjHTQF4dkQ

By early 2014, the Florida Bar issued new guidelines regarding advertising past results, and then the Bar notified Rubenstein that it was withdrawing its opinion letter on compliance. By March 2014, Rubenstein sued the Florida Bar on first amendment grounds.

In the instant case, heard by Federal Judge Beth Bloom, the Florida Bar challenged jurisdiction on the basis of standing and ripeness. Judge Bloom disagreed and denied the Florida Bar’s motion.”Plaintiffs have clearly demonstrated a very real threat of prosecution for engaging in their advertisement of past results.”  The slip opinion is available at 2014 WL 6610972.

Joe Nocera’s Op-Ed in the New York Times

jstearns20141 Comment

The debate on the funding of judicial elections and the impact of campaign finance is well covered by Joe Nocera in the Tuesday, October 28 column called Are Our Courts for Sale?

Definitely worth asking why we aren’t pushing harder for public finance of judicial elections in light of the increasing impact of private contributions in judicial campaigns.

Nocera quotes Professor Joanna Shepherd from Emory Law School and her report entitled Skewed Justice.

All of these are great resources to supplement our discussion of judicial ethics in Chapter 7.

ABA Formal Opinion 467: New guidance for prosecutors

jstearns2014Leave a comment

In recent years, the U.S. Supreme Court has continued to review the conduct of prosecutors, both under the Model Rules and the constitutional standards set by Brady. The ABA has now issued a new Formal Opinion 467, called Managerial and Supervisory Obligations of Prosecutors under Rules 5.1 and 5.3. This Opinion clarifies that prosecutors may have additional duties under 5.1 and 5.3 to supervise and manage the attorneys in their offices. The opinion notes that in some instances the duties to take appropriate remedial action under 5.1 and 5.3 may be broader than what Model Rule 3.8 currently requires. The Formal Opinion also discusses standards for establishing office-wide policies and training (including ethical obligations.)  Further, the ABA recommends creating a “culture of compliance” and the impact of Rule 1.13 on governmental offices including those of the Prosecutors.

This opinion is an important supplement to Chapter 7 materials for students and teachers alike, and I will be tackling this with my class in the weeks ahead.

Is the prohibition on judicial candidates soliciting campaign contributions directly constitutional??

jstearns20141 Comment

In The Florida Bar v. Lanell Williams-Yulee, the Florida Supreme Court upheld the disciplinary sanctions imposed on Ms. Williams-Yulee, a candidate for Judge in Hillborough County, Florida. (138 So. 3d 379). She was sanctioned for personally soliciting campaign contributions in violation of Canon 7C (1) of the Florida Code of Judicial Conduct. Williams-Yulee argued that the Canon was unconstitutional on first amendment grounds, but the Florida Supreme Court upheld the public reprimand in her case.

Since the decision in May, 2014, both the Florida Bar and Ms. WIlliams-Yulee have petitioned the U.S. Supreme Court to review the constitutionality of Canon 7C (1). The Florida Bar notes that over 20 states have similar judicial campaign rules. (See Florida Bar News, September 15, 2014 at page 21).

Of course, some of us would argue that the entire system of electing state judges is problematic, and this is but one of the myriad issues that compromises the system. But we will need to watch to see if the U.S. Supreme Court takes the case.

GM Legal Department

jstearns2014Leave a comment

According to yesterday’s NY Times, attention is now turning to how GM’s legal department handled the complaints about the defective ignition switches.

Great article to share with students when discussing Model Rule 1.13.

http://www.nytimes.com/2014/05/18/business/inquiries-at-gm-are-said-to-focus-on-its-legal-unit.html?hpw&rref=business&action=click&module=Search&region=searchResults&mabReward=relbias%3Ar&url=http%3A%2F%2Fquery.nytimes.com%2Fsearch%2Fsitesearch%2F%3Faction%3Dclick%26region%3DMasthead%26pgtype%3DHomepage%26module%3DSearchSubmit%26contentCollection%3DHomepage%26t%3Dqry217%23%2FGM%2Blawyers%2F&_r=0

You can read more about General Counsel Michael Milikin here: http://www.gm.com/company/corporate-officers/michael-millikin