Supreme Court hears argument today on a lawyer’s bad advice

From today’s New York Times:

The Supreme Court is taking up the case of a longtime U.S. resident who is facing deportation to South Korea after pleading guilty to a drug crime based on his lawyer’s bad advice.

The justices are hearing arguments Tuesday in an appeal by Jae Lee, who has lived in the United States for 35 years and has never been back to South Korea since coming to the United States when he was 13.

The case has taken on increased importance because President Donald Trump has promised to step up deportations, with a special focus on immigrants who have been convicted of crimes. The American Bar Association has estimated that one of every 10 criminal defendants is not an American citizen.

Lee agreed to plead guilty to possession of ecstasy with intent to distribute after his lawyer, Larry Fitzgerald, assured him that doing so would not make him subject to deportation. The lawyer was wrong.

The issue in Lee’s appeal is whether the lawyer’s recommendation to take the deal offered by prosecutors was so bad that it amounts to a violation of Lee’s constitutional right to a lawyer.

Both sides agree that Fitzgerald’s performance was deficient in representing Lee. The Supreme Court ruled in 2010 that immigrants have a constitutional right to be told by their lawyers whether pleading guilty to a crime could lead to their deportation.

But Lee almost must show that the bad lawyering mattered to the outcome of the criminal case.

Full article here.

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

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

 

 

 

 

Teaching the Torture Memos

I’m wrapping up Chapter 2 today, teaching the pieces by Luban and Mukasey/Filip on the torture memos that appear at the chapter’s conclusion. This article from Clare Keefe Coleman has been helpful in framing the discussion: Teaching the Torture Memos: “Making Decisions Under Conditions of Uncertainty,” 62 J. Legal Educ. 81 (2012). Abstract follows the jump.Read More »

5 Year Prison Term for a Lawyer Using his IOLTA Account to Launder Money

The ABA Journal and Law.com have reported the story of a San Diego lawyer who was sentenced to five years in prison for using his IOLTA account to facilitate money-laundering activities.  In his plea agreement, attorney Medina admitted  that he used his IOLTA account for the receipt, transport, and transmission of cash to international destinations and that he  “knew or had reason to know that the cash transactions described [therein] were proceeds of unlawful activity, or were intended to promote unlawful activity.”

This new story can be used in Chapter 2 when teaching Rule 1.2(d), which states that a lawyer “shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent….”   Although PR profs cannot possibly teach the substantive law of all crimes, I think it is important to make sure that our students are familiar with 18 U.S.C. § 1956.  Among other things, § 1956 makes it a felony “to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity.”   This means that activity that is perfectly legal in one context (such as forming one or more corporations) may be illegal if the purpose of that otherwise legal conduct is to hide the location or source of the proceeds of crime.  (The 60 Minutes/Global Witness videos and the Panama Papers leak can provide useful hypos for discussion).

The San Diego case shows students that lawyers who assist money laundering activity face criminal law sanctions, as well as disciplinary sanctions under Rule 1.2(d).   I found it noteworthy that the plea agreement with Attorney Medina recited that he knew or had reason to know that the money in his IOLTA account were proceeds of unlawful activity, or were intended to promote unlawful activity.

For additional information about the role of lawyers in preventing money-laundering, see this ABA Task Force webpage and the guidance provided by the ABA and jointly by the IBA, CCBE, and ABA about how to identify money-laundering red flags.  (I give my students a 2-page summary of the ABA’s red flags guidance.)

My other work about lawyers and money-laundering includes these slides about the potential impact on US lawyer regulation of FATF’s 4th Mutual Evaluation of the US; slides that focus on US efforts to educate lawyers about money-laundering; and slides and a 2 page handout that discuss how US lawyer regulation could be affected if US lawyers don’t recognize money laundering situations. My most recent article about this topic is available here.

New DC Data & Recommendations About Global Practice

In May 2016, the DC Bar issued the Interim Report of its Global Legal Practice Task Force.  In June 2016, the Board of Governors of the DC Bar approved the report’s recommendations.  As the DC press release noted, “D.C. Bar members practice in 83 countries, and nearly 1,500 of the Bar’s 101,500 members live and work abroad. Fifty-four percent of the Bar’s domestic members were very or somewhat interested in expanding their international practices within the next five years …with 57 percent of that number indicating that they expect to expand their practices during that time.”

The DC Bar sent separate surveys to bar members located in the US, bar members located outside the US, and Special [Foreign] Legal Consultants.  To my knowledge, this is the first survey of its kind, in which bar members were asked demographic data about their practices and qualifications, as well as questions about the ways in which they currently interact with the DC Bar and the services they would like.   Anyone who is interested in the globalization of legal practice will find the Interim Report an interesting read.

The DC Bar press release announcing Board approval of the recommendations summarized the Task Force work as follows:

To best achieve its charge, the Task Force divided its study into three areas: examining how best to serve domestic Bar members with international practices and clients, and Bar members who live and work overseas (outbound); studying the rules by which lawyers from foreign countries can be admitted and licensed to practice in the District (inbound); and studying developments in alternative business models being employed by law firms domestically and in other countries. The interim report reflects the recommendations of the outbound subgroup and a recommendation to conduct ongoing study of alternative business structures and multi-disciplinary practice. The Task Force’s work continues on issues about the regulation, admission, and practice of foreign-educated lawyers in the District of Columbia.

 The Task Force’s proposals for outbound members fell into three broad categories: connections or networking, resources, and education and professional development.

Highlights of the proposals for short-term implementation recommend that the Bar should:

• Develop networking opportunities with substantive content for smaller groups of domestic Bar members with international legal practices.

• Improve the exchange of information about resources, education, and networking for all members engaged in the practice of cross-border and international law.

• Create varying “expertise” levels of educational programming in international law topics for all members and develop marketing for this programming.

• Develop educational programming about issues in international practice that all members often encounter: multi-country litigation; record keeping; e-discovery training and tools; conflicting legal ethics rules; attorney-client privilege abroad; and data security and privacy.

Highlights of the proposals for long-term implementation recommend that the Bar should:

• Facilitate informal gatherings of its members residing in specific regions of the world where these members commonly live and practice, such as Canada, China, France, and the United Kingdom.

• Facilitate networking between members who reside and practice outside the United States and local business groups.

• Partner with international groups and organizations based in Washington, D.C., for hosting networking events with domestic members with international practices.

• Develop and maintain a list of volunteer “resource attorneys” by international law subject matters or by conducting business in specific regions of the world.

Two Examples this Week of Technology and Artificial Intelligence Promoting Access to Justice

Two examples in the news this week of the potential for AI to increase access to justice – and perhaps raise UPL issues?  My hope is that the academy and the profession will focus on how this helps the public, while allowing lawyers to practice to the top of their license.


First, a 19 year old in Britain launched a bot in New York and London that allows folks to appeal their parking tickets.  In April, the bot had a 64% success rate.  Up next: Seattle.
Note that the developer is also working on a bot to help refugees seeking asylum, as well as a bot for HIV positive individuals to better understand their rights in disclosing their medical status.  More here from Business Insider.


Second, Bloomberg reported Thursday that some countries are using automated dispute resolution tools for family law issues (divorce, child custody and support), condominium, landlord-tenant, and employment disputes.  The tool uses algorithms to guide individuals “through a series of questions and explanations to help them reach a settlement by themselves.”  Human adjudicators may be brought in if a settlement is not reached.

California Continues its Work to Update its Ethics Rules (and switch to the ABA Model Rules Format)

California’s Second Commission for the Revision of the Rules of Professional Conduct continues its work to update California’s ethics rules (and switch to the ABA Model Rules format).  The Commission’s website includes a page where it regularly posts its draft rules for comment.  For example, in April 2016 the Commission posted its proposed drafts of Rules 1.2, 1.7, and 7.1-7.5, among other rules.  In May 2016 the Commission posted drafts of Rules 3.3-3.6 and a proposed rule dealing with prosecutorial responsibilities.    The June 2016 column by State Bar of California President David Pasternak urged California lawyers to submit their comments to the Commission.  Given California’s size and influence, this work deserves careful consideration by all lawyers.