07/03/09

Permalink 03:53:47 pm, by forhall, 272 words, 16 views   English (US)
Categories: blog

NJ: Defense counsel has right to access child porn evidence in case without using the government's computers

New Jersey has held that defense counsel has a right of access to child pornography, under strict controls, to evaluate it in child porn case. See AP: Ex-NJ lawmaker's lawyer can access child porn pics:

Prosecutors objected to letting Cohen's team have control of the photos, claiming that releasing them could further victimize the children and create a risk that the images could be further disseminated.

They argued that the defense should be able to view the images, but only on state-controlled computers.

The court rejected that idea, saying it could stifle the defense's efforts to analyze the evidence.

"The need for defense counsel to have unfettered access to the images and the need for defense experts to maintain anonymity will be compromised by the presence of the state representative who controls the computer," the court said.

The court said the defense team had a right to have the evidence, so long as it complies by certain conditions.

The material cannot be "copied, reproduced, distributed, disseminated, electronically stored and/or electronically uploaded or downloaded or used for any purpose other than the prosecution or defense of this action," according to a court order.

Also, the defense must use a non-networked computer , without Internet access , to view the materials and keep the dedicated computer locked and secure when not in use. Only hand-to-hand delivery of the images is allowed, and only defense attorneys and experts hired by them can view the evidence; Cohen is allowed to see the images, but only in the presence of his lawyers.

At the time of this posting, the opinion is not on the New Jersey courts website.

Permalink 03:45:31 pm, by forhall, 23 words, 1 view   English (US)
Categories: blog

PA case fixing case nets lawyer guilty plea

Lawyer pleads guilty in Pennsylvania case alleging fixing of cases. See ABAJournal.com: Disgraced Pa. Judge: I Didn’t Discuss $3.5M Libel Case.

06/25/09

Permalink 09:40:12 pm, by forhall, 113 words, 34 views   English (US)
Categories: blog

NY conviction set aside by trial judge bacause defense counsel slept during trial

From ABAJournal.com is the report of a conviction set aside because defense counsel slept and read magazines during the client's trial. See After Judge Finds Lawyer Slept During Trial, He Tosses Weapons Conviction:

A New York criminal defense lawyer who's taken more than 600 cases to trial is on the hot seat after a Brooklyn judge tossed one client's conviction.

Trial judge Vincent M. Del Giudice ruled last week that Manhattan solo practitioner Michael Harrison failed to provide his client "meaningful representation."

In a written opinion, Del Giudice notes that Harrison presented a "bizarre" opening statement, repeatedly fell asleep during trial and read magazines while witnesses testified, the New York Law Journal reports.

06/24/09

Permalink 06:31:22 am, by forhall, 441 words, 25 views   English (US)
Categories: blog

CA11: Lack of collegiality in FLSA case against law firm supported denial of fees to prevailing plaintiff

Eleventh Circuit denies attorneys fees to a prevailing party in a civil case for "lack of collegiality." The case was a Fair Labor Standards Act case against a law firm, and the appeal was deciding the trial court's denial of attorney's fees to the prevailing plaintiff. Sahyers v. Prugh, Holliday & Karatinos, P.L., 560 F.3d 1241, 1245-46 (11th Cir. 2009). A cautionary tale:

A federal court may wield its inherent powers over the lawyers who practice before it. This control derives from a lawyer's role as an officer of the court. Theard v. United States, 354 U.S. 278, 77 S. Ct. 1274, 1276, 1 L. Ed. 2d 1342 (1957). It encompasses, among other things, the authority to police lawyer conduct and to guard and to promote civility and collegiality among the members of its bar. See, e.g., Chambers, 111 S. Ct. at 2132 ("[A] federal court has the power to control admission to its bar and to discipline attorneys who appear before it."); In re Finkelstein, 901 F.2d 1560, 1564 (11th Cir. 1990); (court has power to supervise professional conduct of lawyers who practice before it).

. . .

The district court's inherent powers support its decision here. Defendants are lawyers and their law firm. And the lawyer for Plaintiff made absolutely no effort--no phone call; no email; no letter--to inform them of Plaintiff's impending claim much less to resolve this dispute before filing suit. Plaintiff's lawyer slavishly followed his client's instructions and--without a word to Defendants in advance--just sued his fellow lawyers. As the district court saw it, this conscious disregard for lawyer-to-lawyer collegiality and civility caused (among other things) the judiciary to waste significant time and resources on unnecessary litigation and stood in stark contrast to the behavior expected of an officer of the court. The district court refused to reward--and thereby to encourage--uncivil conduct by awarding Plaintiff attorney's fees or costs. Given the district court's power of oversight for the bar, we cannot say that this decision was outside of the bounds of the district court's discretion.

We strongly caution against inferring too much from our decision today. These kinds of decisions are fact-intensive. We put aside cases in which lawyers are not parties. We do not say that pre-suit notice is usually required or even often required under the FLSA to receive an award of attorney's fees or costs. Nor do we now recommend that courts use their inherent powers to deny prevailing parties attorney's fees or costs. We declare no judicial duty. We create no presumptions. We conclude only that the district court did not abuse its discretion in declining to award some attorney's fees and costs based on the facts of this case. (footnotes omitted)

06/22/09

Permalink 08:03:29 am, by forhall, 151 words, 42 views   English (US)
Categories: blog

Defense lawyer solicited by juror for bribe

From ABAJournal.com: Federal Juror Charged With Bribery, Allegedly Solicited Defense Lawyer:

A federal juror has been charged with bribery and contempt of court after allegedly seeking money from a defense lawyer in a tax evasion case against a St. Louis-area automobile dealer.

Dorothy Hendricks is accused of calling a unidentified defense lawyer in the U.S. Virgin Islands case over a $300 million tax shelter there and asking the attorney to put a price on a not guilty verdict, according to the Belleville News-Democrat and the St. Louis Business Journal.

When the lawyer refused and promised to contact the court about the call, she allegedly said "Forget it, I told them that this would not work," perhaps referring to a conversation she allegedly had with another juror about seeking money in connection with their jury service, according to the Business Journal.

When the juror was excluded from deliberations, the jury acquitted.

Permalink 07:53:20 am, by forhall, 180 words, 51 views   English (US)
Categories: blog

Spokane PD assists in holding client attempting to flee court, and the NACDL list serv goes wild

Maybe the hottest ethics debate of the year over the last two days on the NACDL list serv is this story from Spokane, Municipal court brawl leads to arrest, where a defendant attempting to flee court was held, at least in part, by his public defender holding his leg:

A brawl that began when a man tried fleeing a courtroom this morning ended with the man, a deputy and three attorneys falling onto a bench of bystanders, according to the Spokane County Sheriff’s Office.

Micah W. Hasselstrom, 34, ran when Spokane Municipal Court Judge Tracy Staab ordered him jailed with increased bail after he said he didn’t plan on appearing in court again, a news release said.

Hasselstrom’s public defender, Tony Tompkins, grabbed his leg to hold him in place as Deputy John Pederson tried handcuffing him, and a struggle ensued, according to the Sheriff’s Office.

Public defenders Francis Adewale and Andy Hess joined the struggle, and the group fell onto the bench, knocking a 68-year-old woman to the floor and partially burying her under the group.

Permalink 07:29:30 am, by forhall, 126 words, 17 views   English (US)
Categories: blog

Criminal defense lawyer throws a fit when client denied bail, but judge missed it

A criminal "defense lawyer went ballistic" in court when his client is denied bail. See Philly.com:

A defense lawyer went ballistic at the Criminal Justice Center yesterday after a judge initially refused to lower his client's bail or change his sentence in a contempt case.

According to observers, the attorney, Adam J. Rodgers, threw a pen and his leather bag, pushed or hurled a chair, and raised a chair over his head, then slammed it down.

Rodgers then stormed out of Common Pleas Judge Chris R. Wogan's courtroom, repeatedly screaming "Bull----!" and yelling about the percieved injustice.

It turned out that the judge confused the lawyer's client with somebody else and reconsidered. The lawyer also avoided contempt because it was not in the judge's presence.

06/17/09

Permalink 01:30:09 pm, by forhall, 78 words, 110 views   English (US)
Categories: blog

CA criminal defense lawyer indicted for money laundering client funds

A California criminal defense lawyer was indicted with clients for allegedly participating in money laundering for clients. See Feds unseal indictment against LA street gang:

The indictment also charged criminal defense attorney Isaac Guillen, 48, of West Covina, with laundering illegal proceeds on behalf of the Mexican Mafia, a prison-based gang that often controls the activities of Latino street gangs in California. A secretary at his office said he was arrested Tuesday morning and she had no further comment.

06/14/09

Permalink 08:46:48 am, by forhall, 50 words, 55 views   English (US)
Categories: blog

MA: Conviction reversed of client held to have forfeited right to counsel by threatening lawyer which defendant later said was a "stunt"

§ 2:18 n.2
Com. v. Means, 2009 WL 1623439 (Mass. June 12, 2009) (defendant sent a letter to court threatening to assault or kill defense counsel and his family; trial court held defendant forfeited right to counsel; defendant then apologized and said it was a stunt; pro se conviction reversed because of inadequate inquiry into forfeiture).

06/13/09

Permalink 04:23:37 pm, by forhall, 293 words, 52 views   English (US)
Categories: blog

AK OKs use of "SuperLawyers" in lawyer advertising with explanation

Alaska holds the use of "SuperLawyers" in lawyer advertising is not unethical, following the majority. Alaska Op. 2009-2:

A minority of jurisdictions has determined that references to rankings in a publication such as Super Lawyers are unethical. For example, the New Jersey Supreme Court’s Committee on Attorney Advertising ruled that advertising an attorney’s inclusion in Super Lawyers is a violation of Rule 7.1 because it is likely to create unjustifiable expectations and compares the “Super Lawyers” to non-“Super Lawyers.” This New Jersey Opinion has been stayed pending a challenge in the New Jersey Supreme Court. The New York Appellate Division proposed an amendment to their disciplinary rules that prohibited “any nickname, moniker, motto, or trade name that implies an ability to obtain results.” On July 20, 2007, the United States District Court found the amendment to be an unconstitutional limit on free speech.

The majority view regards advertising that mentions a rating received from a commercial publication to be ethically permissible. The State of Connecticut Statewide Grievance Committee offered a particularly thoughtful analysis. The Connecticut Committee determined that an unexplained reference to an attorney as a “Super Lawyer” in an advertisement is “potentially misleading and confusing to consumers.” The Connecticut Committee recognized that the Super Lawyer selection process is “subjective and arbitrary,” but decided that a truthful reference to a ranking by Super Lawyers is not unethical if sufficient information is provided to put the reference in context. To alleviate potential confusion, the Connecticut Committee requires that the reference to “Super Lawyer” must be explained. As an example, the Connecticut Committee indicated that announcing that a lawyer has been designated a Connecticut Super Lawyer in Connecticut Super Lawyers 2007 magazine is allowed, but stating simply that a lawyer is a Super Lawyer is not allowed.

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    "A lawyer shall represent a client zealously within the bounds of the law."
      —§ 1:1, Rule 3(a) (not "should" from CPR Canon 7)

    "The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free."
      —Herring v. New York, 422 U.S. 853, 862 (1975)

    "The right to the effective assistance of counsel is thus the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted ... the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated."
      —United States v. Cronic, 466 U.S. 648, 655-56 (1984)

    "The only real lawyers are trial lawyers, and trial lawyers try cases to juries."
      —Clarence Darrow

    "America was neither founded, nor freed, by the well-behaved."
      —Semmes Luckett, a Clarksdale, Mississippi lawyer

    "The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law."
      —Washington v. Texas, 388 U.S. 14, 19 (1967)

    "[T]he Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.'"
      —Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)).

    "[O]ur so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. ... [A]s part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth."
      —Justice White concurring and dissenting in U.S. v. Wade, 388 U.S. 218, 256-58 (1967)

    We, as criminal defense lawyers, are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people who will lie in court to get what they want, people who do not care who gets hurt in the process. It is our job–our sworn duty–as criminal defense lawyers, to protect our clients from those people.
      —Cynthia Roseberry

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