I write on the first Monday of October, the opening day of the U.S. Supreme Court’s 2009-10 term. This will be an interesting one because of the unusual number of cases dealing with lawyers and the law of lawyering.  Here’s a preview of the cases of particular interest to lawyers that will be decided this term, listed in the order they will be argued.

Carpenter v. Mohawk Industries, Inc., No. 08-678.  Certiorari was granted in this case to resolve a circuit split over the question of whether a party has an interlocutory appeal of right available upon a district court’s determination that a claim of attorney-client privilege was waived and that compelled production of purportedly privileged materials.  In the opinion below, the Eleventh Circuit sided with the circuits holding that no interlocutory appeal was available as of right.  541 F.3d 1048 (11th Cir. 2008).  The Eleventh Circuit aligned with the Seventh Circuit’s previously stated view. Reise v. Bd. of Regents of Univ. of Wis. Sys., 957 F.2d 293 (7th Cir. 1992).  The answer to this question turns on whether an order compelling the disclosure of evidence claimed to be privileged is “effectively unreviewable on appeal from a final judgment” under the third prong of the three-part test of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949).  This is an especially compelling issue for lawyers because it was suggested by the Eleventh Circuit (and in oral argument today) that one alternate means of seeking review would be to defy the court order and seek review of the inevitable finding of contempt (perhaps of the lawyer) that would follow.  Further, the case calls upon the Court to assess the relative significance of the attorney-client privilege as compared to other privileges and protective doctrines such as protections for trade secrets or attorney work product.  This case was argued on October 5, the first day of the term.

As an aside, although the Indiana Supreme Court has not squarely decided whether an order compelling discovery of materials claimed to be protected by the attorney-client privilege may be appealed as of right, it has held generally that orders to produce documents in discovery are not interlocutory orders appealable as of right under Appellate Rule 14(a). State v. Hogan, 582 N.E.2d 807 (Ind. 1991).  In Allstate Insurance Company v. Scroghan, 851 N.E.2nd 317 (Ind.Ct.App. 2006), the Court of Appeals somewhat grudgingly agreed that by forcing the issue to the point of being monetarily sanctioned, the party resisting discovery was entitled to interlocutory appellate review of an order compelling discovery as of right under Appellate Rule 14(a)(1) (order to pay money).


Padilla v. Kentucky, No. 08-651.  Padilla was a defendant in a drug case.  He was also a permanent legal resident of the United States whose status was subject to change upon the occurrence of certain events.  He pled guilty to drug charges after being assured by his attorney that a conviction would not lead to his deportation.  This was bad advice.  Padilla became subject to mandatory deportation as a consequence of his conviction.  Padilla collaterally attacked his conviction in state court, claiming that his attorney’s faulty legal advice was ineffective assistance of counsel, violating his Sixth Amendment rights.  The Kentucky Supreme Court held that Padilla’s attorney’s bad advice did not pertain to the offense itself, but to a collateral consequence of being convicted, and accordingly, was outside the scope of Padilla’s constitutional guarantee to effective assistance of counsel.  253 S.W.3d 482 (Ky. 2008).  Thus, on certiorari, the issues before the Supreme Court are (1) whether counsel has an affirmative Sixth Amendment duty to advise a client about deportation consequences or whether the possibility of deportation is only a collateral consequence about which counsel is not duty-bound to advise the client; or (2) even if deportation is a collateral consequence and there is no corresponding affirmative duty, whether actual wrong advise on this score is ineffective assistance of counsel.  The case is set for argument on October 13.

Perdue v. Kenny A. ex rel. Winn, No. 08-970.  In this case, the Supreme Court is asked to review an aspect of a federal fee-shifting award under 42 U.S.C. §1988 where the fees awarded to the prevailing plaintiffs in a civil right case were enhanced because of the quality of performance and results obtained.  The case itself dealt with a federal class action challenge to the way foster children in Georgia were treated by that state.  Based on qualitative considerations, the district court enhanced a $6 million lodestar calculation of fees by a 1.75 multiplier to award total fees in favor of the plaintiffs in the amount of $10.5 million.  The Eleventh Circuit affirmed.  532 F.3d 1209 (11th Cir. 2008).  The issue before the Court is whether an enhancement for quality and results obtained on top of the lodestar fee amount is appropriate in light of the fact that the lodestar analysis itself is supposed to take such matters into consideration.  In effect, claim the petitioners, the fee-shifting award was double enhanced.  The respondents contend that the plaintiffs’ efforts were truly extraordinary and that district courts should be allotted some discretion to recognize those rare cases when they come along.  By the time this column is published, this case will have been argued on October 14.

Wood v. Allen, No. 08-9156.  This is a habeas corpus appeal claiming ineffective assistance of counsel in the sentencing phase of an Alabama death penalty case.  Wood, the defendant, was represented at the penalty phase primarily by Trotter, a very recently admitted lawyer without criminal law experience.  Two more experienced lawyers had also worked on the defense of the case, but their involvement in preparing for and participating in the penalty phase appears to have been rather limited.  Wood claims that his penalty phase representation was deficient because Trotter, due to inexperience and lack of supervision by the more experienced lawyers, failed to adequately develop or minimally present a competent mitigation case based on Wood’s mental impairments.  The trial court granted habeas relief, but the Eleventh Circuit reversed in a 2-1 decision.  542 F.3d 1281 (11th Cir. 2008).  The lengthy dissent focused intensely on Trotter’s inexperience.  One of the issues on certiorari deals with a circuit split on how exactly the burdens of proof apply in habeas challenges to death penalty sentences under the Antiterrorism and Effective Death Penalty Act.  The second issue on certiorari is whether counsel was ineffective under the Strickland v. Washington standard, 466 U.S. 669 (1982), in part because of the ill-supervised primary role of an inexperienced defense lawyer.

I find it particularly interesting that the Eleventh Circuit dissent and Wood focus on Trotter’s inexperience and inadequate supervision. While both factors may have been present, it seems to me that the question ought to turn on the quality of penalty phase preparation and presentation without regard to whether Trotter was supervised or unsupervised or whether he was a novice or a grizzled veteran.  It will be interesting to see if the Supreme Court comments on the prudence of giving inexperienced lawyers substantial responsibility in death penalty cases.  The case is scheduled for argument on November 4.  Indiana Solicitor General, Thomas M. Fisher, is the lead author of an amicus brief by Indiana and 18 other states in support of Alabama’s position.

Pottawattamie County, Iowa v. McGhee, No. 08-1065.  McGhee and Harrington were convicted of murdering an Iowa police officer in 1978.  They were both sentenced to life in prison.  It later developed that the prosecutors failed to disclose exculpatory evidence and coerced false testimony.  On that basis, Harrington’s conviction was reversed by the Iowa Supreme Court and McGhee pled to a lesser charge.  Thereafter, they sued the county and two prosecutors for damages under 42 U.S.C. §1983.  The prosecutors defended on the basis of absolute immunity under the doctrine of Imbler v. Pachtman, 424 U.S.409 (1976), claiming that they were acting as advocates.  The district court upheld the absolute immunity defense as to the non-disclosure of evidence, but held that the prosecutors’ immunity was only qualified as to the coercion of false testimony on the basis that the latter conduct was investigatory in nature.  The Eighth Circuit affirmed.  547 F.3d 922 (8th Cir. 2008).  On certiorari, the issues are whether procuring false testimony violates a defendant’s constitutional rights at all and if it does, whether or not prosecutors are entitled to absolute immunity when they procure false testimony because it is conduct that is inextricably bound up with the presentation of testimony at trial or whether it is conduct associated with investigative responsibilities for which a defense of qualified immunity is available.  This case is set for oral argument on November 4.

Milavetz, Gallop & Milavetz, P.A. v. United States.  The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) was passed by Congress to address perceived abusive bankruptcy practices by debtors and others.  Its provisions extend to “debt relief agencies,” which has been interpreted to include attorneys for debtors.  As a consequence, debtors’ attorneys must include in any advertising this statement: “We are a debt relief agency.  We help people file for bankruptcy relief under the Bankruptcy Code.”  Also, BAPCPA prohibits advising debtors that they may incur additional debt in contemplation of bankruptcy.  The Milavetz firm and others sued, claiming these prohibitions and requirements of BAPCPA violate their First Amendment rights.  The Supreme Court agreed to review the Eighth Circuit’s decision striking down the prohibition on providing certain advice to debtors, but upholding the advertising disclosure.  531 F.3d 785 (8th Cir. 2008).  Both sides sought Supreme Court review.  This will be a particularly interesting case because it has been a little while since the Court looked at a lawyer speech claim involving the First Amendment and because it raises an intriguing question about the ability of the government to muzzle lawyer advice to clients regarding conduct that is not itself illegal.  In this regard, it should be noted that Rule of Professional Conduct 1.2(d) provides that a lawyer may not counsel a client to commit a crime or fraud, but “may discuss the legal consequences of any proposed course of conduct with a client….”  The case is scheduled for oral argument on December 1.

Astrue v. Ratliff, No. 08-1322.  This is another case that raises an issue under another federal fee-shifting statute, the Equal Access to Justice Act (“EAJA”).  The attorney for a claimant for Social Security benefits who succeeded in establishing benefits after judicial review sought and received an award of fees under the EAJA.  The United States reduced counsel’s court-ordered fees and retained the reduced amount to satisfy a debt that her client owed the U.S. government.  The attorney challenged the government’s action as an illegal seizure of her property under the Fourth Amendment.  The district court denied her relief on the basis that she lacked standing since the fee award was actually in favor of the client, not the lawyer.  The Eighth Circuit reversed on the basis that the award was to the prevailing party’s attorney.  This holding was contrary to decisions in the Tenth and Eleventh Circuits, creating a cert-worthy circuit split.  Before the Supreme Court, the attorney argues that the precise language of the EAJA notwithstanding, once the fee is awarded an equitable lien against the award in favor of the attorney arises and creates a constitutionally protectable attorney interest in the award.  Further, she argues that to allow the government to invade the award to satisfy the client’s debt would undercut the policies underlying the EAJA, which include encouraging attorneys to represent clients in cases where counsel might otherwise be unavailable.  As of this writing, the case has not yet been scheduled for oral argument.