With apologies to David Letterman, I thought it might be fun to put together a list of top ten professional responsibility stories in 2006. Included is a mix of national and state stories. With the exception of number ten, which belongs there or far lower, they are in no particular order.
- Chief Justice Shepard Reappointed for Unprecedented Fifth Term. This might strike you more as pandering to my ultimate employer than as a professional responsibility story. I won’t bother to deny the accusation, but it is worth noting that Chief Justice Shepard was unopposed by any of his colleagues during the recent Chief Justice selection process. In remarks to the Judicial Nominating Commission that reflected the support of the other justices, Associate Justice Frank Sullivan said: “During my now 13 years on the Court, I observed his intellect, his dedication and his skill at close hand and can say without reservation that he is absolutely the right person to lead the court and the Indiana judicial system—indeed, the Indiana legal system—in the years ahead.” We should not take the integrity and collegiality of our high court for granted. Look one state to the north to see a supreme court in tatters over conflicts in judicial philosophy and personality. In 2006 and continuing into this year, the public fracturing of the Michigan Supreme Court has been prominently on display in both the legal and popular press. If lawyers are going to walk the walk of civility, courts need to be preeminent role models. Our Supreme Court is one.
- Malpractice Insurance Notice Requirements Gain Momentum. What began as a trickle has morphed into a tidal wave as more states require lawyers to disclose their lack of legal malpractice insurance. The dominant model (fifteen states) requires lawyers to disclose on their annual registration statements—which are accessible to the public—whether they have malpractice insurance at minimum coverage levels. Five states require lawyers to give written notice to clients if they do not have minimum malpractice coverage. Oregon requires malpractice coverage through its state bar association’s malpractice insurance program. Their hefty annual bar dues include an insurance premium. As yet, Indiana does not require malpractice coverage or disclosure, but the national trend is clearly in that direction.
- Duke Lacrosse Team Prosecutor Charged With Ethics Violations. Michael B. Nifong is the North Carolina prosecutor who charged several Duke University lacrosse team members with rape. The North Carolina State Bar Association filed discipline charges against Nifong for violating the Rules of Professional Conduct. The charges focus on Nifong’s alleged misuse of pre-trial publicity, failure to make proper disclosure to the defense of DNA results, and misrepresentations to the court, opposing counsel, and the bar grievance committee. This high profile case will undoubtedly bring significant attention to the special ethical responsibilities of prosecuting attorneys.
- State Bar Association Proposes Advertising Rules Overhaul. In October, the State Bar Association House of Delegates approved, with minor modifications, a bar committee’s recommended overhaul of the Rules of Professional Conduct that govern lawyer advertising and publicity—Rules 7.2 through 7.5. The proposed rules have been transmitted to the Indiana Supreme Court and its Committee on Rules of Practice and Procedure recently posted the proposed rules on-line at: http://www.in.gov/judiciary/rules/proposed/2007/pcr-isba(jan).pdf. Comment is sought by May 11, 2007. The current advertising rules have remained largely untouched since 1987 and were not seriously re-examined as part of the extensive Ethics 2000 revisions to the Rules of Professional Conduct that went into effect on January 1, 2005.
- Medical Malpractice Attorney Fees. In Matter of Stephens, 851 N.E.2d 1256 (Ind. 2006), the Supreme Court held that a lawyer contracted for an unreasonable fee in a medical malpractice case. The lawyer structured the fee agreement so as to take as much of the client’s recovery from the medical provider as needed to offset the fifteen percent statutory limit on the fee from the Patient’s Compensation Fund recovery and make the overall fee at or as close as mathematically possible to one-third of the overall recovery. This decision rocked the plaintiffs’ medical malpractice bar. As a result, the Indiana Trial Lawyers Association sought leave of the Court to further brief the issue. The Court agreed to take further briefing and it is now under advisement. Stay tuned.
Focus on Right to Counsel. Right to counsel figured prominently in the national news in 2006. Three prominent stories were:
- Role of Counsel in Detainee Cases. In Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006), the U.S. Supreme Court concluded that the military commission convened to try Salim Ahmed Hamdan for terrorism-related charges lacked a structure and procedures to ensure the basic rights that are incorporated into military and international law. Important to the Court’s analysis was the absence of procedures that allowed counsel a meaningful opportunity to assist Hamdan by seeing and hearing the evidence against him. In response to Hamdan, Congress passed the Military Commissions Act of 2006, which, among other things, limited the use of civilian defense counsel to attorneys who have been cleared for access to information that is classified at the Secret level or higher. 10 U.S.C. sec. 949c(b)(3)(D).
- Justice Department Acknowledges, But Does Not Cave In To, Pressure on Waiver of Corporate Attorney-Client Privilege. In certain corporate fraud cases, the Department of Justice demands waiver of the corporate attorney-client privilege and attorney work product protections when assessing the degree of cooperation in settling cases. Corporate waiver can be instrumental in giving the government access to information that might assist it in evaluating whether to bring charges against corporate agents. In the face of intense criticism, the DOJ did a partial about face in December. It adjusted its policy, not so much in substance, but by requiring more internal review before it demands waiver as a precondition to a finding of cooperation. The critics were not appeased. In the waning days of the last Congress, U.S. Sen. Arlen Specter introduced legislation that would compel the DOJ to go further. It remains to be seen if the bill will be reintroduced in this Congress.
- Supreme Court Says Right to Counsel Might Be More Important Than Bar Admission Standards. In United States v. Gonzalez-Lopez, 126 S.Ct. 2557 (2006), the Supreme Court held that a defendant was denied effective assistance of counsel in violation of the Sixth Amendment when a federal judge denied pro hac vice admission to the defendant’s counsel of choice. The Court held that when there is an erroneous deprivation of counsel of defendant’s choice, no showing of prejudice is necessary for the conviction to be reversed. The Court added that its opinion should not be read to undermine the authority of courts to enforce standards for admission to practice before them, because the government conceded that the trial court erred in denying pro hac vice admission. Even so, this case raises interesting questions about whether state court power over temporary admission of foreign lawyers might be trumped by a defendant’s constitutional right to counsel of choice.
- Unauthorized Practice of Law. In State of Indiana ex rel. Indiana State Bar Association v. Northouse, 848 N.E.2d 668 (Ind. 2006), the Indiana Supreme Court held that the preparation of estate planning documents by a non-lawyer constituted the unauthorized practice of law. In an important opinion, the Court reaffirmed its long-standing view that “[t]he core element of practicing law is the giving of legal advice to a client and the placing of oneself in the very sensitive relationship wherein the confidence of the client, and the management of his affairs, is left totally in the hands of the attorney.” The Court said that preparing and giving advice about wills, living trusts, powers of attorney, etc. is the practice of law. The fact that a lawyer drafted the forms did not necessarily insulate the defendants from a charge of unauthorized practice. The Court ordered a return of the fees collected and encouraged prosecutors to consider filing criminal charges in unauthorized practice of law cases.
- Pop Culture: Anna Nicole Smith’s Lawyer Admits He’s the Father of Her Baby. The headline says it all. Howard K. Stern, a California lawyer and the attorney for recently deceased Anna Nicole Smith, admitted that he was the father of her baby. He said he kept it quiet because of his long-standing legal relationship with her. At this writing, two other gentlemen are competing for being the father and DNA testing is in the offing. In Indiana, lawyers aren’t supposed to sleep with their clients. See Indiana Rule of Professional Conduct 1.8(j). Don’t stay tuned—I promise I’ll never use this story as a hook to discuss legal ethics again.