Is it just me or did the idea of personal integrity take some especially hard hits in 2008? Not just in the legal profession—we’ve had plenty of that—but in general.  In a corruption trifecta that erupted as the year came to a close, we saw two major stories involving lawyers (discussed below) and one involving Bernard Madoff, a high flying Wall Street investor who allegedly bilked many clients, including a number of charitable foundations, out of $50 billion in assets through a Ponzi scheme.  Am I naïve to be shocked at conduct on this scale?  Should my shock and dismay be a function of the number of place-holders to the right of the dollar sign?  Be forewarned, my mood is dark.

Herewith, my idiosyncratic top ten professional responsibility stories for 2008 in no particular order. Because of the quantity of raw material in 2008, in some instances, I have cheated and grouped several related stories together.

Indiana

  1. Judging judges. On September 28, 2008, the Indiana Supreme Court ordered a new Code of Judicial Conduct, effective January 1, 2009. Largely based on the ABA Model Code of Judicial Conduct, Indiana was one of the first states to complete a revision of its code using the ABA template.
  2. Knowing when you’re not wanted. At the end of its 2007 term, the U.S. Supreme Court decided Indiana v. Edwards. Edwards, the defendant in an attempted murder case, was found competent to stand trial, but over his objection, counsel was appointed to represent him in the case because he was thought to be incompetent to conduct his own defense. Relying on U.S. Supreme Court precedent, the Indiana Supreme Court had decided that the trial court’s decision unconstitutionally burdened Edwards’s right to self-representation.  The U.S. Supreme Court reversed, holding that the Constitution permits a State to limit a defendant’s self-representation right by requiring representation of counsel when the defendant lacks the mental competency to conduct his trial defense on his own. As a constitutional matter, the tests for competency to stand trial and competency to conduct a defense are different.

What does this have to do with legal ethics? The plight of counsel who is appointed under these circumstances, that’s what.  Foreshadowing the result in Edwards, late last year the ABA Standing Committee on Legal Ethics and Professional Responsibility issued Formal Opinion 07-448, in which it discussed the problems associated with being appointed counsel for a defendant who does not want to be represented.  In a well-reasoned opinion, the Committee took the view that counsel who is appointed under these circumstances acts more as an agent for the tribunal than for the defendant—playing a role dictated by the terms of the tribunal’s appointment.  It cannot be a true attorney-client relationship, which is, of necessity, consensual in nature.

My quibble with the ABA opinion is that it doesn’t take on the related question of the lawyer’s appearance. Under Indiana Trial Rule 3.1, the entry of an appearance signifies that a lawyer is acting in a representative capacity.  When appointed counsel has been foisted upon an unreceptive defendant, I think the appearance form should explicitly set forth the special character of the lawyer’s role.

  1. You never know who might be listening. On October 28, the Supreme Court discussed without deciding whether it was improper for a prosecutor to review tape recordings of telephone conversations between a jailed criminal defendant and his lawyer. Bassett v. State, 895 N.E.2d 1201 (Ind. 2008). When calls were placed by a jail inmate, a recording warned the caller that the call was subject to being recorded.  The prosecutor reviewed some of the recordings as part of an investigation into possible witness tampering and threats against his own deputy prosecutor.  The Court held that the calls were not protected by the attorney-client privilege because the recorded warning made it unreasonable to believe the calls were confidential.  Because the attorney-client privilege was not invaded, there was no Sixth Amendment violation.  There was also a claim of prosecutorial misconduct which failed because there was no showing that the defendant was placed in grave peril by the conduct in question.  The Court’s focus was on the grave peril analysis, and failed to reach the more interesting question of whether listening to the recordings was prosecutorial misconduct at all.
  2. That’s a lot of money. As the year wound to a close, Schererville attorney William G. Crabtree, II was indicted in federal court on two counts of mail fraud, two counts of wire fraud and one count of tax evasion. The indictment alleges a scheme by which clients were defrauded of at least $2.2 million.  On December 11, 2008, the Indiana Supreme Court accepted Crabtree’s resignation from the bar.  At the time, the Disciplinary Commission had a petition pending for his emergency interim suspension from practice.

National 

  1. The bonds of confidentiality weigh heavy. The year featured four unrelated but similarly vexing cases from Illinois, Virginia, North Carolina and Louisiana. Three of them dealt with the murky limits of client confidentiality when maintaining a client confidence might mean that someone who is innocent will remain in prison or even be subject to execution.  The fourth dealt with keeping a friend’s confidence to the point of almost letting an innocent man be executed.

In Illinois, Alton Logan was convicted in 1982 of killing a security guard at a McDonalds and sentenced to life in prison after avoiding a sentence of death. The jury didn’t believe his mother and brother when they testified that he was at home asleep at the time.  Meanwhile, Illinois lawyers Dale Coventry and Jamie Kunz were representing Andrew Wilson, who was charged with killing two police officers.  Wilson convinced them that he, not Logan, had killed the McDonalds guard, but he swore them to secrecy.  Wilson died in prison in 2008, at which time, Coventry and Kunz, having been previously authorized by Wilson to disclose the information upon his death, released an affidavit they made in 1982 about Wilson’s admission.  After 26 years in prison, Logan was freed in September.

In the Virginia case, attorney Leslie Smith represented a cooperating co-defendant, William Jones, ten years ago against Daryl Atkins in a capital murder case. Jones’s testimony fingered Atkins as the shooter, contributing to his conviction of capital murder.  The problem was that Smith witnessed prosecutors engaging in unethical coaching of Jones.  Relying on a bar counsel opinion, for ten years Smith was constrained to maintain silence.  But in 2007, Smith sought and received new guidance from the bar that allowed him to talk, and he did.  In 2008, Atkins’s sentence was commuted to life in prison due to prosecutorial misconduct.

North Carolina attorney Staples Hughes represented Jerry Cashwell, a co-defendant with Lee Hunt in a double murder case. Both were convicted and sentenced to life terms.  The case against Hunt was circumstantial, and Cashwell made a statement to Hughes that exonerated Hunt, but he did not authorize Hughes to disclose it.  Twenty years later in 2006, after Cashwell committed suicide in prison, Hughes felt like he was free to reveal what he knew and testified in Hunt’s favor at a hearing.  The trial judge reported this seeming breach of lawyer confidentiality rules to the state bar, which conducted a lengthy investigation before determining in 2008 to not file a disciplinary charge.  Meanwhile, Hughes, who has exhausted his state remedies without success, remains in prison and is pursuing federal habeas corpus relief.

In a column from late last year, I mentioned a case involving the discipline of a Louisiana lawyer for failing to timely report the misconduct of a friend, who, during the course of disclosing that he was terminally ill, confessed that when he was a prosecutor he suppressed exculpatory evidence that led to an armed robbery conviction. Lundberg, Divided Duty: Reporting Misconduct (Part II), Vol. 52, No. 4 Res Gestae 36 (2008).  The lawyer only came forward with the information when five years later he heard that  lawyers for the defendant, John Thompson, had uncovered the potential exculpatory evidence a mere month before Thompson’s scheduled execution for a later capital murder conviction.  The armed robbery conviction was set aside due to prosecutorial misconduct, and because that conviction had chilled the defendant’s right to testify on his own behalf in the capital murder case, that conviction was set aside, too.  Now comes news that on December 22, the Fifth Circuit Court of Appeals affirmed a jury verdict of $14 million in Thompson’s favor and an award of $1 million in attorney fees in a §1983 case against the New Orleans district attorney’s office for deliberate indifference to its obligation to train prosecutor’s about their disclosure obligations under Brady v. Maryland 

  1. Lawyer-politicos in the spotlight. As the year wraps up Illinois is in the middle of a major governmental crisis as Rod Blagojevich, its governor and a lawyer, has been criminally charged in federal court with allegedly trying to auction off President-elect Barack Obama’s Senate seat to the highest bidder.

In Michigan, Detroit mayor and lawyer, Kwame Kilpatrick, pled guilty to two counts of obstruction of justice and resigned as mayor in September. His Michigan law license was automatically suspended in the same month due to the conviction.

And let’s not forget Ted Stevens, a U.S. senator and lawyer from Alaska, who was convicted in October of seven felonies for violating federal ethics laws that require disclosure of gifts.

Earlier in the year, New York governor and former wunderkind attorney general, Eliot Spitzer, resigned from office in disgrace after he admitted being a customer in a high-priced interstate prostitution ring. One of the more compelling visual images of the year was of Spitzer’s wife, Silda Wall Spitzer, standing grim-faced behind him at the press conference where he announced his resignation as governor.  At this writing, it is not known whether professional discipline awaits.

Lewis “Scooter” Libby was disbarred in the District of Columbia and Pennsylvania after being convicted of obstruction of justice, perjury and making false statements in a special prosecutor’s investigation of press leaks about CIA employee, Valarie Plame Wilson.

  1. Prominent lawyers in the hot seat. It was a grim year for high profile lawyers. The New York bar is reeling from the indictment of prominent New York City lawyer, Marc Dreier, on charges relating to hundreds of millions of dollars of alleged fraud. As this article goes to press, Dreier is being held without bond pending trial.  Meanwhile, his law firm, Dreier, LLP, of which he was the sole equity owner, is no longer operational, the firm trust account is under water, and it has filed for bankruptcy, leaving 250 lawyers and many more support staff abandoned.  There has been a great deal of commentary in the legal press about the imprudence of Dreier’s law firm model—a single owner with no one looking over his shoulder.

In March, Melvyn Weiss, a name partner in New York-based Milberg Weiss, pled guilty to fraud charges for paying kickbacks to named plaintiffs in cases his firm handled as part of his high-profile investor class action practice. He didn’t go down alone.  His former partner, William Lerach, pled guilty to similar charges.

In a notorious case of self-dealing in aggregate settlement proceeds from a mass tort case involving the diet drug Fen-phen, Kentucky lawyers William Gallion, Melbourne Mills, Jr. and Shirley Cunningham were held liable for $42 million in civil judgments. In a related federal criminal case, Mills was acquitted, having defended on the basis that he was consistently too drunk to know what was going on.  Meanwhile, the jury dead-locked on the criminal charges against Gallion and Cunningham, and they are scheduled to be re-tried in early 2009.  Mills appears to be contesting his state discipline charges (too drunk for discipline?), but Gallion and Cunningham were both permanently disbarred on consent in October.

Famous Mississippi lawyer, Richard “Dickie” Scruggs, who made his name in tobacco litigation, pled guilty to conspiring to bribe a judge and was sentenced to five years in prison.

  1. Gettin’ out at GITMO. At the risk of diluting this parade of human corruption with something more affirmative, there were two noteworthy, high-profile defections from the prosecution ranks at the Guantanamo Bay military prosecutor’s office. The latest was Army Reserve Lt. Col. Darrel Vandeveld, who in October asked to be relieved of duty as a prosecutor and returned to civilian status. This follows other resignations, including Air Force Col. Morris Davis, who quit as chief prosecutor in October of last year.  Given the secrecy surrounding Guantanamo, it is understandable that very few details are public.  Still, it is extraordinary to see highly publicized prosecutorial resignations under these circumstances.
  2. Judicial sex and the death penalty. In 1990, Charles Hood was sentenced to death in Texas. The sentencing judge, Verla Sue Holland, was involved in an undisclosed romantic relationship with the prosecutor in the case, Thomas O’Connell, before and possibly including the time of Hood’s trial. These facts came out much later on the eve of Hood’s June 2008 execution date, when an assistant prosecutor disclosed rumors of the affair in an affidavit.  In September, the Texas Court of Criminal Appeals granted a last minute stay of a rescheduled execution date on the basis of a previously decided jury instruction issue, inexplicably avoiding the distressing question of judicial misconduct.  That issue still dangles, unresolved.  One troubling aspect of the case is that many local lawyers, possibly even members of the trial defense team, were apparently aware of the relationship when Hood was on trial, but maintained their silence.  Meanwhile, the case is back in a trial court to determine whether Hood waited too long to raise the issue.
  3. Federal Evidence Rule 502. On September 19, 2008, President Bush signed new Federal Rule of Evidence 502 into law. This is a follow-on development to F.R.Civ.P. 26(B)(5), which governs electronic discovery. One problem with discovery of electronically stored information is that amongst the vast quantity of materials released in discovery, privileged materials might be inadvertently disclosed.  Should the disclosure be treated as a waiver of privilege (typically attorney-client privilege)?  Should the inadvertence associated with the disclosure preclude it from being treated as a waiver?  The cases have approached the problem in diverse ways.  F.R.Evid. 502 is an effort to bring consistency to the analysis.

Rule 502(a) deals with the question of subject-matter waiver. In effect, an inadvertent disclosure, even if it constitutes a waiver, will act as a waiver only as to the materials disclosed, not to other materials regarding the same subject matter.  Even intentional disclosures will act as a waiver of other related materials only if “they ought in fairness to be considered together.”

Rule 502(b) establishes a test for courts to use in deciding whether an inadvertent disclosure should be treated as a privilege waiver. It requires that the disclosing party have taken reasonable steps to prevent disclosure and took prompt and reasonable steps to rectify the mistake.  A court can trump the rule by specific order, and the parties can agree to handle inadvertent disclosures in some other way.  Unless it is incorporated into a court order, the parties’ agreement will not bind third parties.  Finally, there is some very interesting language in the rule that tries to deal with the interplay between federal and state waiver law, which may not be consistent.

This, on its face, seems to be an evidence, not a professional responsibility, story. But remember that Rule of Professional Conduct 4.4(b) imposes a duty on counsel in receipt of inadvertently sent information to promptly notify the sending party.  Thereafter, legal, not ethical, considerations take over.

One More for Good Measure 

  1. It’s the economy, stupid! In keeping with this year’s sober theme, my traditional eleventh throwaway item is not frivolous at all. It’s the economy. In mentioning this, am I taking indecent liberties with the subject matter of this column?  I don’t think so, and here’s why.  When lawyers are in tough economic times, some of our brothers and sisters will take desperate measures to maintain income or meet cash flow needs.  It might include fraudulent or unreasonably excessive fee billing.  Maybe it will involve making temporary, unauthorized use of trust funds to get over a cash flow crisis.

I also predict an uptick in business at the Disciplinary Commission because many lawyers who planned to retire will no longer be able to. Some of them will keep practicing, but their hearts or heads might no longer be in the game.  In other cases, lawyers who may not be fully capable of practicing diligently and competently because of health problems will feel the need to keep going.  Continuing to practice without passion or commitment is a formula for disservice to clients.  If that happens, disciplinary complaints will go up.

Incorrigible: Can’t Resist The Throwaway

  1. The brotherhood of the traveling pants. Roy Pearson, a former federal administrative law judge, sued a mom and pop dry cleaners for $54 million for allegedly losing the pants to a suit. He claimed that the owners’ “Satisfaction Guaranteed” promise gave him a claim under a consumer protection ordinance to damages of $18,000 for each day the pants were unreturned. The much-ridiculed litigation drove the owners out of business.  Undaunted at having his outrageous claim mocked and rejected at every turn, Pearson appealed to the D.C. Court of Appeals.  On December 18, a unanimous panel affirmed the trial court’s dismissal as a display of “basic common sense.”  Maybe that should become our mantra for 2009.  Here’s to a New Year of basic common sense.