In Washington DC, disbarment is mandatory for convictions of crimes that involve moral turpitude, yet I continue to be baffled by Washington DC's concept of moral turpitude. I have discussed cases that found no moral turpitude when a lawyer was convicted of murdering his wife (here), or of stealing property from a store for personal gain (here), or of felony traveling for the purpose of engaging in sex with a minor in a case in which the attorney had made a 12-year-old boy his sex slave for six years (here). Yet tampering with a witness was considered to involve moral turpitude (here). See here for more.
Adding to the list now we have a case in which an attorney who pleaded guilty to a misdemeanor violation of 22 D.C. Code section 3531(c), which makes it a crime to electronically record, without consent, a person using a bathroom or restroom or who is undressing or changing clothes.
According to the Legal Profession blog, Maryland recently disbarred an attorney who videotaped three tenants in intimate encounters.
In Washington DC, apparently this type of conduct is not considered to involve moral turpitude and resulted in only a three year suspension.
The Legal Profession Blog has more information on the case here.
For a short summary of the issues related to the concept of moral turpitude go here.
UPDATE (7/30/16): The District of Columbia Board on Professional Responsibility has issued its long-awaited report in which it explains that it disagreed with a hearing committee recommendation and
concluded that the attorney's crime involved moral turpitude. The Legal Profession Blog has more details here. The Board apparently stated this was "a difficult case." I don't understand that. To me this was an easy case, but as you know, I have long had reservations about DC's concept of moral turpitude, so what do I know...
Saturday, July 30, 2016
Tuesday, July 26, 2016
South Carolina opinion finds lawyer can wait until litigation is over to report misconduct under rule 8.3
The South Carolina bar's ethics committee has issued an opinion (S.C. Bar Ethics Advisory Comm., Op. 16-04, 7/18/16) holding that a lawyer who believes an opposing attorney in a pending
matter has committed professional misconduct may wait until the
proceeding concludes to make a disciplinary report.
The generally accepted rule on this is that if the rule applies, attorneys must disclose misconduct "promptly." However, it is not always clear what "promptly" means. In the well known In re Himmel case in Illinois, the affected attorney argued that he did not want to disclose the misconduct because doing so would be contrary to his client's interests. The attorney wanted to wait until he got his client the compensation the client wanted before disclosing. In that case, the court did not buy the argument.
Yet, it appears the SC committee agrees with it, holding that a lawyer may wait until the conclusion of the matter if the lawyer determines immediate reporting may hurt the client. However, the misconduct should be reported “promptly” at the conclusion of the litigation or appeal. Thus, the committee concluded that “it is appropriate for a lawyer to consider any potential adverse impact to his or [her] client in determining the timing of a report against another lawyer.”
I understand the spirit of the opinion, but it seems to me it does not take into account that civil litigation can take years to conclude. Indeed, although not all cases take years to conclude, it is certainly not uncommon for some cases to last a long time. Should that make a difference? And what if the representation is not in litigation?
The generally accepted rule on this is that if the rule applies, attorneys must disclose misconduct "promptly." However, it is not always clear what "promptly" means. In the well known In re Himmel case in Illinois, the affected attorney argued that he did not want to disclose the misconduct because doing so would be contrary to his client's interests. The attorney wanted to wait until he got his client the compensation the client wanted before disclosing. In that case, the court did not buy the argument.
Yet, it appears the SC committee agrees with it, holding that a lawyer may wait until the conclusion of the matter if the lawyer determines immediate reporting may hurt the client. However, the misconduct should be reported “promptly” at the conclusion of the litigation or appeal. Thus, the committee concluded that “it is appropriate for a lawyer to consider any potential adverse impact to his or [her] client in determining the timing of a report against another lawyer.”
I understand the spirit of the opinion, but it seems to me it does not take into account that civil litigation can take years to conclude. Indeed, although not all cases take years to conclude, it is certainly not uncommon for some cases to last a long time. Should that make a difference? And what if the representation is not in litigation?
Thursday, July 21, 2016
Washington State Supreme Court holds plaintiff has to show actual innocence in malpractice claim against former criminal defense lawyer
Back in February I reported (here) that the two most recent decisions on whether a convicted criminal defendant had to prove actual innocence in order to recover for malpractice against his or her former lawyer had broken away from the majority view on the issue. The majority view is that the plaintiff does have to obtain post conviction relief and prove that he or she was actually innocent of the crime for which they were convicted. Yet cases in Kansas and Iowa recently held otherwise.
Now comes news that the Washington State Supreme Court has reversed the trend and has held that a criminal defendant must establish actual innocence to sue the defense attorney for malpractice. The case is called Piris v Kitching and you can read the opinion here. The Legal Profession blog has more details here.
One Justice dissented in Piris, making what I think is a persuasive argument. Interestingly, the argument is not that plaintiffs should not have to show actual innocence in all cases, but that it was improper to use that "rule" in this particular case because the plaintiff had already obtained post conviction relief.
Now comes news that the Washington State Supreme Court has reversed the trend and has held that a criminal defendant must establish actual innocence to sue the defense attorney for malpractice. The case is called Piris v Kitching and you can read the opinion here. The Legal Profession blog has more details here.
One Justice dissented in Piris, making what I think is a persuasive argument. Interestingly, the argument is not that plaintiffs should not have to show actual innocence in all cases, but that it was improper to use that "rule" in this particular case because the plaintiff had already obtained post conviction relief.
Christopher Piris successfully obtained postconviction relief from a miscalculated sentence. But due to alleged attorney negligence, he was not timely resentenced and he spent more time imprisoned than his corrected sentence authorized. The majority holds that Piris cannot pursue malpractice claims against his defense attorneys unless he proves he is actually innocent of the underlying charges. I disagree. When a client wins postconviction relief for resentencing and attorney negligence results in the client's excessive imprisonment because the client did not timely receive the benefit of resentencing, it is no excuse to say that the client was subject to some imprisonment. Extending the "actual innocence rule" to the unique circumstances of this case serves only to perpetuate an injustice. I respectfully dissent...In other words, the plaintiff in the malpractice case (defendant in the original criminal case) endured a longer stay in jail (more than a year) because of the attorney's conduct. Yet the court says he was not entitled to a remedy because he was "due" some time in jail anyway. The fact that the attorney's conduct caused him to suffer more than he was legally "due" is irrelevant to the majority. I agree with the dissent in this case. This view is not justified. It allows for an injustice to go unpunished and gives a pass to an attorney whose conduct clearly caused injury to the client. I don't see why it makes sense to give the attorney such a free pass.
Tuesday, July 12, 2016
What Can Johnny Manziel Teach Lawyers About Ethics?
What Can Johnny Manziel Teach Lawyers About Ethics? Go here for the first installment of this multi-part column at IPethics & INsights.
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