• Attorneys,  Ethics,  New Trials

    Egregious attorney misconduct at trial leads to reversal on appeal

    When I was a young lawyer, a mentor told me to practice as if the rules will always be strictly enforced against me and my client, yet never enforced against the other side. I always took that as a bit of rhetorical flourish meant to emphasize careful compliance with the rules and to be ready for anything from the other side, but my mentor’s admonition appears to have been manifest in the trial leading up to Martinez v. State of California Dept. of Transportation, case no. G048375 (4th Dist., June 12, 2015, certified for publication July 7, 2015). The misconduct paid off in the short term by getting a defense verdict,…

  • Appellate Advocacy,  Briefing,  Ethics,  Legal Writing

    Don’t get snide on appeal

    Snideness is never an attractive trait, but it is distressingly common in trial court. No offense to you trial lawyers out there, but I find snideness far less prevalent in appellate practice, and, on those occasions where it does raise its ugly head, the justices seem far more hostile to it than most trial judges are. Which brings me to a 2009 case that I ran across today, Nazir v. United Airlines (2009) 178 Cal.App.4th 243, in which plaintiff’s counsel, apparently from a solo or small office, squared up against an employment law powerhouse and not only won, but got to see the powerhouse firm spanked by the Court of…

  • Blogging,  Ethics,  Legal Humor

    Your RSS feed reader is not malfunctioning

    That’s right, this really is a new post. I didn’t plan to go for more than a month without posting — the longest time I’ve ever had between posts without first announcing a hiatus —  but events got the best of me. Which is OK.  Between clients and the blog, it’s not a close call. I do plan to get a substantive post up this week and get back on a regular posting schedule soon.  Just wanted you all to know the blog has not been abandoned. As a welcome back treat, allow me to share a couple of blawg items I found interestting. First, I just ran across a…

  • Ethics,  Legal Writing

    Can Bad Legal Writing Get You in Trouble?

    You bet it can, and your boss isn’t the only one who can create trouble for you.  To see what other kinds of trouble you can get into, and how to avoid it, check out this oldie but goodie (but just recently posted to SSRN), Ethical Legal Writing, from UT law professor Wayne Schiess of Legalwriting.net and its blog.  The abstract: “This article describes real cases in which lawyers got into trouble for poor legal writing: court sanctions, fines, bar discipline, civil liability, and public humiliation. It offers advice for avoid [sic] those fates.”

  • Appellate Procedure,  Briefing,  Ethics,  Legal Writing

    It Turns Out that Your Appendix on Appeal is Quite Similar to the One in Your Abdomen

    “Your appendix is a vestigial organ with no known function but it will kill you if it goes awry.”  That’s the clever moral Professor Childress of Legal Profession Blog draws from the story of the attorney who inadvertently submitted an appendix that included his margin notes commenting on the court’s prior opinion.  His post also has additional links regarding the story. Of course, your appendix on appeal does have a function (though I can understand how the temptation to write that line was irresistible to Professor Childress).  But the larger point remains: proof your appendix as carefully as you do your brief.

  • Appeals,  Ethics,  Sanctions

    A Disregard for Fiduciary Duties that is “Without Precedent”

    Picture this: You represent the defendant in a lawsuit.  You don’t have time to handle his case — indeed, you admit as much on the record — and the court imposes terminating sanctions against your client for failing to respond to discovery.  Because of your admission, your client is allowed to obtain new counsel, but new counsel is unsuccessful in getting the sanctions order vacated, and a default judgment of $730,000 is entered against your client, who then promptly sues you for malpractice and, while that suit is pending, appeals the default judgment.  What do you do, besides give notice to your malpractice carrier? If you’re the defendant’s first attorney…

  • Ethics

    Should There Be a Wrongful Incarceration/Execution Exception to Attorney-Client Confidentiality?

    Professor Colin Miller at Evidence Prof Blog thinks so, and links to a draft of his essay advocating the exception. The abstract of his essay references Alton Logan, a man wrongfully imprisoned for 26 years while lawyers who knew the identity of the actual killer stood mute in order to protect client confidences: In 1982, Alton Logan was convicted of first degree murder based upon being the trigger man in a robbery gone wrong at a Chicagoland McDonald’s. What the jury who convicted Logan did not hear was that another man, Andrew Wilson, confessed to the crime Logan allegedly committed. The problem was that Wilson confessed to his attorneys, public…

  • Ethics,  Judges

    A Conspiracy Theorist’s Delight

    In In re Complaint of Judicial Misconduct, case no. 07-89012 (Judicial Council of the 9th Cir. May 14, 2008), the complainant was an attorney who was also a plaintiff in a civil action. He filed a complaint against both the district judge and the magistrate judge to whom the district judge referred the civil case. The title of this post relates to the charges made by the complainant. The complainant alleged misconduct regarding both judges with respect to discovery rulings and their decisions to continue with the case following his filing of a notice of appeal. Chief Judge Kozinski’s order characterizes these charges as challenges to the rulings themselves. Complainant…

  • Appellate Procedure,  Ethics,  Standard of Review

    California Supreme Court Rejects De Novo Review of Recusal Determinations

    In two cases with a local angle – both originating in neighboring Santa Barbara County and thus reaching the Supreme Court through our local Court of Appeal (Second District, Division Six) – the Supreme Court reaffirms that recusal motion determinations are reviewed only for abuse of discretion.  It rejects the justifications offered by the Court of appeal for heightened review in cases of “first impression,” capital cases, or the reviewing court’s “independent interest” in “policing conflicts of interest and addressing potential errors at the earliest opportunity” In Haraguchi v. Superior Court (People), case no. S148207 (May 12, 2008), the Santa Barbara County deputy district attorney assigned to prosecute the accused…

  • Ethics

    Help Write the Revised Ethics Rules

    The Rules of Professional Conduct of the State Bar of California are being revised, and you are invited to comment on the proposed revisions to thirteen rules. The revision commission is a long way from done; this public comment opportunity is an intermeduiate step in a long, long process, which is spelled out in detail at the link. But it is your opportunity to be heard, so head to the link if you’re interested. Deadline for comments is June 6, 2008, and they may be submitted in writing wither by snail mail or over the web. Detailed instructions at the link.

  • Attorney Fees,  Ethics,  Law Practice & Marketing

    What Happens to the Trial Lawyer’s Contingency Fee when an Appeal is Taken?

    The Texas Appellate Law Blog has done all appellate lawyers and contingency fee trial lawyers a favor with a post urging trial lawyers to include in their contingent fee agreements a provision explaining how the fee is affected if an appeal is taken:  “There really is no right or wrong way to do it, but in my view, contingent-fee agreements should always spell out what happens in the event of an appeal.”  He also covers a number of different ways to do it.  Please check it out.

  • Ethics,  Judges

    Would this have Worked for the California Supremes?

    The WSJ.com Law Blog posts today about possible remedies for the problem of recusal of Supreme Court Justices due to stock ownership in one of the parties, noting that Chief Justice Robert’s recent recusal from a case resulted in a “problematic even-numbered panel” that rendered a 4-4 decision in Warner-Lambert Co., LLC v. Kent, case no. 06-1498 (Mar. 3, 2008). The Law Blog links to this post at The Volokh Conspiracy, where Professor Volokh floats the idea of requiring justices to sell stock in a party upon the granting of certiorari. The availability of designated justices may make this seem like a moot consideration for our own Supreme Court, but…

  • Ethics,  Law Practice & Marketing,  Legal Humor

    Lawyer Advertising Pit Bulls, uh, Make That Pitfalls

    Not that you’d ever know it from reading this blog, but I’m a pretty funny guy. So I like things about humor and the law. A front page article in last Thursday’s Wall Street Journal documents how badly some state bars lack a sense of humor (subscription required — if that link doesn’t work, go to this post at the WSJ.com Law Blog, which appears to allow non-subscribers to link to the article). Take the opening few paragraphs: Syracuse, N.Y., attorney James Alexander ran a TV spot for his firm showing lawyers offering counsel to space aliens who had crashed their UFO. He also did one with lawyers towering like…

  • Attorney Fees,  Blogging,  Ethics

    Pro Bono Attorney Fees in the News Again

    National Law Journal has a new article called Pro Bono Case Triggers a Fee Fight on the controversy surrounding the attempt of a Seattle BigLaw firm (Davis Wright Tremaine) seeking to recover its attorney fees under a fee-shifting statute even though it took the case pro bono. The case was the closely watched “Seattle Schools” case decided by SCOTUS last year. (If you want some background from the view of the losing party, the school district’s press release from the day of the decision is available as a PDF download.) In a very detailed post entitled The Pro Bono Road to Riches! last October, I discussed the issue in the…

  • Ethics,  Judges,  Ninth Circuit

    Ninth Circuit Judicial Complaint Disposition Orders Published Online

    Via NLJ’s L.A. Legal Pad comes news that, according to this press release from the Ninth Circuit, “disposition of judicial misconduct and disability complaints against federal judges sitting in the Ninth Circuit will be publicly available via the Internet” starting this month.  Three orders are already up. The main page includes links to the governing rules,  a page listing the orders, and a downloadable complaint form.

  • Constitutional Law,  Ethics,  Fifth Amendment - Takings

    Can an Attorney’s Labor be Taken under the Fifth Amendment?

    In Scheehle v. Justices of the Supreme Court of Arizona, case no. 05-17063 (9th Cir. – Nov. 15, 2007), the Ninth Circuit holds that a local court requirement for attorneys to serve periodically as arbitrators for nominal compensation ($75/day) is not an unconstitutional “taking” under the Fifth Amendment’s Takings Clause. Whether you think that “mandatory volunteering” is a fair trade-off for the privilege of practicing law or you prefer to think of this kind of arrangement as involuntary servitude, you should check out the posts about this case at California Appellate Report and Decision of the Day. 

  • California Courts,  Ethics,  Judges

    Updates to Code of Judicial Ethics

    This press release from the Judicial Council of California announces that the Supreme Court has approved several amendments to the Code of Judicial Ethics.  The press release recounts the areas affected before going into significant detail on the changes: The issues covered by the amendments include handling cases with self-represented litigants, judicial disclosure, character reference letters, self-reporting by judges after being charged with or convicted of certain crimes, and misusing the prestige of the office by commissioners or referees. The updated code is available as a downloadable PDF. Click here for the PDF.  The changes do not take effect until January 1, 2008.

  • Ethics

    ABA Journal on Ghostwriting for Pro Se Litigants

    Prof. Mitch Rubinstein at Adjunct Law Prof Blog links to an article at ABA Journal discussing an ABA Opinion regarding ghostwriting for pro se litigants that “concludes that it is not a violation of the Model Code for lawyers to give undisclosed assistance to pro se litigants.”  Prof Rubinstein’s brief comments are worth a look.

  • Attorney Fees,  Ethics

    Know Who Your Client Is

    When you’re suing a client for your attorney fees, it might be helpful to know who your client is. A law firm’s failure to establish that prevents its recovery of fees in Shimko v. Guenther, case no. 05-16847 (9th Cir. Oct. 12, 2007). The Guenthers were limited partners in two limited partnerships (“the CORF entities”). When the CORF entities were sued, the Guenthers and other owners sought counsel regarding their potential personal liability for the liabilities of the CORF entities. On that much, the parties agreed. But the Guenthers claimed that the CORF entities were the clients, and that, as limited partners, they were not liable for fees. The attorneys…

  • Ethics,  Torts

    Client Malpractice

    Another good post from Decision of the Day, giving the skinny on a case in which the D. C. court of appeals rejects a law firm’s attempt to sue a client for fouling up a case and costing the firm its anticipated contingency fee. Gotta give the firm points for creativity. Technorati Tags: legal malpractice

  • California Procedure,  Discovery,  Ethics,  Evidence,  Privilege

    Privilege within the Company

    Lawyer advises the CEO of his client on some litigation strategy. Privileged communication, obviously. CEO then meets with his VPs and shares the information with them. Privileged? I always thought it should be, and now I have the decision in Zurich American Ins. Co. v. Superior Court (Watts Industries, Inc.), case no. B194793 (2d Dist. Oct. 11, 2007) to back me up. The court holds that the trial court construed the attorney-client privilege too narrowly by exempting from discovery only those documents that “contain actual copies of letters or e-mail communications from outside counsel, or documents that have been created by counsel, or received by counsel, or that contain direct…

  • Ethics,  Judges,  U.S. Supreme Court

    Should SCOTUS Justices Disclose Reasons for Recusals?

    This Washington Post editorial argues that they should. It first notes the justification for not disclosing reasons for recusals: Justices have traditionally declined to elaborate on why they’ve stepped aside. One reason: a legitimate concern that revealing the cause for a recusal could empower future litigants to manufacture conflicts — such as hiring the spouse or child of a justice as a lawyer on the case — to force the removal of a justice who appears philosophically hostile to their arguments. It then argues that the most recent recusals of Justice Roberts and Justice Breyer from a pending securities suit were likely due to their ownership of stock in the…

  • Appellate Jurisdiction,  Appellate Procedure,  Ethics,  Federal Procedure,  Sanctions

    An Attorney’s Individual Right to Appeal Court Criticism

    This post at Split Circuits excerpts a recent Federal Circuit case noting a split among the circuits as to when an attorney in a federal case has a right to appeal separately from his or her client. That decision, Nisus Corp. v. Perma-Chink Systems, Inc., case no. 06-1592 (Fed. Cir. August 23, 2007) notes that while the Seventh Circuit requires the imposition of monetary sanctions before an attorney may appeal a court order critical of the attorney, other circuits, including the Ninth, “permit an attorney to appeal from a judicial order in which the court states that the attorney has engaged in professional misconduct, holding that such a declaration is…

  • Ethics,  Law Practice & Marketing,  Legal Research,  Legal Writing

    Plagiarism Sanctions Issue, Blog Readers React, and How this Relates to Value Billing

    This post at The Volokh Conspiracy post and this one at Tax Prof Blog both provide extended excerpts from an Iowa bankruptcy case in which the court sanctioned an attorney — quite stiffly — for submitting a brief that was almost entirely (15 of 17 pages) lifted word for word from an article written by two other attorneys, without attribution.  The attorney charged the client $5700 for the brief. Both posts have lengthy comment threads (Volokh’s is longer), with a great many defenders of the attorney — not for the billing, but for submitting the brief.  Many are also upset (rightfully so, to my mind) with the court’s apparent position…

  • Briefing,  Ethics

    Failure to Address Contrary Authority Again Draws Fire

    Last week, we saw a government lawyer scolded by the Ninth Circuit for making an argument directly contrary to controlling authority without even trying to argue around that authority and without even citing it.  This week, it’s the California Court of Appeal’s turn, in a slightly different context.  Yesterday, Tom Caso at The Opening Brief posted about Batt v. City and County of San Francisco, case no. A114633 (1st Dist. Sept. 12, 2007), in which he says the court “suggested it was unethical for an attorney to fail to address in your brief cases that, even if not directly on point, ‘clearly are pertinent to any meaningful discussion of the…

  • Ethics,  Legal Research,  Legal Writing

    Arguing against Binding Authority

    What do you do when your only hope is to take a position that has been soundly rejected by the same appellate court in a prior case?  Well, you don’t do it by arguing for that position as if that bad case never happened and without citing it.  The Ninth Circuit is clearly a little peeved with the Department of Justice for doing just that in Singh v. Gonzales, case no. 04-70300 (9th Cir. Sept. 7, 2007): It is the responsibility of the Department of Justice and its lawyers to be aware when its positions have been rejected by the court. While it is acceptable to make a rejected argument…

  • California Court of Appeal,  California Procedure,  Ethics,  Sanctions

    Study of Sanctions in Appellate Proceedings

    Ben Shatz, whom I’ve had the pleasure of meeting and corresponding with from time to time, has co-authored (with JoAnne Sweeny) an article recently published as “The Price of Frivolity: A Longitudinal Study of California Appellate Sanctions” (2007) 28 Whittier L.Rev. 1087. Here’s how the article describes itself in its introduction: This article attempts to fill that void [in literature regarding sanctions] by exploring the “5 W’s” — who, what, where, when and why — of California appellate sanctions by analyzing court of appeal sanctions awards from 2002 (the first year unreported cases were included in online search engines) through 2005.  More specifically, this article describes which courts award sanctions,…

  • Ethics

    The Dangers of Ghostwriting Appellate Briefs

    There’s an interesting post at Adjunct Law Prof Blog linking to an ABA Journal article on the pros and cons of ghostwriting for pro per clients, including the ethical issues involved.  I’ve been approached about this type of arrangement a couple of times, and it was tempting to accept, especially when my practice was new.  But it just didn’t pass the “smell test” to me, so I never bothered to research the ethics of it.

  • Blogging,  Ethics,  Judges

    More Internet Commentary about Judges

    Legal Pad (a very good blog regarding legal issues in California) brings our attention to CourthouseForum.com, a 2-year old website with a directory of more than 27,000 judges and a discussion forum for commenting on them.  Before you visit the site, check out Legal Pad’s post for a preview of some of the comments.  Says Legal Pad about the commenters: “And boy are they candid.” You may recall my post about an ethics complaint brought against a Florida lawyer who posted highly negative comments about a judge on a local internet forum.

  • Ethics,  Oral Argument

    Making the Record with Anger Draws Discipline

    The Legal Profession Blog brings us an example of disrespect for the court that is crystal clear, unlike the “french fry” comment that caught so many people’s attention at the end of May and again last month.  At the hearing on a continuance motion, a criminal defense lawyer, who had signed his papers “Indignantly submitted,” insisted that he would “jam these pleadings down the throat of the record as much as I feel I need to.”  Not the recommended approach, to say the least.  Check out the post at Legal Profession Blog for the consequences of this conduct.