People v. Dunbar - Legal Ethics Forum



CHAPTERETHICS IN CRIMINAL ADVOCACYPeter A. Joy and Ellen YaroshefskyEthics issues in criminal advocacy abounded in 2013. Cases involving prosecutors, defense lawyers, and the criminal justice system made headlines frequently. The year marked the 50th Anniversary of both Gideon v. Wainwright and Brady v. Maryland, and the news this year continued to include stories of Brady violations, prosecutorial misconduct and the poor state of indigent defense in the U.S. The stories we have chosen to include in this chapter represent a good cross-section of the ethics stories in criminal advocacy for the year. “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.”The most memorable quote concerning Brady this past year came in a strongly worded dissent by Judge Alex Kozinski, chief judge of the U.S. Court of Appeals for the 9th Circuit, from a decision not to rehear U.S. Olsen: "There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it." In Olsen, a three-judge panel detailed extensive instances of the government withholding exculpatory and impeaching evidence, but did not reverse the conviction finding that the withheld evidence was not material. At trial, Kenneth Olsen had been convicted of developing a biological agent, ricin, for use as a weapon. Olsen had claimed that he was simply curious about the manufacture of ricin, and the government did not have specific evidence that Olsen intended to kill anyone with it. Key to the government’s case was a bottle of allergy pills found in Olsen's lab that, according to forensic specialists, contained traces of ricin. One forensic analyst who handled the pills, Arnold Melnikoff, was under investigation for forensic misconduct by the time of Olsen’s trial. Melnikoff’s testimony had already been tied to three wrongful convictions, and an internal investigation of his work found improprieties in 14 of 100 randomly chosen cases. The report found that his mistakes included evidence analysis, data interpretations, errors in written reports, and a tendency to reach stronger conclusions as cases developed. He was eventually terminated, and a court affirmed the termination “finding Melnikoff was incompetent and committed gross misconduct.”The defense tried to discredit the evidence of ricin noting that Melnikoff had dumped the pills on a clean sheet of lab paper on his laboratory bench after Melnikoff had examined other items, including scraping of ricin-positive powder from some of those items. The ricin test destroyed the pills, so it was not clear whether the ricin was inside the pills or on the surface.A federal prosecutor knew about the Melnikoff investigation and his history of errors but failed to disclose it to Olson’s attorneys. The AUSA also allowed the trial judge to be misled about the extent of the investigation. Instead of disclosing the damaging information, the AUSA characterized the investigation as purely administrative and that it was limited to an old complaint about DNA testing. The AUSA had the report, which contradicted these statements. The AUSA did not disclose the contents of the report to the defense or to the trial judge, who did not permit the defense to delve into the issue on cross-examination.In his dissent from the 9th Circuit’s decision not to rehear the case en banc, Judge Kozinski states:The panel's ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it's possible the defendant would've been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here.As for the AUSA, whom Kozinski does not identify by name, he stated: “Protecting the constitutional rights of the accused was just not very high on this prosecutor's list of priorities. The fact that a constitutional mandate elicits less diligence from a government lawyer than one's daily errands signifies a systemic problem: Some prosecutors don't care about Brady because courts don't make them care.” Judge Kozinski continued that judges “must send prosecutors a clear message. Betray Brady, give short shrift to Giglio, and you will lose your ill-gotten conviction.” Instead, Kozinski stated that the panel’s decision “invites prosecutors to avert their gaze from exculpatory evidence, secure in the belief that, if it turns up after the defendant has been convicted, judges will dismiss the Brady violation as immaterial.”As Judge Kozinski stated, Brady violations will continue to abound unless judges start to take them seriously. There is little evidence that ethics authorities or some prosecutors’ offices are doing much to address the issue.On the heels of the Olson decision, the New York Times had a lead editorial lamenting the structural problems?that have led to the “rampant” suppression of favorable evidence by prosecutors in criminal cases. “The Brady problem is in many ways structural. Prosecutors have the task of deciding when a piece of evidence would be helpful to the defense. But since it is their job to believe in the defendant’s guilt, they have little incentive to turn over, say, a single piece of exculpatory evidence when they are sitting on what they see as a mountain of evidence proving guilt. The lack of professional consequences for failing to disclose exculpatory evidence only makes the breach of duty more likely. Public Attention To Cases OF PROSECUTORIAL MISCONDUCTThe year preceding the Olson decision was marked by significantly increased public attention to instances of prosecutorial misconduct, including cases involving Brady and other discovery violations. A highly experienced U.S. Attorney in Florida, who handled the prosecution of more than 50 Columbian defendants for significant drug smuggling, was excoriated by the Court for intentionally withholding key evidence from the defense. The prosecutor was found to be a “serial offender” who has “problems staying within the bounds of the law.Other reports and in-depth articles chronicled hundreds of cases of failure to disclose key evidence, overcharging to obtain plea bargains, reliance on known faulty scientific evidence, and other egregious violations of ethics codes and law. These include the Human Rights Watch report “An Offer You Can’t Refuse;” Propublica, “Who Polices Prosecutors Who Abuse Their Authority? Usually Nobody;” Center for Prosecutorial Integrity: “An Epidemic of Prosecutorial Misconduct;” Huffington Post report “The Untouchables: America's Misbehaving Prosecutors, And the System That Protects Them.” These articles, detailing a wide range of abuses of prosecutorial authority in jurisdictions around the country, spotlight the need for systemic reform in discovery, and prosecutorial accountability. The articles mirror the longstanding critique that few prosecutors are ever subject to discipline for misconduct.Unique Consequence For Intentional Withholding Of Evidence: A Judge Goes To JailPublic attention about egregious prosecutorial misconduct was directed to Texas where, in the first case of its kind, a sitting state judge was sentenced to 10 days in jail for Intentionally withholding key evidence in a highly publicized homicide case. In 1987, Judge Ken Anderson was the prosecutor for Michael Morton who was indicted for the murder of his wife in their home. Despite the defense attorney’s repeatedly requests to Anderson for witness statements and other key evidence, the exculpatory evidence was never produced and Morton was convicted. He spent nearly 25 years in prison. He was innocent. In 2005, Morton, with the assistance of the Innocence Project, began legal proceedings to test the DNA in the case. The Williamson County district attorney, John Bradley,?fought the request for DNA testing for six years, based upon advice from Judge Anderson. Finally a judge ordered the DNA test, and after serving nearly 25 years, Morton was exonerated by DNA and freed from prison. His case was highlighted on CBS's?60 Minutes?on March 25, 2012. A Court of Inquiry ensued, an investigative process to examine the prosecutor’s conduct in the original trial. During the Court of Inquiry hearing, the lawyers questioned the lead sheriff’s investigator, an assistant district attorney who worked with Judge Anderson and the former prosecutor himself. District Judge Kelly Moore found that Judge Anderson committed serious acts of misconduct by concealing material evidence and found him guilty of criminal contempt of court for telling Morton’s trial judge in a 1987 pretrial hearing that he had no evidence favorable to Morton. Judge Anderson was disbarred and sentenced to 10 days in jail and 500 hours of community service. No other prosecutor in the country has faced such a consequence.Discovery ReformThe Ken Anderson fiasco in the Michael Morton case spurred discovery reform in Texas. During the week that marked the 50th Anniversary of the decision in Brady v. Maryland, Gov. Rick Perry signed into law Senate Bill 1611 — The Michael Morton Act. The new law codifies that prosecutors must make available to the defense, automatically upon request, all police offense reports and witness statements in their files. It changes discovery procedures and provides for disclosure of certain information, Louisiana also passed legislation to expand discovery, HB371, An Act Relative to Discovery Reform.? Called a “sea change” in Louisiana criminal cases, it provides for disclosure of certain information to the defense—far beyond the current practice in many of Louisiana’s parishes. One of its goals is to provide uniformity in discovery throughout the State.On the federal side, “The Fairness in Disclosure of Evidence Act of 2012” introduced by Senator Murkowski and other sponsors did not pass in 2012. It was reintroduced in 2013. It would require prosecutors to disclose all favorable information to the accused. (See State of Criminal Justice 2013 at 232-233). Discovery reform has been long championed by the ABA Criminal Justice Section.National Institute Of Justice Report On Preventing Wrongful ConvictionsIn 2013, the Office of Justice Programs at the National Institute of Justice released a report documenting its thorough study to determine causes and remedies for wrongful convictions. It found ten factors that lead to wrongful convictions:A younger defendantA criminal historyA weak prosecution caseProsecution withheld evidenceLying by a non-eyewitnessUnintentional witness misidentificationMisinterpreting forensic evidence at trialA weak defenseDefendant offered a family witnessA "punitive" state culture?It focused upon the effect of tunnel vision in the prosecution of cases and then recommended changes to practices in criminal justice. These include attention to defense practice, production of exculpatory evidence, eyewitness identification, false confessions, forensic error, police misconduct, weak prosecution evidence, and systemic failures. The report emphasized that the interactions of these factors as well as the individual factors themselves are to blame for systemic breakdowns leading to erroneous convictions. Comprehensive reform is essential in order to prevent future errors.DANZIGER BRIDGE SHOOTINGS—CONVICTION OF POLICE OFFICERS OVERTURNED FOR PROSECUTORIAL MISCONDUCTIt is a rare instance when prosecutorial misconduct results in a reversal of a conviction. A particularly unusual instance is that of U.S. district court judge Kurt Engelhard granting five former New Orleans police officers a new trial after their conviction violations in the highly publicized post-Katrina case. In these Danziger bridge shootings of unarmed civilians and the subsequent cover up to make their actions appear justified, the five officers were convicted of civil rights violations. Post trial, the defense complained that a high ranking New Orleans federal prosecutor has secretly posted inflammatory comments about the police officers on a web page of a local newspaper. The court asked the U.S. Attorney to investigate. After investigation, the attorney did not inform that court that others in the Justice Department, including herself, had blogged about the case. The DOJ then conducted another investigation and learned that other DOJ prosecutors blogged about the case as well. The information was provided to the Court.The judge, in a 129 page order, held that Justice Department lawyers had engaged in misconduct by posting online comments about the police officers during the pendency of the case. He did so without conducting a public hearing. Instead, he conducted a private inquiry and concluded that there was no need for further investigation to determine the full scope of the misconduct. The court, in a curious reliance upon Sheppard v. Maxwell, where a new trial was granted because of significantly prejudicial pretrial publicity, reversed the convictions because of the blogging of three prosecutors. The court never conducted an inquiry as to whether the postings had an effect upon the jurors that would justify the granting of a new trial. 50th ANNIVERSARY OF GIDEONThe ABA along with state and local bar associations, law schools throughout the country, defender organizations, constitutional law organizations and a myriad of high schools and colleges marked the 50th Anniversary of the historic right of counsel case. Among the conferences examining the unfulfilled promise of Gideon and the ongoing indigent defense crises throughout the country was the February 8, 2013 Ninth Annual Summit on Indigent Defense Improvement sponsored by the ABA Standing Committee on Legal Aid and Indigent Defendants in Chicago. Stephen Bright, president and senior counsel for the Southern Center for Human Rights, in his stirring keynote speech called the current indigent defense system an absolute disgrace to the legal profession, outlined the problems he has seen over the years, and called for systemic reform. The wealth of symposia around the country echoed the collective call for reform. Solutions were proposed including the innovate court rule in Washington State that limit defense lawyer caseloads, referral of cases to private counsel by defender organizations, motions seeking caseload relief, declaring “unavailability” to provide representation, increased use of and emphasis upon Standards for the Defense Function, holistic lawyering, client choice of counsel and prosecutorial participation in defense efforts to secure reasonable caseloads. The need to change the “meet em and plead em” system for misdemeanor defendants received significant attention. As Attorney General Eric Holder noted, in his many 2013 speeches on Gideon’s unfulfilled promise, the need for change to assure that our justice system can provide fundamental fairness for indigent defendants has never been more acute. He noted,“In short, America’s indigent defense systems exist in a state of crisis … Today – together – it’s time to declare, once again, that this is unacceptable – and unworthy of a legal system that stands as an example for all the world. It’s time to reclaim Gideon’s petition – and resolve to confront the obstacles facing indigent defense providers.? Most of all, it’s time to speak out – with one voice – to rally our peers and partners at every level of government and the private sector to this important cause.”Numerous organizations, including the ABA, lead the way toward reform of state and criminal justice systems for indigents. In the challenging time of extremely partisan politics and cutbacks in funding for various programs for the indigent, creativity, commitment and attention from all segments of the bar is key to any improvements in indigent defense. Federal Judge Finds Contract Public Defender Services Inadequate In Two Washington State CitiesAs 2013 came to a close, a federal district court judge, in Wilbur, et al. v. City of Mount Vernon, et al., found two cities in the state of Washington have cities have systematically violated the constitutional rights of indigent defendants to effective assistance of counsel by being "willfully blind" to the effects of their cost-cutting. The Washington State Chapter of the American Civil Liberties Union sued Mount Vernon and Burlington alleging that the contracted public defenders were overworked and were failing to provide adequate representation to their clients.After a two week trial, the judge found that the two lawyers who had previously had the contract for the cities’ public defender services averaged about 1,000 cases a year and spent less than an hour per case. They rarely investigated their clients’ cases, they did not meet with their clients in a confidential setting, and there was little evidence that they conducted factual investigations or performed legal analysis of the cases. Instead, the contract public defenders assumed the police had done their job correctly and presented their clients with plea bargains. The judge characterized representation as a “meet and plead” system of justice.The city defendants and the contract public defenders claimed that the results for indigent defendants were “outstanding” because the defendants received good plea bargains. The judge conceded that the pleas may look good in a vacuum, but that the pleas were not good when “the client is innocent, the charge is defective, or the plea would have disastrous consequences for his or her immigration status."The judge found that the cities failure to monitor the quality of defense services required injunctive relief consisting of an order for the cities to hire a part-time Public Defense Supervisor, using funds not already allocated for public defender services. The order requires the Public Defense Supervisor to ensure that the defenders provide adequate representation including contacting each new client in a confidential setting, advising the client of all of his or her rights, including the right to a jury trial, and performing the essential tasks of effective representation. The Public Defense Supervisor is also charged with: doing quarterly random file audits of each public defender to ensure that the necessary tasks are being performed and documented; quarterly meeting with each public defender to advise how their performance can be improved based on the file review; and collecting data on a quarterly basis showing the use of investigators and expert witnesses, the number of motions filed and the outcomes, the frequency of dismissals, the frequency of pleas to a lesser charge, and the number of trials (jury and bench) and the outcomes of the trials.opposition to Waivers Of Ineffective Assistance Of Counsel, Prosecutorial Misconduct, And Destruction Of Evidence Claims In Plea Agreements In August, 2013, the ABA House of Delegates passed a resolution opposing plea or sentencing agreements that waive a criminal defendant’s post-conviction claims addressing ineffective assistance of counsel, prosecutorial misconduct or destruction of evidence unless the waivers are based upon past instances of such conduct that are specifically identified in the plea or sentencing agreement or transcript of the proceedings. The resolution further provides that trial courts should ensure that a defendant has independent counsel before being permitted to waive post-conviction claims of ineffective assistance of counsel that are specifically identified in the plea or sentencing agreement or transcript of the proceedings. Finally, the ABA urges judges to reject plea and sentencing agreements that include waivers of a criminal defendant’s post-conviction claims of ineffective assistance of counsel, prosecutorial misconduct or destruction of evidence unless based upon past instances of such conduct that are specifically identified in the plea or sentencing agreement or transcript of the proceedings.The ABA resolution principally relies on a public policy view that fair process in the criminal justice system includes both conflict-free defense counsel and proper administration of justice by the prosecution. With guilty pleas accounting for nearly 95% of all criminal convictions, the ABA believes there needs to be a check on such pleas to ensure that defense attorneys act competently and prosecutors act fairly. The report supporting the resolution notes that defense counsel who has rendered deficient representation would have a conflict in advising a client to waive ineffective assistance of counsel claims because the lawyer would not be able to provide the client with objective advice. Additionally, a prosecutor requiring such a waiver would not know whether defense counsel has adequately investigated the case and provided effective representation, and would therefore not have a factual basis for the waiver. Similarly, the defendant and defense counsel are not in a position to know whether there has been prosecutorial misconduct or the destruction of evidence. The report acknowledges that the waivers are aimed at ensuring the finality of guilty pleas, but argues that goal should not trump the fair administration of justice.The resolution comes on the heels of three recent Supreme Court cases, Padilla v. Kentucky, Missouri v. Frye, and Lafler v. Cooper, in which the Court overturned convictions based upon ineffective assistance of counsel at the plea stage. In Padilla, the Court ruled that defense counsel was ineffective in failing to alert a client that deportation would follow from a plea, and in Frye defense counsel was ineffective in failing to communicate an earlier favorable plea offer to the defendant. In Cooper, the Court found that defense counsel’s erroneous understanding of the law that led to advice to turn down a favorable plea bargain could constitute ineffective assistance of counsel. Because these cases illustrate how ineffective assistance of counsel claims arising during plea bargaining could be viable, the increasing prosecutorial use of waivers of ineffective assistance of counsel claims has come into sharper focus.In September, 2013, ABA President James Silkenat sent a letter to Attorney General Eric Holder advising him of the resolution and expressing “grave concerns that recent filings by the Department of Justice in Kentucky take precisely the opposite position on this issue, asserting that defense counsel may ethically advise their clients to waive their claims for ineffective assistance against their own lawyers.” Silkenat was referring a pending action by the United States Attorneys for the Eastern and Western Districts of Kentucky seeking review of the Kentucky ethics opinion condemning the use of waivers of ineffective assistance of counsel claims. The Kentucky Supreme Court heard oral arguments on September 18, 2013. Prior to the ABA resolution, bar authorities in twelve states had addressed the ethics of guilty pleas involving waiver of ineffective assistance of counsel claims. Advisory ethics opinions in ten states (Alabama, Florida, Kentucky, Missouri, Nevada, North Carolina, Ohio, Tennessee, Vermont, and Virginia) disapprove of waivers of ineffective assistance of counsel claims, principally on the basis that defense counsel has a conflict of interest in advising a client on the waiver. An ethics opinion in Arizona determined that the ethics rules did not expressly prohibit such waivers, and an ethics opinion from Texas held that defense counsel must determine on a case-by-case basis whether there is a conflict of interest in advising the client on the waiver.In addition to the state advisory ethics opinions, the National Association of Criminal Defense Lawyers (NACDL) issued Ethics Advisory Committee Formal Opinion 12-02 in 2012, concluding that defense counsel presented with a waiver of ineffective assistance claims in a proposed plea agreement has a conflict of interest that has constitutional implications for the client. Like a majority of state ethics opinions, the NACDL opinion principally relies on defense counsel having a conflict of interest in advising a client on the waiver. The NACDL opinion, as well as some of the state ethics opinions, also reasons that a prosecutor who requires such waivers, which creates a conflict of interest for defense counsel, violate Model Rule of Professional Conduct, Rule 8.4, by knowingly inducing other lawyers to violate their ethical duties and by engaging in conduct prejudicial to the administration of justice. The Supreme Court has not considered whether the Constitution prohibits prosecutors from requiring the waiver of ineffective assistance claims and there is a split of authority on the issue in lower courts. Most of the cases addressing waiver of ineffective assistance of counsel claims do so in the context of a general waiver of the right to collaterally attack the conviction and sentence that the government required as part of a negotiated plea. When there is such a general waiver and the defendant later attempts to assert an ineffective assistance of counsel claim, the government argues that the waiver to collaterally attack the conviction and sentence precludes asserting an ineffective assistance of counsel claim. The majority view is that as long as the waiver of the right to collaterally attack a conviction and sentence is knowing and voluntary, the defendant is barred from bringing a claim of ineffective assistance of counsel. Other courts have refused to enforce a waiver of ineffective assistance of counsel claim when the defendant alleges that the ineffective representation led the defendant to agree to the guilty plea including the waiver.Rule 3.8(G) And (H) Prosecutorial Post-Conviction Duty In Wrongful Conviction Cases Update Arizona became the latest state to adopt ethics rules based on Model Rules 3.8(g) and (h), which address the prosecutor’s post-conviction duty upon learning of new evidence of a defendant’s innocence. Model Rule 3.8(g) requires the prosecutor to disclose to the court “new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted … .” Model Rule 3.8(h) requires a prosecutor to seek to remedy a conviction when “a prosecutor knows of clear and convincing evidence establishing that a defendant . . . was convicted of an offense that the defendant did not commit … .” The ABA adopted the Model Rule changes in February, 2008, but states have been slow to follow. One state, Idaho, adopted the amendments as written. Eight states (Arizona, Colorado, Delaware, New York, North Dakota, Tennessee, and Wisconsin) have adopted modified versions of these obligations. Eight more jurisdictions (Arkansas, California, District of Columbia, Hawaii, Nebraska, New Hampshire, Pennsylvania, and Vermont) are studying the changes. Maryland rejected Rule 3.8(h), and deferred consideration of Rule 3.8(g). North Carolina rejected both provisions. The Ethics, Gideon and Professionalism Committee of the ABA Criminal Justice Section continues to work with jurisdictions that are considering adoption of a version of Rule 3.8(g) and (h).New York Appellate Court Rules Queens Prosecutors’ Interview Program Violates The Law: People DunbarIn People v. Dunbar, a panel of New York State appellate judges unanimously held that a program of the Queen’s County District Attorney’s Office to interview defendants before they first appear in court violates the law. Under the program, a police officer and assistant district attorney interviewed defendants before their arraignment advising the accused that it “is your opportunity to tell us your story,” and that if the accused has an alibi or needs something investigated “[t]his will be your only opportunity to speak with us before you go to court on these charges.” Although the police officer would then read the defendants their Miranda rights and advised that they had the right to remain silent, the court ruled that the statements by the police and prosecutor before the Miranda warning made defendants think that this was their only opportunity to tell prosecutors their side of the story. The decision also suggests that the interview program was designed to elicit incriminating statements before indigent defendants were assigned counsel at their arraignments. The court rejected the district attorneys’ claim that the purpose of the interviews was to avoid wrongfully convicting the innocent.In ruling that the prosecutor’s conduct violated the defendant’s right against self-incrimination, the court overturned the conviction and ordered that statements from the interview be suppressed at the new trial. The court’s ruling did not address the issue of whether the interview practice violated any ethics rules for the prosecutor.Virginia Supreme Court Holds That Lawyer May Reveal Confidential Client Information That Is In The Public Record: Hunter v. Virginia State Bar And Illinois Suspends Defense Lawyer For Posting Video Of Client With Undercover Police On Facebook And Youtube: In Re Jesse Raymond GilsdorfJust how much free speech a lawyer has in using social media is unclear, as two recent opinions demonstrate. First, the Virginia Supreme Court ruled that a lawyer has a First Amendment right to reveal confidential client information on a blog without the client’s consent provided the information is publicly available. In a second case, Illinois disciplinary authorities rejected a defense lawyer’s First Amendment claims and suspended him for five months for posting a video on Facebook and YouTube, without his client’s informed consent, of his client interacting with undercover police at the time of an alleged drug transaction.The Virginia case, Hunter v. Virginia State Bar, involved a blog, “This Week in Richmond Criminal Defense,” maintained by Horace F. Hunter. Most of the posts involved cases in which Hunter received favorable results for clients. The Virginia Bar determined that the blog was advertising under the Virginia ethics rules, which substantially track the ABA Model Rules, and that the blog was misleading and failed to contain a required disclaimer that the blog was advertising. The Virginia Bar also held that Hunter had violated his confidentiality obligation under Rule 1.6 of the Virginia Rules of Professional Conduct for disseminating client confidences without their consent. Hunter argued that his blog should not be subject to advertising regulations because it was primarily political speech entitled to greater First Amendment protection rather than commercial speech, which receives a lower level of protection. The Virginia Supreme Court held (5-2) that the blog was commercial speech and subject to the bar regulation. In terms of the bar’s concern about the blog posts about favorable results being potentially misleading, the Court remanded the matter for appropriate disclaimers to be posted. The two dissenting justices found that the speech about the criminal justice system should be viewed as political speech. The U.S. Supreme Court denied Hunter’s request for certiorari in June, 2013.While there was some division concerning the commercial nature of the blog, the Court unanimously reversed the bar’s ruling that the blog violated Rule 1.6. The Court held that because the blog posts dealt with public information about cases that had ended, “privacy considerations must yield to First Amendment protections. In that respect, a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom.”In the Hunter decision, the Virginia Supreme Court has, in effect, created a public records or public knowledge exception to client confidentiality. Under the Court’s view, a lawyer may reveal embarrassing or other confidential information without a client’s consent provided it is available in the public record. Many legal ethicists fear that such an approach erodes the duty of loyalty lawyers owe current and former clients. The Court’s ruling is in direct contradiction with the rules of professional conduct that require a client’s consent before revealing confidential information.Taking a contrary view of whether a lawyer has a First Amendment right to share confidential client information with the public, the Illinois bar disciplinary review board, in In re Jesse Raymond Gilsdorf, affirmed a five month suspension of a defense lawyer, Jesse Raymond Gilsdorf, for posting a video of his client with undercover police at the time of an alleged drug transaction. The prosecution had given Gilsdorf the video as part of discovery, and Gilsdorf thought that the video showed the police planting drugs on his client. Gilsdorf thought posting the video, which he labeled “Cops and Task Force Planting Drugs,” would help his client. He was mistaken. When viewed on a larger screen, the video clearly showed his client purchasing drugs. Gilsdorf’s client claimed that she never consented to posting the video and that the publicity around the video had been “devastating” and adversely affected her. Gilsdorf claimed that he informed his client that he would post the video on the internet, but conceded that he did not discuss the possible negative ramifications with her.The disciplinary body found that he had violated Illinois Rule 1.6 because he did not have informed client consent and the disclosure of the video did not fit any exception under Rule 1.6. The decision stressed that client confidentiality is essential to the attorney-client relationship.The disciplinary body also found that posting the video violated Illinois Rule 3.6, which provides that a lawyer participating in litigation “shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and would pose a serious or imminent threat to the fairness of an adjudicative proceeding in the matter.” Comment 5 to Rule 3.6 explains “any opinion as to the guilt or innocence of a defendant or suspect in a criminal case” would pose an imminent or serious threat to the fairness of the proceeding. Because the postings were calculated to discredit the government’s case, the disciplinary body reasoned that his posting of the video had violated the rule.In reaching its decision, the disciplinary body rejected Gilsdorf’s argument that posting the video was protected under the First Amendment. The decision noted that Rule 3.6, as currently written, has never been found unconstitutional. As these two cases suggest, lawyers using social media have to be careful not to run afoul of several ethics rules, such as those related to advertising, client confidentiality, and trial publicity. In addition, Model Rule 8.2(a) prohibits a lawyer from making a false statement about the “qualifications or integrity” of a judge that is known to be false or “with reckless disregard as to its truth.” Some lawyers have been disciplined for failing to think twice before criticizing judges in their blogs or on Facebook. ................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download