Lowering the Bar

Weapons Conviction Thrown Out Due to Counsel's Napping, Magazine Reading

On June 15, a New York judge set aside a conviction on the grounds that the defendant's attorney had provided ineffective assistance of counsel.

For future reference, your lawyer may be providing ineffective assistance if he or she is sleeping or reading health-and-fitness magazines during trial.

Edward Trujillo, Julio Irizarry, and Jonathan Castillo were on trial for weapons charges after an incident in which one of them was (for some reason) shooting a nine-millimeter pistol into the air.  (I suppose the problem with this is that the bullets have to land somewhere.)  Officers found other weapons in the defendants' SUV, and defendants were all indicted on weapons charges.

Irizarry was granted a mistrial based on an evidentiary issue.  Trujillo wasn't so lucky, but he did have another argument.  Under Strickland v. Washington, a criminal defendant's Sixth Amendment rights may be violated if the quality of representation was "below an objective standard of reasonableness."  Trujillo argued this had happened because, among other things, his counsel fell asleep at least three times during trial, read magazines while witnesses were testifying, and "gave a bizarre opening statement that caused the jurors to laugh."  With regret, the judge agreed.

The judge wrote that he had in fact seen Trujillo's counsel "apparently sleeping at the counsel table" at least once.  Saying he was aware that counsel had a "pre-existing medical condition" (he did not identify the condition, or the attorney), the judge noted he had called all counsel up for a sidebar to see if counsel was feeling well and to give him "every opportunity to revive himself, if necessary."  Presumably, counsel said he would try to stay awake, but failed.

The judge also semi-confirmed the magazine reading:  "While the court cannot corroborate defendant Trujillo's claim that counsel was reading a health and fitness magazine during the course of the trial, the court did observe a magazine fall to the floor during the trial proceedings and observed defendant Trujillo's counsel pick up the magazine."  (This would be called "circumstantial evidence" that counsel was reading said magazine.)

Finally, it appears that the opening statement was indeed bizarre, and did indeed cause amusement:

Counsel for the defendant Trujillo did, indeed, give a bizarre opening statement. The beginning of counsel's opening statement was so off topic and irrelevant that this court was compelled to stop counsel and direct that he address what he intended to prove during the course of the trial. The jury was, in fact, laughing during counsel's opening statement and such laughter at a member of the bar created an unprofessional atmosphere. . . . [D]uring this trial, I found myself very uncomfortable whenever defendant Trujillo's counsel addressed either a witness or the jury. It was impossible to predict what he was going to say.

The judge was clearly reluctant to criticize counsel, likely because of the undefined "pre-existing condition."  That is understandable.  Although it would be more understandable if I could think of a pre-existing condition that can result in an irresistible urge to flip through a magazine while the other side's witnesses are testifying.  (I guess I should not be too critical since I may need to use this someday.)

Anyway, while this probably made the trial much more entertaining than most, the court held that Trujillo had not gotten "meaningful representation," and set aside the verdict.

Mr. Castillo, who was apparently unfortunate enough to have a competent attorney, will be sentenced shortly.

Link: People v. Irizarry, 2009 NY Slip Op. 51258(U) (Supreme Ct. Kings County, June 15, 2009)
Link: ABA Journal

Lawyer Charged With Billing During Sex

As I think I have mentioned before, surprisingly few jurisdictions actually have rules making it unethical for an attorney to have sex with his or her client.  It is never a good idea (okay, almost never), but often is not technically a violation of ethical rules.

Billing a client for work not actually done, however, is unethical, and combining these activities by billing for time spent actually having sex with the client is definitely frowned upon.  There is no question about that.

The Times Online reported last month that a woman in London had sued her barrister for allegedly billing her for time during which she had reason to know he was not giving her legal advice.  Ms. Anal Sheikh, about whose name I have nothing at all to say, except that this report did not come out on April 1, and also that it seems more likely to be the name of a movie about the incident than the name of a plaintiff, sued her barrister on the grounds that he had billed her inappropriately.  She had hired Marc Beaumont under an arrangement that was based on a fixed fee of 120,000 pounds, but also provided for additional hourly billing in the event of "unforeseen and urgent work."  I think she concedes that he did engage in unforeseen and urgent work, but presumably argues that it has to be law-related to qualify for additional payment.

Mr. Beaumont denies the claim and says he never charged Ms. Sheikh for time spent "socialising."  In fact, he sought to minimize the impression that he spent much time socialising at all.  "I am a boring person," he said.  "I spend 95 percent of my life dealing with legal matters."  I assume he means his waking life, unless he also bills in his sleep.

The Times article points out that under the Code of Conduct of the Bar of England and Wales, "a barrister is not specifically prohibited from charging for sex, but he must not do anything which could 'lead to any inference that his independence may be compromised.'"  Specifically, that Code provision says a barrister may not "do anything (for example accept a present) in such circumstances as may lead to" any such inference.  Code of Conduct Rule 307(b).  That sort of provision is in most ethical codes and you could well run afoul of it if you decide to accept or give the kind of "present" alleged in this case.

But if this is going to set a precedent for applying ethical rules to this kind of conduct, there is more that British men may need to be worried about.  Rule 701 requires a barrister to act "diligently and with reasonable competence," and to refuse "any task which (i) he knows or ought to know he is not competent to handle; (ii) he does not have adequate time and opportunity to prepare for or perform; or (iii) he cannot discharge within the time requested or otherwise within a reasonable time . . . ."  That just seems like too much pressure.

Link: Times Online
Link: Ye Code of Conduct for Ye Bar of England & Wales

Well, It Sounded Like "Rodent" to Me

From the archives, here's an appellate ruling on a claim of error by the defendant, Mr. Roden: "Appellant asserts that the prosecutor referred to him as 'Mr. Rodent' on at least three occasions.  This claim is unsupported by the record."

This was the fifth claim of error asserted on appeal.  Here's a tip: if your first four arguments haven't worked, throwing out something like this as number five is not going to save the day.

Cite: State v. Roden, 380 N.W.2d 669 (S.D. 1986).

Attorney Who Bartered With Stripper Client is Suspended

In October, Illinois attorney Scott Erwin will begin a 15-month suspension that was imposed by the state bar for alleged misconduct involving a client.  A female client who worked as an exotic dancer charged that Erwin had touched her inappropriately during one of the nude dances she had performed in his office.  It seems that the two had worked out an arrangement by which the woman would dance for Erwin "as a way to cut down on the legal fees."

Apparently, this barter arrangement worked well until sometime in late 2002.  By then, the woman's legal bill had reached $7,000, which the report says reflected a credit of $534 for dance-related services.  The woman then told authorities that Erwin had touched her, which he denied.  An investigation followed.  Although criminal charges were never brought against Erwin, that did not prevent the state bar commission from getting involved, and after its own investigation, it recommended that he be suspended.

Now, while this kind of relationship, if you can call it that, with a client is a terrible idea, there is a good argument that the arrangement itself doesn't violate any ethical rules.  In California, for example, as in many jurisdictions, even a sexual relationship with a client is not strictly against the rules unless the lawyer has intimidated or coerced the client.  See Cal. R. Prof. Conduct 3-120.  (I notice that it is unethical to continue representing the client "if such sexual relations cause the member to perform legal services incompetently," and so I would urge attorney readers in California to avoid engaging in both activities at once.)

And, in fact, the commission does not seem to have suspended Erwin for the bartering itself, since it cited only to conflict-of-interest rules and the general rules against "misconduct" (Illinois Rules 1.7 and 8.4 respectively).  Instead, it seems to have found it likely that he did commit the sexual battery the woman charged him with, and then did not tell the truth about it.  As for why the bar commission felt able to reach that result when the grand jury did not, it's difficult to tell.

It is also possible, however, that the commission felt that getting lap dances from a client is "conduct prejudicial to the administration of justice" (a rule it also cited), and so I would urge attorney readers in Illinois to avoid engaging in this activity at all.

Link: Chicago Tribune.com
Link: Illinois Attorney Registration & Disciplinary Commission

Court Affirms Verdict Against Lawyer for Affair With Client's Wife

Somewhere in the top half of the long list of Bad Ideas is this one: have an affair with a client.  Much closer to the top of that list is this one: have an affair with a client who is still married to another client, and do that in one of the few states that still let people sue for "alienation of affection."

The Mississippi Supreme Court ruled last week that Ronald Pierce does indeed have to pay the $1.5 million verdict against him in a lawsuit filed by the guy whose affections he alienated.  Pierce had represented the man and his wife in a medical-malpractice case, a representation that ended not very long after the husband (and his private investigator) learned of the affair in October 2000.  The couple had separated the month before, but were still married.

That made Pierce liable for "alienation of affection," a tort that has been abolished in most states but still exists in a few, including North Carolina and (obviously) Mississippi.  According to this description of the tort as interpreted in North Carolina, it is not exactly a cause of action for adultery, but rather for wrongful acts that destroyed (alienated) the affection between parties to a marriage (reportedly, in-laws have also been defendants in such lawsuits, which might be something to keep in mind).  Adultery itself (meaning the physical act) is a different tort, which is referred to in North Carolina, hilariously, as "criminal conversation."  Mississippi may not recognize that tort, since I assume it would have been included otherwise.

In his deposition, Pierce did not quite admit to criminally conversing with the wife -- he took the Fifth -- but since she then admitted it in her deposition, it really didn't matter.  Given the evidence, most of Pierce's arguments were on fairly narrow legal issues.  For example, he argued that the statute of limitations barred the emotional-distress claim, an argument that failed because Pierce had "flaunt[ed] his involvement" in front of the husband, which made this a continuing tort and tolled the statute.  Thus, Pierce's apparent choice to be a jerk about the whole thing meant he lost a shot at knocking out a $1 million portion of the judgment.  Jerks should take note of this ruling.

Equally unsuccessful was Pierce's argument on the breach-of-contract claim.  Unsurprisingly, the husband argued that sleeping with his wife was not what he had hired Pierce to do, and more specifically that doing so was a breach of Pierce's fiduciary duty.  Seems reasonable.  But Pierce argued that this was essentially a claim for legal malpractice, which under state law meant the husband should have offered expert testimony on the standard of care.  Well, sometimes, the court pointed out, it doesn't take an expert:

Clearly, based on the facts of this case, [plaintiff] did not need an expert to testify as to the standard of care owed by an attorney to his client. Ordinary jurors possess the requisite knowledge and lay expertise to determine if an adulterous affair between an attorney and his client’s wife is a breach of a duty owed by an attorney to his client. Expert testimony would not lend guidance under this circumstance.

I guess we'll just have to wonder what kind of expert testimony would have been presented on that issue.

Link: ABA Journal

WHEREAS, You Acted Like a Jerk In Court

WHEREAS, on the dates set out below, in the presence of Judge Thomas Mountjoy of the Court of Greene County, Missouri, attorney Carlos Dupree Romious, aka D. Carlos Romious, did do the following stupid things, among others:

On June 16, 2008, during the hearing of pre-trial motions in the jury trial of the above-styled case, Carlos Dupree Romious, aka D. Carlos Romious, did loudly and rudely assert that the court proceeding was a "joke" and a "travesty" . . . [and] did loudly and rudely accuse the Court of "corrupting and stinking up the case" . . . .

On June 17, 2008, during the hearing of pre-trial motions in the jury trial of the above-styled case, Carlos Dupree Romious, aka D. Carlos Romious, did loudly and rudely accuse the Court of "being anything other than impartial, justiciable [sic] and anything but competent" . . . [and took] a copy of a pleading served upon him in open court . . . , wadded it up and threw it on the floor some distance from counsel table and thereafter walked to it and used his shoe to grind it into the floor . . . [and] did indicate to Court his refusal to appear in court [when ordered, saying] "don't hold your breath" . . . .

On June 18, 2008, during the hearing of pre-trial motions in the jury trial of the above-styled case, Carlos Dupree Romious, aka D. Carlos Romious, did loudly and rudely ask the Court, "are you a pedophile?"

All of which said behavior was willfully and intentionally committed, contemptuous, insolent and directly tended to interrupt the proceedings of the Court and the respect due to its authority . . . Carlos Dupree Romious, aka D. Carlos Romious, is guilty beyond a reasonable doubt of direct criminal contempt.

AND WHEREAS Carlos Dupree Romious, aka D. Carlos Romious, did not show up on June 19, 2008, to defend his client in the fraud trial scheduled that day,

ALTHOUGH that was not necessarily his fault, as he was scheduled to appear in Kansas federal court that day to answer a charge of assaulting a court security officer there,

BUT he did do the other stuff in the presence of the Court,

THEREFORE, Carlos Dupree Romious, aka D. Carlos Romious, was sentenced to 120 days in jail, and subjected to being written about in various legal-humor blogs and whatnot, until such time as he should cease to do acts including but not limited to the foregoing.

SO ORDERED.

Link: WSJ Law Blog
Link: Associated Press

Lexis/Nexis Used to Screen Out DOJ Candidates on Political Grounds

Greg Mitchell of Legal Pad has had some time to scan the 140-page report on the DOJ investigation into whether the White House illegally used political criteria to disqualify candidates for career positions at Justice.  (It's not against the law to do this for positions classified as political appointments, but it is against the law as to positions to be filled by career civil servants.  5 U.S.C. §§ 2301 & 2302.)

The report's shocking conclusion: it did.

While not much is funny about that, investigators did find this amusing Lexis/Nexis search string that was used to dig into candidates' backgrounds.  Some cynics claim this string shows that political criteria were being considered, but you decide:

[first name of a candidate] and pre/2 [last name of a candidate] w/7 bush or gore or republican! or democrat! or charg! or accus! or criticiz! or blam! or defend! or iran contra or clinton or spotted owl or florida recount or sex! or controvers! or racis! or fraud! or investigat! or bankrupt! or layoff! or downsiz! or PNTR or NAFTA or outsourc! or indict! or enron or kerry or iraq or wmd! or arrest! or intox! or fired or sex! or racis! or intox! or slur! or arrest! or fired or controvers! or abortion! or gay! or homosexual! or gun! or firearm!

Potentially, candidates who turned out to have, let's say, criticized the use of WMD during the Florida recount or who took a gay spotted owl to get an abortion could be located and screened out this way.

Former White House Liaison Jan Williams told investigators she had never used that Lexis/Nexis search string for AG appointments, so it was awkward when they found her email saying "This is the lexis nexis search string that I use for AG appointments."  She sent that email to her replacement, Monica Goodling, who also broke the law by doing the same kinds of things, the report said.  Goodling also asked job-interview questions that one might interpret as political, such as "Why are you a Republican?"  Again, okay for political appointments, but for career positions, illegal.

Among the candidates Goodling screened out this way was someone with extensive counterterrorism experience who she disqualified because his wife was a Democrat.  The guy who did get the job had no experience, but was said to be a "good American."  So that's nice.

Link: Legal Pad (Cal Law)

"Lawyer Who Wouldn't Stop Talking" Talks His Way to Suspension

Some of you probably think the phrase "lawyer who wouldn't stop talking" is redundant, but it isn't quite.  There is a time for talking, and a time for not talking; and one good time for not talking is just after a judge has ordered you to stop talking or be sent to jail.

Herbert Moncier's failure to follow this rule not only got him jail time, it led to a disciplinary opinion by the Eastern District of Tennessee.  How did that come out?  Well, I don't want to ruin the suspense, but here are two clues: (1) the opinion is 80 pages long, and (2) it cites cases dating back to 1812.

According to the opinion, Moncier's troubles began during a 2006 hearing in which Moncier

• "repeatedly interrupted or spoke over the presiding judge,"
• "accused the prosecution of engaging in a conspiracy to prevent him from trying cases due to his success in past trials,"
• threatened to "sit there and remain mute," apparently a threat to refuse to defend his client,
• "contradict[ed] the court's admonishment," and finally
• "disobeyed a direct order from the court that he stop interrupting and not say another word."

After that last one, Moncier was stuck chatting with the bailiff on his way to a cell.

He was later convicted of criminal contempt of court.  The recent opinion was issued in a separate disciplinary action before the court's chief judge, who ordered Moncier in January to show cause why he should not be suspended from practicing law.  Here's a tip: you should respond to orders like that, rather than filing a motion of your own.  Moncier in fact filed four, with a success rate of approximately zero percent.  His response, when he finally filed one, was described by the court as lacking "a single challenge to any of the substantive findings or recommendations . . . ."  The arguments were also described in the following ways:

• "inadequately explained, legally unsupported, and factually barren,"
• "often evasive, revisionist, and self-serving,"
• "defies credibility,"
• "shifting, post-hoc rationalizations,"
• "exasperating,"
• "incredibly disappointing,"
• "specious,"
• "completely baseless," and
• making "incredible assertion[s]."

At that point the courthouse had to be evacuated after the court's thesaurus burst into flame.

Of the sparkling array of defenses raised, the crown jewels were two expert-witness affidavits.  The first, by an ethics expert, was undermined slightly by a failure to apply the right ethics rules.  But the second one, my friends, the second was provided by a "linguistics expert."  This person read the transcript of the hearing and testified that, linguistically, she didn't see a problem:

[B]ased upon her reading of the transcript of the November 2006 hearing [said the court,] it "reflects consensual dialog, including debate and argument, between Mr. Moncier and Judge Greer" . . . . She goes on to say she finds "nothing in the transcript that supports an opinion that Mr. Moncier intended or demonstrated disrespect to Judge Greer or that Judge Greer intended or demonstrated disrespect to Mr. Moncier" (id.).

In other words, Moncier hired a linguistics expert to read the transcript and testify that, in her expert opinion, there was no contempt.  At this point, the loss of the thesaurus made itself felt, or else the court was just tired of bothering.  It wrote that this opinion was "so devoid of belief [sic] and such a departure from reality that to call it incredible is to be charitable."

Was there ever an apology?  Sort of:  "I deeply regret and apologize," Moncier wrote, "that my actions were considered by District Judge Greer to be a violation of his orders and that now my actions have been considered by [another judge] to be violations of the Rules of Professional Conduct."  Here's another time to stop talking: when you are about to deliver one of these non-apologetic apologies that are now so common, in which you apologize for the fact that somebody else got upset by what you did.

The court suspended Moncier for seven years, although he can apply for early reinstatement after three.  So, mark your calendars for 2011.  That ought to go well.

Link: ABA Journal
Link: In re Moncier (E.D. Tenn.)

"Bulletproof" Attorney Jailed After "Obscene Gesture" in Court

Okay, if you had to vote right now, would you vote to sanction this guy?

"For what?" -- does it matter?

Okay, what if I told you he is an attorney -- wait, I'm not finished -- who is actually registered with the Texas State Bar under the nickname "Bulletproof"?

You are one tough customer.  Okay, how about this:  What if I also told you that during a recent court appearance he made "simulated masturbatory gestures" in response to an objection by opposing counsel "while making eye contact with the Court"?

Now how much would you make him pay?

This is Adam "Bulletproof" Reposa, who spent the night in jail a couple of weeks ago after gesturing in the aforementioned manner in the presence of Travis County Judge Jan Breland.  (Judge Breland wrote at the bottom of the order, "No bond without my approval," but approved a $1,000 bond the next morning.)  Reposa was representing a client on a DWI charge at the time.  He apparently made the gesture while looking at the judge and simultaneously rolling his eyes, in the internationally recognized symbol for "I strongly disagree with what my opponent is saying and in fact find it so lacking in merit that I think you will agree it is unworthy of response."

According to a reporter for KEYE-TV who tried to reach Reposa for comment, "the person answering said she was instructed by Reposa to tell the media a vulgarity, which won't be printed here."

You can actually find Mr. Reposa's contact information by searching for the term "Bulletproof" on the Texas State Bar's website.

Link: KEYEtv.com (Austin)
Link: Austin-American Statesman

Florida Attorney Sanctioned for Insulting Court with "Children's Picture Book"

On Friday, March 7, Bonnie Goldstein of Slate.com wrote about a furious battle going on between a Florida attorney on one side and the Florida Bar and Florida Supreme Court on the other.

Any bets on how this one comes out?

The attorney is Jack Thompson, who has a long history of trying to police violent and sexual content in the media.  You can reasonably take the position that at least some examples of that are a problem, but Thompson's thinking has evolved way beyond reasonable positions.

According to the Wikipedia article on Thompson, which is heavily documented (132 footnotes), Thompson has been involved in decency crusades since the 1980s, pushing for boycotts of, among others, 2 Live Crew, N.W.A., and Madonna.  Eventually, he took on video games, claiming for example that vibrating PlayStation 2 controllers are designed to encourage violence because the "pleasurable buzz [delivered] with each kill" is a form of behavior-modification conditioning.

Last April, he claimed the Virginia Tech killer had been driven to kill, and trained to do so, by playing the game "Counter-Strike."  "[T]his is not rocket science," Thompson said.  "When a kid who has never killed anyone in his life goes on a rampage . . . he's a video gamer."  That does seem pretty conclusive, although the official report on the Virginia Tech shooting found that none of the games the shooter played "were war games or had violent themes," although he did play "Sonic the Hedgehog."

There is no evidence that any rocket scientists contributed to that report, however.

Thompson has also taken on the Florida Bar, saying that ethics complaints against him are frivolous.  Some of the complaints involve attacks Thompson has made on other attorneys and judges in Florida, and that's what got Thompson in trouble recently.  In what he said was an effort to prove that an opposing attorney's website contains links to pornographic images, Thompson filed pleadings in federal court that included the same images he said he was complaining about.  The court was not amused.

In February, the Florida Supreme Court issued an order to show cause why Thompson should not be sanctioned.  That was prompted by a pleading Thompson filed that he described as a "children's picture book for adults," which he said was necessary because the court couldn't seem to understand his arguments without pictures.  The pictures included swastikas, cartoon squirrels, a judge with the head of a donkey, and an album cover used to argue that the validity of Thompson's position "should now be so clear with this filing that even could see it."

On March 20 -- after Thompson filed a response that called the order "bizarre" and "idiotic" and asking the court to "make [his] day" -- the court sanctioned him.  As a result, Thompson cannot file any more pleadings unless they are "signed by a member in good standing of The Florida Bar other than himself."  Further insulting pleadings, which are almost certainly forthcoming, may lead to contempt charges.

Link: Slate Magazine
Link: Wikipedia article on Thompson