Double Standards in Legal Ethics

When reading my $500 per year Wisconsin Lawyer Magazine—which appears to be free to everyone who does not pay bar dues—I saw an article about an out-of-state lawyer discipline case.  The lawyer was publicly censured, fined, and got stuck with “the cost of the proceeding” for some advertising claims that were confusing, probably misleading, and, in some cases, false.  Here’s an example: “the lawyer stated that attorneys in the firm focused their practice in one area of law, but the firm’s web page listed 27 distinct practice areas.”  Obviously, the word “focused” could have different meanings to different people.  For example, some attorneys in the firm may spend half of their time in a single area, thus qualifying as a “focus,” while still practicing in multiple other areas of law for the other half of their work.  Alternatively, maybe some of the firm’s lawyers do “focus” exclusively on one area, while other members don’t focus and instead practice multiple areas of law.  So why was the lawyer disciplined? 

MU leaves the Big East!

Congratulations to Marquette, Seton Hall, Georgetown, Villanova, St. John's, Providence, and DePaul -- the Big East's basketball only schools -- for finally leaving the conference! (Knightly, left, is thrilled with the news.)  For these basketball schools, it puts an end to the ship-jumping and conference realignment forced on them by football schools chasing an extra buck of television revenue while destroying their historical, regional rivalries in the process.  I've been hoping for this break-away for years, and wrote about it more than a year ago.  Hopefully this group of seven will pick up three more schools from the region to form a nice, ten-team league with each team playing every other team twice -- once at home and once on the road.  These are exciting times for fans of the seven schools.  It's like March Madness, but in December.            

Wisconsin’s costly paternalism

Tyler H., a thirteen-year-old Wisconsin kid, was having a really bad day.  First, his brother didn’t like the way Tyler was chewing his food, so he “hit Tyler in the back.”  Then, when the inevitable wrestling match ensued, the boys’ mother got into the act and hit Tyler in “his mouth.”  After getting struck by his mother, Tyler did not react physically; instead, he swore at his mother and smartly “left the house.”  But then Tyler’s mother decided to exacerbate her disastrous parenting by calling the police—that’s right: the police.  And once these government agents were invited into what should have been a family matter, things got even worse for young Tyler.

Wisconsin Supreme Court muddies the waters in plea bargaining

In State v. Frey, the defendant agreed to plead to certain charges and the state agreed to dismiss certain charges outright, rather than read them in, at sentencing.  This distinction between dismissing charges outright and dismissing and reading them in has always been a critical one.  In several cases courts have routinely recognized the distinction.  Even the official plea form that the defendant is required to fill out and sign warns him that the judge may consider read-in charges when imposing sentence.  Of course, in light of this warning, the only rational conclusion is that charges dismissed and not read in, i.e., dismissed outright or simply dismissed, cannot be considered by the judge when imposing sentence.  This makes sense for a couple of reasons.

The criminal defense lawyer: three jobs in one

The defense lawyer often has to do three jobs at once: the prosecutor’s job, the judge’s job, and his own job.  That is, when the prosecutor does something illegal at trial—whether intentionally or “accidentally”—the defense lawyer had better jump on it, bring it to the judge’s attention immediately and in exactly the preferred manner, and then ask for the proper remedy at precisely the right time.  If the overwhelmed defense lawyer missteps in any respect, and if the defendant loses at trial and appeals, the appellate court will blame the defense lawyer for not freezing time and correcting the prosecutor’s cheating (or ineptitude) at the time of trial.  But the law doesn’t just require that the defense lawyer keep one eye on the prosecutor while also doing his own job; the law requires that the defense lawyer do the judge’s job as well.

Legal fees: You get what you pay for?

From a defense lawyer’s standpoint, the simplest cases to defend are non-domestic fights.  You know, the good old-fashioned fisticuffs, often taking place in a bar or related setting, and often involving a self-defense claim.  The reason they’re “simple” cases is that they don’t involve complex pretrial or trial issues.  Normally, you simply have some eyewitnesses who testify as to what happened, and each side cross-examines them about their biases, motives, ability to accurately recount what they saw (or what they think they saw), etc.  Then, each side argues about the strength of the evidence, burden of proof, etc.  Unlike other cases, these self-defense cases usually don’t involve lengthy motions to suppress evidence, or time-consuming preparation for expert witnesses, or witness recantations to muddy-up the waters, or complicated “other acts” motions, or complex hearsay issues that can confuse the judge.  In other words, the classic battery case with a self-defense claim is the ideal case for a second-year law student’s trial advocacy course, or even for the new attorney fresh out of law school.  So how did one attorney get $100,000-plus in fees to defend a client in a four-day battery trial stemming from a simple throw-down at a trendy New York bar?

Dear appellate court judges: prosecutors are laughing at you

When reading my weekly cases, I just saw that yet another prosecutorial misconduct decision was handed down by the appellate court.  Reading the decision reminded me how prosecutors are allowed tremendous leeway to blatantly violate the basic rules of trial practice—for example, by hiding evidence of innocence from the defendant or making improper comments to the jury—in order to win convictions.  And when defendants appeal their convictions, the appellate courts repeatedly decide that it’s not their job to deter prosecutorial misconduct, so they routinely tell the defendant: “yes, the prosecutor cheated, but too bad, your conviction stands.”  Now, that’s a big problem in itself, and I’ve written about it in the Seton Hall Law Review and the Marquette Law School Faculty Blog.  But it’s what happens next that really has our nation’s prosecutors holding their sides in laughter.   

Law School Reform: More Practical Legal Education? Not Yet.

The blogs are buzzing these days about law schools.  It’s now widely believed that even after the recent freefall in law school applicants, and the corresponding (but less severe) decline in law school enrollment across the country, we’re still producing more than two lawyers for every available law job.  (And, many argue that the law degree isn’t terribly helpful—and possibly even harmful—in an unemployed lawyer’s attempt to land a non-legal job.)  But my main problem with law schools isn’t that they turn out way too many lawyers.  Instead, as a practicing lawyer, I’m still peeved about the way that law schools turn out lawyers (and future judges) who can’t understand basic legal principles.

Law School Management 101 (or how to deal with your school’s looming fiscal crisis)

If memory serves, when I started law school about 16 years ago tuition was about $13k per year, which made me very hesitant to enroll in the first place.  And by the time I graduated, tuition was fast approaching $20k per year.  I remember wondering how much longer most law schools could continue to exist.  In other words, who would want to go to law school at these prices?  It turns out that I was more price-sensitive than most, and my concern was actually about 10 years premature.  Much to my amazement, law school applications and enrollments kept climbing over the next decade, even as tuition continued to skyrocket well above the rate of inflation.

When is a bribe not a bribe?

I love the 1995 case U.S. v. Boyd.  After sitting through a four month trial that ended in a guilty verdict, the trial judge overturned the conviction and granted the defendant a new trial.  Why?  The prosecutor's star witnesses against the defendant were actually incarcerated themselves.  That, in itself, is rarely a problem.  Instead, what bothered the trial judge was that the prosecutors were bribing their prisoner-witnesses leading up to and during the defendant’s trial.  The gifts and favors included providing the prisoner-witnesses with access to illegal drugs, access to visitors with whom they had sexual relations, prosecutor-funded birthday parties, multiple items of clothing, and even phone sex with the prosecutor’s paralegals.  In fact, the litany of gifts and favors was literally so amazing that it makes the case worth reading in its entirety—something that can rarely be said of a judicial decision.