Thoughts only partly relevant to California’s roll out for public comment of rules revisions.

One mistake.  What should be the price of one mistake?  To some extent, the answer to those questions for lawyers and lawyer discipline matters ought to be foreordained in two consecutive paragraphs of the Scope portion of the ABA Model Rules:

[19] ….the rules presuppose that whether or not discipline should be imposed for a violation … depend on all the circumstances, such as the willfulness and seriousness of the violation….

[20]  Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached.  In addition, violation of a Rule does not necessarily warrant any other nondisciplinary remedy …. Nevertheless, since the Rules do establish standards of conduct by lawyers, a lawyer’s violation of a Rule may be evidence of breach of the applicable standard of conduct.

Most folks who practice in any area where the ethics rules and substantive causes of action may intersect, such as legal malpractice matters, are quite familiar with their state’s version of the language above from [20] that attempts to navigate a thorny path between what the standard of care requires of a lawyer versus what it takes to commit an ethical violation.  The language I’ve excerpted in [19] is, I think, less commonly thought of but is highly important as it indicates an acknowledgement in the ethics rules themselves that conduct can both simultaneously amount to an ethical violation but be of such a low-level nature as to warrant no discipline whatsoever.

For what it is worth, I tend to think that the principle acknowledged in [19] is even more supportable by common sense than the path threaded by the language in [20] is.

An area where all of these concepts intertwine, and that serves as an easy -to-digest example, is an instance in which a lawyer makes a solitary mistake that can also be argued to violate an ethics rule.  Pick your favorite poison, whether it is the missing of a statute of limitations or other deadline for a client or . . . actually those two tend to be the most readily explainable and the most likely to involve facts that also generate litigation over the error.  Assuming that the affected client can satisfy the relevant jurisdiction’s case-within-a-case elements of proof, then the error will likely be actionable as a claim for legal malpractice.  Such an error can also be viewed through the lens of the ethics rules as being in violation of RPC 1.1 – not providing competent representation to the affected client — or RPC 1.3 — not acting with reasonable diligence and promptness for the client — or both.  Yet, even if viewed through that lens, it wouldn’t be unusual for such a matter to be addressed and remedied only through civil litigation or a settlement and not through the pursuit of any disciplinary proceedings.

Related to these thoughts, or at least explanatory of why they would result in the creation of a post, is the fact that California has now taken the long-awaited action of rolling out proposed revisions to its ethics rules that would replace its existing lawyer ethics rules with a set of rules that look more like the ABA Model Rules.  If you want to go read the entirety of the proposed rules, you can go get them at this link.  The public comment deadline on the California proposal is September 27, 2016.

There are a lot of interesting aspects of what California has proposed to adopt (as well as some of the rules they expressly have rejected adopting), and with any luck I’ll manage to dedicate at least one more post on the topic at a later time, but for today the point is to note that California as to proposed versions of Rule 1.1 and 1.3 offer up deviations from the ABA Model Rule language that are quite pertinent to the thought exercise about what should be the price of one mistake.

In both of proposed Rules 1.1 and 1.3, California would have the language of its rules read to rule out the idea that one instance of simple negligence could be an ethical violation of those rules at all.  As proposed, California’s 1.1(a) would read:

A lawyer shall not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence.

Likewise, proposed Rule 1.3(a) would read:

A lawyer shall not intentionally, recklessly, with gross negligence, or repeatedly fail to act with reasonable diligence in representing a client.

If you’re writing on a clean slate, that sure seems like a good way to address these issues.


“Sleeping,” sleeping, and Cronic sleeping.

Three recent cases involving lawyers alleged to have been sleeping during trial (actually only two about sleeping lawyers, one about a lawyer pretending to sleep) leave me feeling like there has to be the germ of a worthwhile point to be made in there somewhere, but after drafting and redrafting this post in spare moments the last couple of days, I’m not sure any longer that had a point to be made but here we are, and I’m pot committed, so …

Those of us who primarily handle civil litigation tend to think that the stakes we deal with are high, and our clients certainly think so and expect us to treat their cases in that fashion.  Those responsibilities can end up keeping lawyers up at night.  Yet, in criminal cases, there are typically more significant repercussions for the participants that can flow from a lawyer’s mistake.  Jail time, capital punishment, etc.

Falling asleep during trial would be universally recognized as a pretty significant error for an attorney make.  Yet, pretending to be asleep during trial could, of course, be a strategic ploy.  The three cases decided in 2016 so far that got me thinking on this topic manage to cover the spectrum of the “slumbering lawyer” problem.

Back on Groundhog Day of this year, a prosecutor in Maine was chided by that state’s highest court for conduct described as “sophomoric, unprofessional and a poor reflection on the prosecutor’s office.”  Specifically, the conduct was pretending to sleep during the defense’s closing argument in a murder trial.  The court determined, however, that neither that conduct, nor other conduct by the prosecutor that the court found problematic, was enough to find prejudicial error to the defendant sufficient to justify reversing the homicide conviction in the case.  The stage craft of pretending to sleep could, as with other kinds of stagecraft, be viewed as amounting to a violation of RPC 4.4(a) on the part of the prosecutor.  Maine’s RPC 4.4(a), like the ABA Model Rule, prohibits a lawyer representing a client from “us[ing] means that have no substantial purpose other than to embarrass, delay, or burden a third person….”

Moving on from fake sleeping, but also back in February 2016, the 11th Circuit affirmed a lower district court’s ruling that a criminal defendant was not prejudiced by his slumbering counsel because the lawyer alleged to have fallen asleep only did so during a non-critical stage of the trial.  Specifically, defense counsel fell asleep while a recorded interview of an accomplice – spanning 71 pages in transcript length – was played to the jury.  The 11th Circuit agreed with the district court’s ruling that the standard for ineffective assistance under Strickland v. Washington and not U.S. v. Cronic was correct and that the trial court did not unreasonably apply Strickland.

The 11th Circuit opinion presents a very dry read including very little detail (even the lawyer involved never has his name mentioned).  From the opinion though, it appears the only actual proof mentioned of an instance of sleeping was the lawyer’s own statement made after cross-examining the witness and in response to the prosecutor asking for a break while defense counsel was cross-examining the law enforcement officer who had authenticated the recording:  “I need to take a break; I fell asleep a couple of times.”  Whether a sleeping lawyer is viewed as providing incompetent representation in violation of RPC 1.1, or acting in a manner not sufficiently diligent under RPC 1.3, or simply not in a position to effectively communicate with the client during trial under RPC 1.4, one would think that, if the lapse into unconsciousness could actually be proven, that the potential would exist for a finding of a disciplinary violation.  Yet, I would be very surprised if discipline ever came to pass.

In contrast, just last week, the Fourth Circuit reversed the conviction and thirty-year sentence of a defendant whose counsel also fell asleep during trial.  The Fourth Circuit case, as with the 11th Circuit case, involved a Section 2255 proceeding, but the difference in this situation being fairly described as one of degree and of the resulting legal standard to be applied.  Everyone who testified during the evidentiary hearing proceedings — except for the lawyer in question — testified to having witnessed the lawyer asleep at least once during trial.  The lawyer’s client after first alleging his lawyer fell asleep twice, eventually testified that his lawyer had slept for as many as 10 minutes a stretch some 10 to 20 times during the trial.  Counsel for other co-defendants each testified that despite now having a direct view of him at all times, they had noticed at least one bout of snoozing.  Perhaps, most damningly, a juror testified that the lawyer was asleep for at least a half an hour almost every day of trial and that the sleeping lawyer had been a topic of discussion during deliberations.  The lawyer, in question, in testimony not lost on the appellate court, said he couldn’t recall sleeping during the trial.

The Fourth Circuit, in what was a first impression matter for it, joined several other circuits in indicating that the Cronic standard — permitting the presumption of prejudice — and not Strickland applies when a lawyer is asleep for a substantial part of the trial.  The Fourth Circuit, however, also explained in a footnote that its ruling should not be treated as meaning only “the most egregious instances of slumber” will serve to trigger the need for the Cronic standard, indicating that being asleep for a critical part of the trial alone could also be sufficient.  Thus, the same fact pattern in the 11th Circuit matter might suffice in the Fourth Circuit if the nap had come not during the paying of an audiotape of a repetitive witness statement but during a critical time in the trial.

The same set of ethics rules mentioned above as to the one-time-napper are, of course, also implicated by repeated siestas during trial, but the odds of such a proceeding being pursued and discipline imposed inherently should be more likely as to the lawyer in the Fourth Circuit case.  Given the pretty broad conspiracy that would be necessary for the lawyer to prove his public explanation that this was a political dirty trick mounted against him because he had run for public office, such a case would likely be difficult to defend.

[P.S. While his other response, equating the allegations against him as an insult to the federal judge who presided over trial, the logistics of the courtroom described in the Fourth Circuit opinion that could explain why the trial court wouldn’t necessarily have seen the sleeping no matter how frequent and the Fourth Circuit’s own pretty strong rebuke of the district judge’s discounting of the witness testimony — “[T]he district court utterly failed to consider the likely possibility that each was saw [the lawyer] asleep or nodding off on different occasions.  Had the court done so, it would have reached the conclusion that [the lawyer] could have been asleep on at least six or seven different occasions.” — that approach isn’t likely as elegant a way of defending himself as it might seem at first glance.]


A little something to be thankful for

If you’re a lawyer, then many days you may find yourself either complaining that you are too busy or that you aren’t busy enough.  Rare is the time for lawyers (in my experience) when they think their workload lands in a “just right” kind of spot.  There actually can be such a thing as too busy.  In fact, the ethics rules in Tennessee (and elsewhere) even recognize this in a statement relegated to the Comment to RPC 1.3 (Diligence).    Comment [2] to RPC 1.3 of the ABA Model Rules (Tennessee’s provision is identical) reads:  “A lawyer’s work load must be controlled so that each matter can be handled competently.”

Unless you happen to work as a public defender though, you are very unlikely to end up with a workload that truly jeopardizes your ability to handle each of your cases competently.  For most lawyers who get to that place, they have no one to blame but themselves.  If you are a public defender, there’s a really good chance you are in that boat through no fault of your own.

Two news items this week help to drive this point home.  The first comes out of Maryland where a public defender’s overwhelming workload was actually cited by the trial court when ordering the retrial of a murder case that had ended in a conviction.  The defendant’s attorney, a public defender, overstepped his bounds by refusing to let his own client testify in her defense — a decision that RPC 1.2(a) clearly bestows unequivocally on the client.  The RPC 1.2(a) ethical transgression, and not a caseload at a level violating RPC 1.3,  was the substantive justification for the reversal, but the court went out of its way to attempt to make clear that it didn’t consider the error indicative of the type of attorney the public defender was.  Rather, the judge characterized the error as a side effect to having been handling 88 felony cases over a six month period, explaining in the ruling that the p.d. in question was “a very good attorney,” but “was simply overwhelmed by the number of cases that he had.”

The second new item comes out of New Orleans, where the Orleans Parish Public Defenders Office has filed a motion – indicated to be the first of several – with a criminal court judge to request that the office not be assigned any new cases.  The motion explains that the combination of excessive caseloads, budget cuts, hiring freezes, and staff shortages have all led to a situation where the members of the office aren’t able to provide “constitutional, effective representation.”  Contrary to how he views the world, the motion does not blame the former defensive coordinator of the New Orleans Saints in any fashion.  The Times-Picayune article on the story reports that the public defenders’ office estimates that it presently represents 85% of all felony criminal defendants in the Parish.  Local media also reports that the first day of a multiple day hearing on the motion has begun and the founder of The Innocence Project is expected to testify next week.

So, if you can’t think of anything else to be thankful for this week, be thankful that you’re not a public defender.  And, if you’re reading this, you likely aren’t.  Because you don’t have the time to spare.