Prosecutors Need to Create a Culture of Compliance

A recently released opinion by the ABA Standing Committee on Ethics and Professional Responsibility (Formal Opinion 467) sets out a directive for prosecutors in both managerial and supervisory positions to establish procedures that ensure lawyer and nonlawyer compliance with ABA Model Rules of Professional Conduct. The Opinion discusses scenarios and obligations during those scenarios, which aim to guide the desired behavior from attorneys in key supervisory or managerial positions. The suggestions posited in the Opinion are dictated by relative size and structure of the office. Additionally, the Opinion suggests that attorneys incentivize, encourage, and reward compliance to lawyer and nonlawyer subordinates. Emphasizing ethics compliance in the hiring process will also help with issues that arise down the road.

Managers and supervisors should make ethics compliance part of the emphasized and encouraged culture of the office. An office should have a known and adhered-to system, which is enhanced through appropriate discipline, education, and sanctions.

For the opinion click here.

It’s High Time for a Change

Several states now allow the use and sale of medical or recreational marijuana; however, the drug remains illegal under federal law.  As more states move toward legalizing marijuana, the legal ethics rules governing an attorney’s permissible representation of a client are being questioned.

For example, in Nevada, lawyers are requesting ethics advice and a modification in the rules because Rule 1.2 of the Nevada Rules of Professional Conduct prevents lawyers from advising clients on conduct they know to be criminal.  Thus, Nevada and other marijuana-friendly states face pressure to amend their ethics rules to address the changing legal landscape.  King’s County, Washington, which includes the city of Seattle, has a new rule designed to better guide its attorneys: “A lawyer shall not be in violation of these rules or subject to discipline for engaging in conduct, or for counseling or assisting a client to engage in conduct, that by virtue of a specific provision of Washington state law and implementing regulations is either (a) permitted, or (b) within an affirmative defense to prosecution under state criminal law, solely because that same conduct, standing alone, may violate federal law.

It remains to be seen as to how this clash between state and federal law will impact lawyers who are requested to advise on the burgeoning marijuana business in various states throughout the country.

To read about Nevada’s current posture click here.

Lawyer Disciplined for Posting Video of Client on YouTube

On December 11, 2013, an Illinois Review Board for Attormey Registration and Disciplinary Commissions upheld a five-month suspension against a criminal defense lawyer who posted a police video depicting his client’s alleged role in criminal activity on YouTube and on Facebook. The lawyer received the video from the prosecutor prior to the preliminary hearing.

The lawyer allegedly informed the client that the lawyer was going to “pre-jury” the video to get opinions as to whether the video revealed entrapment. The client testified that she did not give permission for the lawyer to post the video on YouTube and Facebook. Although there was conflicting testimony at the disciplinary hearing, the Illinois Review Board concluded that the lawyer did not properly consult with his client, did not discuss with his client the possible repercussions of the posting of the video on the Internet, and therefore did not receive informed consent. The Illinois Board found that there is nothing unconstitutional about Rule 1.6’s confidentiality requirement and further that there was no adverse publicity about the client that might have justified releasing the video in accordance with the pretrial publicity provisions of Rule 3.6.
For the complete analysis, read the Illinois opinion here.

Sophistication in Place of Signatures: Advance Waiver of Conflicts

The Supreme Court of New York, Appellate Division, affirmed the Supreme Court’s denial of J.C. Penney’s motion to disqualify plaintiffs’ counsel, Jones Day, due to a conflict of interest. The court held that an unsigned advanced conflict waiver from 2008 was enforceable through performance. Prior to representing the retail giant, Jones Day presented J.C. Penney with a detailed letter to be signed indicating that the firm would only represent J.C. Penney so long as the firm could still represent other large national retailers in disputes directly adverse to J.C. Penney, though not in substantially related matters. The engagement letter functioned as an advanced waiver of any conflict of interest issues with future clients.

Despite the fact that J.C. Penney never returned a signed copy of the waiver, the Court allowed the representation to move forward based on J.C. Penney’s continued use of Jones Day. Thereafter, Jones Day was handling J.C. Penney in Asia’s trademark portfolio when other litigation ensued over J.C. Penney’s Martha Stewart line in the United States against competitor Macy’s. Jones Day undertook representation of Macy’s in the action. J.C. Penney then filed a motion to disqualify Jones Day from representing Macy’s due to the conflict of interest arising from the parties’ directly adverse interests

Accordingly, the Supreme Court denied the motion, which the Appellate Division subsequently affirmed, stating that J.C. Penney’s continued acquiescence to the firm’s representation constituted an acceptance of the advanced waiver of conflicts through performance and precluded the firm from being conflicted out of the litigation.

Interestingly, the court decided this case under New York’s former ethics rules known as the Code of Professional Conduct. The court made this decision because the Code was the body of rules that were in place in New York when the March 2008 retainer agreement was created. New York did not adopt the Model Rules of Professional Conduct until December 2008. Though both the current Rules of Professional Conduct and the former Code provide for advanced waiver of conflicts, the Code stated that such waivers “need not be in writing if informed consent can be found under the circumstances.” Because of J.C. Penney’s sophistication, the Court readily found such informed consent under the circumstances. However, it is unclear whether the Court would issue the same ruling if the Rules of Professional Conduct were applied.

Click here to read the article and here to read the case.