Legal Ethics Forum

Have we passed "peak spam"?

Email haunts today's lawyer, and news that we may have passed peak spam is welcome news.

Yagman gets three years

Story here.  One can acknowledge his flaws and also admire his tenacity.  He didn't go quietly, quoting Kafka to the judge:

"A cage went in search of a bird.  I'm the bird, and they got me."

"CUNY Law Bounces Back"

Editorial here, about how CUNY Law's more rigorous standards dramatically increased their bar passage rate from 50% to 83%.

Confidentiality and the Dead Client

Lawyer’s Revelation of Confession May Ruin Him

Staples Hughes’ career is in jeopardy for having disclosed the confession of a client, now dead, that he alone killed a couple

Titan Barksdale, Staff Writer, News & Observer

Lawyer Staples Hughes was trying to do the right thing when he disclosed information that could help prove a man innocent of murder.  Now it may cost him his law license.  Hughes, the state’s appellate defender, disclosed earlier this year that his client, a co-defendant in the murder, had confessed 20 years earlier that he alone killed Roland and Lisa Matthews in Fayetteville.

After his client, Jerry Cashwell, died, Hughes spoke up. The confession, coupled with challenges to how bullet evidence was analyzed, could get a new trial for Lee Wayne Hunt, who was convicted of the slayings 21 years ago and sentenced to life in prison.

It also puts Hughes in a fight for his career.  During a hearing to seek a new trial for Hunt, a Cumberland County Superior Court judge said he would file a complaint with the N.C. State Bar over Hughes’ testimony about the confession. As Cashwell’s attorney, Hughes was bound by attorney-client privilege to keep the confession secret. But Hughes believed that his duty to Cashwell died with his client.

Judge Jack Thompson rejected Hughes’ testimony, and Hunt’s bid for freedom. Hughes was later notified that a bar grievance had been filed against him.  “It crossed my mind a thousand times that somebody might report me to the bar,” Hughes said. “I’m sure the judge thought he was doing what he thought was right, and I thought I was doing what was right under the circumstances. It was a sobering moment.”

Hughes said he has filed a response to the complaint, but it is unclear when the bar will make a decision. The N.C. Supreme Court could determine whether Hughes is right or wrong when Hunt’s attorneys ask the court to review the murder case.  Meanwhile, the issue has exposed a thorny ethical dilemma that cuts to the heart of a lawyer’s mission -- serving justice.

Hunt had been a notorious drug dealer in Fayetteville but maintained from the start that he had not murdered the Matthewses.  In March 1984, the couple were found shot and stabbed to death in their home on a rural road in Cumberland County. About one year later, Hunt, Cashwell and Kenneth Wayne West were arrested and charged with the murders.

Hughes interviewed Cashwell at the Cumberland jail in the weeks after the arrest. That’s when Cashwell confessed that he was the sole killer. Hughes, a young public defender assigned to the case, was stunned, but he couldn’t tell anyone.  “All of a sudden, time just stands still in a way,” Hughes said. “I don’t know whether ethical behavior is always the same as being a moral hero. Maybe if I were some moral hero, I would have told. But it was very clear-cut to me that the only ethical course was that it was not in my client’s interest to reveal it, and of course I did not.”

Cashwell was tried first, convicted of the double murder and sentenced to two life terms.  Hunt was tried later and convicted in October 1986. He also received two life sentences.  The only physical evidence connecting Hunt to the crime was a bullet lead analysis conducted by the FBI. It appeared to show that crime-scene bullets matched those in a box that Hunt owned. Scientists now say the bullet lead analysis that the prosecutor relied on is misleading and should not be used as evidence.  The remaining evidence against him was from Hunt’s co-defendants: drug dealers who had agreed to testify against Hunt in exchange for immunity or reduced prison time for their roles in the crime.  “It was awful, because I know what’s going on in the courtroom down the hall from my office is a bunch of fabrications,” Hughes said, recalling his reaction to Hunt’s trial years ago.

Hunt was 16 years into his prison sentence when Cashwell committed suicide in prison in 2002.  With his client dead, Hughes said, he immediately thought of revealing Cashwell’s secret. But he decided to wait, knowing that the Supreme Court was considering a crucial ruling on an unrelated case in Wake County that explored whether a dead person’s confidentiality trumped the search for justice.

In 2003, the Supreme Court said that a judge can force a lawyer to reveal confidential statements from a dead client. The decision helped crack the arsenic poisoning case of Eric Miller, leading to his wife’s arrest and conviction.  Bolstered by that decision, Hughes eventually decided he would reveal his dead client’s confession. In 2004, Hughes called Rich Rosen, who is known for handling cases for prisoners who insist they are wrongly convicted, and said he had evidence that could help prove Hunt’s innocence.  Hughes drove from his home in Chatham County to Rosen’s office at UNC-Chapel Hill, where Rosen is a law professor. After brief pleasantries, Hughes spilled the secret.

“What he was saying was so obviously true,” Rosen said. “I contacted Hunt and told him that I wanted to come see him and I was willing to take on the case.”  Hughes later returned to Rosen’s office to sign a sworn statement. He was now a witness for Hunt’s defense team, and the investigation into Hunt’s case took a new turn.

Hunt’s case landed back in court when Rosen filed a motion to get Hunt a new trial based on the faulty bullet evidence and Hughes’ statement of Cashwell’s confession. A hearing was held earlier this year in Cumberland County, before Judge Jack Thompson. Thompson declined to comment about the case.

As Hughes began to testify about the confession, Thompson gave him a blunt warning.  Be aware, Thompson said, that he planned to file a complaint with the bar against Hughes for testifying.  “I said, ‘Yes, I understand,’ and I think he was just telling me what he was going to do,” Hughes said.

Thompson rejected the testimony. Hughes told what happened anyway, to establish a record for an appeal.  The N.C. Appeals Court refused to consider hearing the case, leaving Hunt with one rarely successful option -- a request to the N.C. Supreme Court to review his case.

Meanwhile, Hughes received a letter from the bar asking for a response to an allegation of a violation of ethics.

Hughes’ case represents the larger ethical dilemma many lawyers face, said Jim Coleman, a professor at Duke University Law School. There is no clear right or wrong, he said.  “On one hand, you have the attorney-client privilege and the value it has because it protects the client,” Coleman said. “And on the other hand, you have the question about justice, and the fact that you have information that can prevent the miscarriage of justice.”

Thompson’s warning to Hughes is a professional duty that all lawyers are bound to do, Coleman said.  “What the judge is trying to do is prevent him from making the disclosure and tell him as a lawyer in North Carolina, he will report it to the bar,” Coleman said. “Lawyers in North Carolina have an obligation to report alleged misconduct by other lawyers.”

Bar rules contain an exception that a lawyer can reveal a client’s confidential information to prevent “reasonably certain death or bodily harm.”  “He’s not killed, but for all practical purposes, he’s lost his life and he’s lost his liberty,” Coleman said of Hunt.

Hughes said he doesn’t know Hunt and has only spoken with the inmate once, years ago outside a magistrate’s office in Fayetteville. But he hopes he risked his career so that one day, he can meet Hunt again -- as a free man.

“It’s not that I’m not apprehensive about the possible consequences, because I am,” Hughes said. “But when you think about that up against the fact that this guy is innocent and has been locked up, it puts a different light on that.”

Beware the BK Trustees

One of the dicier legal matters is representing a large company on the brink of insolvency.  When the company goes under, the Trustee's job is to claw back money and, often, to sue the professionals.  Story here.

Yagman sentencing postponed

We've been getting lots of hits about the criminal sentencing of Stephen Yagman, the LA lawyer famous for bringing civil rights actions.  It seems that the judge will take more evidence and decide later.

Biglaw news: (1) Do politics and firm life mix? (2) Firm hires "Social Responsibility Director"

Mixing law firm life and political activism can be tricky.  Story here.     . . . .     Pillsbury, following a European trend, has hired a Director of Social Responsibility, who will oversee firm initiatives in the areas of dirversity, pro bono, charitable giving, environmental sustainabilty, and other issues.  (The full story is reg req'd, sadly.)

"It has to be that kind of chair," Cassini said. "We won't settle for anything less."

I remember those.  (via The Onion)  In Silicon Valley we tend toward these.

Advocacy outside the courthouse: Bonds's lawyer comes out swinging

Barry Bonds's lawyer, Michael Rains, who has an impressive if non-traditional resume, took some nice cuts at the government's case in recent interviews.  Reading between the lines, it seems Rains has already picked his defense and needs to get it out there in the press.  He's alleged an unspecified ethical violation by the prosecutors.  I will follow up once we learn his theory on that.  Some critics have suggested that Rains's tough talk will backfire, because it may harden the prosecutors' stance and force Bonds to fight the matter all the way through trial.  I can't discout that 100%, but what were the odds that the prosecutors were going to offer Bonds a generous settlement anyway? 

In the mean time, here are some choice quotes from Rains, as provided in these two articles:

"[The DOJ] doesn't know if waterboarding is torture and can't tell the difference between prosecution and persecution."

"My initial reaction was that they cherry-picked four statements occupying a combined total of two or three minutes of testimony out of what amounted to four hours of testimony in December of 2003."

"Barry got up on the stand and did his best to answer questions and to answer them truthfully."  "He told them like it is."

"They have spent millions of dollars and turned (chief Balco investigator) Jeff Novitzy loose in an unsupervised fashion for half a decade now."  "They need to say they got something for their efforts. Why not take a flier now?"

"Everybody has an opinion about Barry. A lot of people love and respect him and a lot of people dislike him. He understands that."  "Whether you like him or dislike him, the way the federal government has proceeded in this case is going to be a very, very sad commentary on the enormous power of the government to ruin people's lives and to scar their reputation for no good reason."

Advocacy outside the courthouse is sometimes frowned upon,  but sometimes is what the client needs.  It's seems that Bonds is going to come out fighting.

Lawyer's reaction to Bonds's indictment . . .

I was a little surprised by the reaction of Bonds's lawyer:

"I'm surprised," said John Burris, one of Bonds' attorneys, "but there's been an effort to get Barry for a long time. I'm curious what evidence they have now they didn't have before."

He says he's "curious" about what evidence they have now?  Well, we all are, aren't we?

Why didn't the Burris just trot out some version of, "We are shocked at the unfair, untrue indictments and look forward to complete exoneration"?