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Posts Tagged ‘lawyer discipline’

Note: These days accountability is in short supply, it always being easier to blame the other guy when something bad happens. This is especially the case when talking about those wielding unalloyed political, financial, legislative, prosecutorial, religious or as the following lays out law enforcement power.

Standing in the way of holding the powerful accountable is the doctrine of “qualified immunity, which, “balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan.

Lawyers, too, can find themselves without remedy when confronted by a version of the doctrine in the disciplinary process. Lawyers accused of ethical violations but subsequently exonerated of wrongdoing hit their own roadblocks to relief via versions of this qualified immunity doctrine or more commonly its big sister, absolute immunity. Many if not all jurisdictions deem all participants in the lawyer disciplinary process “absolutely immune from civil liability.” Rare indeed is the jurisdiction carving out an exception to a bar prosecutor’s claimed immunity.

As borne out by those supporting a challenge to the doctrine that may hopefully be heard next term by the U.S. Supreme Court, qualified immunity has over time simply become a free pass. The principle that ‘no one is above the law’ is treated like a long-past fancy. It’s nigh time, then, for the nation’s highest court to revisit and restore that principle. The following is reblogged verbatim from Cato at Liberty, The Cato Institute under Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International Public License.

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Leading Scholars and Most Diverse Amici Ever Assembled File Briefs Challenging Qualified Immunity

I’ve previously blogged about Allah v. Milling, a case in which a pretrial detainee was kept in extreme solitary confinement for nearly seven months, for no legitimate reason, and subsequently brought a civil-rights lawsuit against the prison officials responsible. Although every single judge in Mr. Allah’s case agreed that these defendants violated his constitutional rights, a split panel of the Second Circuit said they could not be held liable, all because there wasn’t any prior case addressing the “particular practice” used by this prison. Cato filed an amicus brief in support of Mr. Allah’s cert petition, which explicitly asks the Supreme Court to reconsider qualified immunity—a judge-made doctrine, at odds with the text and history of Section 1983, which regularly allows public officials to escape accountability for this kind of unlawful misconduct.

I also blogged about how, on June 11th, the Supreme Court called for a response to the cert petition, indicating that the Court has at least some interest in the case. The call for a response also triggered 30 days for additional amicus briefs, and over the last month, Cato has been coordinating the drafting and filing of two such briefs—one on behalf of a group of leading qualified immunity scholars (detailing the many recent academic criticisms of the doctrine), and the other on behalf of an incredibly broad range of fifteen public interest and advocacy groups concerned with civil rights and police accountability.

The interest-group brief is especially noteworthy because it is, to my knowledge, the single most ideologically and professionally diverse amicus brief ever filed in the Supreme Court. The signatories include, for example, the ACLU, the Institute for Justice, the Second Amendment Foundation, Americans for Prosperity (the Koch brothers’ primary advocacy group), the American Association for Justice (formerly the Association of Trial Lawyers of America), the Law Enforcement Action Partnership (composed of current and former law-enforcement professionals), the Alliance Defending Freedom (a religious-liberties advocacy group), and the National Association of Criminal Defense Lawyers. The brief’s “Statement of Interest” section, after identifying and describing all of the individual signatories, concludes as follows:

The above-named amici reflect the growing cross-ideological consensus that this Court’s qualified immunity doctrine under 42 U.S.C. § 1983 misunderstands that statute and its common-law backdrop, denies justice to victims of egregious constitutional violations, and fails to provide accountability for official wrongdoing. This unworkable doctrine has diminished the public’s trust in government institutions, and it is time for this Court to revisit qualified immunity. Amici respectfully request that the Court grant certiorari and restore Section 1983’s key role in ensuring that no one remains above the law.

The primary theme of this brief is that our nation is in the midst of a major accountability crisis. The widespread availability of cell phones has led to large-scale recording, sharing, and viewing of instances of egregious police misconduct, yet more often than not that misconduct goes unpunished. Unsurprisingly, public trust in law enforcement has fallen to record lows. Qualified immunity exacerbates this crisis, because it regularly denies justice to victims whose constitutional rights are violated, and thus reinforces the sad truth that law enforcement officers are rarely held accountable, either criminally or civilly.

Moreover, qualified immunity not only hurts the direct victims of misconduct, but law enforcement professionals as well. Policing is dangerous, difficult work, and officers—most of whom do try to uphold their constitutional obligations—increasingly report that they cannot effectively carry out their responsibilities without the trust of their communities. Surveys of police officers thus show strong support for increased transparency and accountability, especially by holding wrongdoing officers more accountable. Yet continued adherence to qualified immunity ensures that this worthy goal will never be reached.

The Supreme Court is in recess now, and the defendants’ response brief won’t be due until September 10th, so we’re going to have to wait until early October to find out if the Supreme Court will take the case. But the Court, the legal community, and the public at large should now be aware that criminal defense lawyers, trial lawyers, public-interest lawyers of every ideological stripe, criminal-justice reform groups, free-market & limited-government advocates, and law enforcement professionals themselves all agree on at least one thing—qualified immunity is a blight on our legal system, and the time has come to cast off this pernicious, counter-productive doctrine.

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Photo Credit: Hiding, by Kristin Schmit, at Flickr Creative Commons Attribution License.
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First there was Aaron Schlossberg that New York City lawyer whose rant against restaurant Spanish-speakers went viral. In the video taken of Schlossberg’s exchange, he said he’d be calling Immigration and Customs Enforcement (ICE) to have the Spanish-speaking workers “kicked out of my country.”

He also complained to a restaurant manager, “it’s America” and “staff should be speaking English.” What the hey güey? “SEE IT: White man threatens to call ICE on Spanish-speaking workers at Midtown Fresh Kitchen.”

But like I told someone who asked — no, I don’t think he’s going to be disbarred for his off-the-wall outburst. Loyola Law Professor Jessica Levinson has it right — mostly.

NPS map symbol fishing.svgI say “mostly” because last time I looked, New York is one of a handful of remaining jurisdictions with a so-called ethical ‘catch-all’ rule. It’s Rule 8.4: Misconduct that says “A lawyer or law firm shall not: (h) engage in any other conduct that adversely reflects on the lawyer’s fitness as a lawyer.” In other words, if the discipline folks really want to hook you on something, there’s always the catch-all rule to do it.

You could ride a freight train through that vague tunnel of overbroad ambiguity.

https://upload.wikimedia.org/wikipedia/commons/thumb/4/4e/Bakersfield%2C_California._On_the_Freights._Helping_a_newcomer_hop_a_freight_-_NARA_-_532069.tif/lossy-page1-229px-Bakersfield%2C_California._On_the_Freights._Helping_a_newcomer_hop_a_freight_-_NARA_-_532069.tif.jpg

Which means that the lawyer disciplinary folks in the Empire State could still parse out punishment — short of disbarment — based on the elasticity of that rule, especially when two NYC pols have filed bar complaints against angry Aaron. Politically speaking, I won’t be surprised if they come up with a wrist-slap of some kind. But beyond all that, it’s not like public opinion isn’t already pillorying the guy. SeeLawyer’s firm gets bad Yelp reviews after he is named as man in video ranting about Spanish-speakers.”

Just the same, fearful of its potential for abuse some commentators have called for eliminating the ‘catch-all,’ See “New York’s Catch-All Rule: Is It Needed? Part 1.”

What the güey in ELA?

I despise racism whenever and wherever it rears its ugly poisonous head. As a proud melanic Hispanic (aka Latino) and a native Spanish speaker who grew up in East Los Angeles (ELA), I’ve seen my share both then and now. I take comfort, however, in knowing that since ELA remains 98% Latino that a guy like Schlossberg wouldn’t get away with his kind of rant at, for example, an eatery like what was once my local King Taco — not at least without potentially unpleasant consequences.

https://s3-media2.fl.yelpcdn.com/bphoto/DyY2VEusbHoS0_nXqsEssg/o.jpg

Even so, I’m for free speech — even his despicable kind. Moreover, the last thing I’d want to see are the self-styled lords of lawyer discipline deciding permissible and impermissible speech. There are plenty of state and federal laws already on point dealing with discrimination without unleashing the agenda-driven prosecutorial paragons of partiality from the state bar.

But now there’s news of more. A story out of small-burg Montana talks about how last Wednesday a Border Patrol Officer stopped and detained two Spanish-speaking U.S. Citizen convenience store patrons for speaking Spanish. The New York Times reports, They Spoke Spanish in a Montana Store. Then a Border Agent Asked for Their IDs.”

So has it really come to this? Of course — it has. Again, what the hey güey?

But racial profiling? As the Times reports, “It had nothing to do with that,” the officer, who identified himself as Agent O’Neal, responded in the cellphone video. “It’s the fact that it has to do with you guys speaking Spanish in the store in a state where it’s predominantly English-speaking.”

And yet I ponder what will become of those immortal words of stand-up comic and fellow ELA homeboy Paul Rodriguez from his comedy album — “You’re in America now, speak Spanish”?

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Credits: NPS map symbol fishing, National Park Service fishing symbol, Wikimedia Commons, public domain; Bakersfield, California. On the Freights. Helping a newcomer hop a freight, Partridge, Rondal, 1917-, Photographer (NARA record: 8464464, Wikimedia Commons, public domain; Boyle Heights King Taco, by Mimi C. at Yelp, fair use commentary; Paul Rodriguez album cover, fair use commentary.

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https://cdn.morguefile.com/imageData/public/files/h/hyperlux/preview/fldr_2005_05_29/file000516740961.jpgAfter reading about the death of 42-year old prominent, “outspoken” Las Vegas lawyer Jacob Hafter this past week, I thought again of how tough and even unforgiving the legal establishment can be. According to news reports, the Clark County, Nevada coroner’s office ruled Hafter’s death a suicide. See “Suspended Las Vegas lawyer Jacob Hafter dies at age 42.”

Last November, the Nevada Supreme Court handed down a six-month suspension order of Hafter “partly for Facebook comments accusing a judge of religious bias.” For more details concerning his disciplinary case see “Nevada Supreme Court suspends Las Vegas attorney Jacob Hafter.”

Hafter’s sudden unexpected and tragic death has roiled members of the Las Vegas legal community, some going as far as faulting the Nevada Bar for allegedly doing little to help the lawyers it disciplines.

Ironically, in May 2017 the Nevada Supreme Court approved a state bar petition mandating an additional annual hour of continuing legal education in substance abuse, addictive disorders and/or mental health. Also see “Overwrought and over exaggerated but no matter. Over prescribed CLE is always the regulators’ fix.”

Adding to the disquietude caused by Hafter’s death was unrelated news tonight about how Broward County, Florida Circuit Court Judge Merrillee Ehrlich “brutally berate a woman in a wheelchair. The woman died. The judge has quit.” The video is unpleasant to watch, underscoring again how hard the system can be, especially on non-lawyers, too. The Miami Herald story can be found here.

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https://upload.wikimedia.org/wikipedia/commons/thumb/b/b5/Yogi2.JPG/246px-Yogi2.JPGAnticipating Arizona’s 66% solar eclipse tomorrow — sans ISO-approved glasses — I was thinking about Yogi Berra’s, “You can observe a lot by watching.”

Unfortunately, I won’t be outside watching. In lieu of eye damage1 or a pinhole camera, instead I’ll observe the path of totality on TV or online.

A week out, I was wrong to believe I could readily pick up a pair of eclipse glasses at my local retailer. What was I thinking? The early bird gets a worm and solar eclipse glasses.

No matter. It’s not like I haven’t seen my share of Hollywood solar eclipses. Apocalypto remains a fave.

 

Known unknowns.

 

While not rising to the level of a Yogi Berra malapropism, this past week also found me reflecting on another almost ‘Yogi-ism.’ It was former Defense Secretary Don Rumsfeld’s memorable obviousness:

“There are known knowns. These are things we know that we know. There are known unknowns. That is to say, there are things that we know we don’t know. But there are also unknown unknowns. There are things we don’t know we don’t know.”

I thought of Rumsfeld when courtesy of our friendly state bar’s press office, I learned that a young lawyer had just been disbarred. He’d been practicing all of 6 years. What a lot of toil and treasure wasted I thought — hardly time to get an ROI.

I never met the lawyer. But I do know he was active on social media, seemingly the consummate modern-day lawyer marketer. He even officed in his own name-identified building.

There’s no point mentioning his name or discussing his case’s merits. My sole reason in raising the disbarment is that it highlights another of life’s most important truths — besides not staring at the sun. Lawyer, baker or candlestick maker, most of us don’t know as much as we think we do.

It’s an unfortunate truth that tends to be ignored, especially among some of the legal profession’s newest practitioners. Faced with paying down horrendous tuition loans, circumspection becomes an unaffordable luxury. And having survived law school and passed the bar exam, too many lawyers suffer from illusory superiority.

About the same time I read about the disbarment, the article, “Common Mistakes When Starting a Law Practice” arrived in my inbox. Disbarment wasn’t listed as one of the “common mistakes.” Overspending, incompetency and several others were. But since suspension and disbarment are always possible consequences of going it alone, mentioning those sanctions was perhaps deemed superfluous.

However, what I did think deserved mentioning but wasn’t was Rumsfeld’s succinct knowledge-gap admonition, “There are things we don’t know we don’t know.”

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1Never ones to disappoint, rest assured there’ll be lawyers geared up to file product liability lawsuits for anyone claiming retinal damage from uncertified eclipse glasses. Others will hope to sign aggrieved employees ready to tag employers for injured eyeball fallout after attending ill-advised company hosted eclipse-viewing parties at work.

Credits: Yogi Berra, by Google Man at Wikimedia Commons, Creative Commons Attribution.

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Last month, an Arizona psychic was at a restaurant having lunch when a car crashed through the window, threw him up in the air, and pinned him against a wall. “I didn’t foresee it happening,” joked injured psychic Blair Robertson after the accident. See “Arizona psychic injured when he ‘didn’t foresee’ car crash.”

Whether or not you believe in clairvoyance, you don’t need psychic powers to foresee that state bars without fail welcome their own collisions with the liberty interests of their members. It’s integral to the “do-gooder” mentality endemic among the “moral busybodies” running state bar associations.

“Those who torment us for our own good,” said C.S. Lewis, “will torment us without end for they do so with the approval of their own conscience.” 

Do-gooders.

https://lawmrh.files.wordpress.com/2017/06/travel-tourism-18.jpg?w=1000&h=The latest do-gooder intrusion comes from a surprising quarter, the State Bar of Nevada. At one time, the Nevada Bar could be characterized by a laissez-faire attitude consistent with Nevadans’ strong independent, libertarian streak. But oh, how times have changed.

Last year, in a misguided effort grounded on anecdotal conjecture about supposed prevalent substance abuse and mental health problems among Nevada’s lawyers, Nevada’s Bar Governors petitioned the high court for another mandatory hour of annual continuing legal education in substance abuse prevention and mental health.

Continuing legal education has never been proven it makes lawyers more competent or ethical. Just the same, the Nevada Bar thought an hour of mandatory substance abuse/mental health CLE would help make lawyers abstemious and healthy-minded.

And not satisfied with only that moral meddlesomeness, the board next appointed a task force to study whether Nevada lawyers should pay more to practice by following the Oregon Bar’s improvident model of forced professional liability insurance. Oregon’s insurance mandate currently compels lawyers to pay a hefty $3,500.00 annually for the merest nominal coverage.

https://lawmrh.files.wordpress.com/2017/06/people-16688.jpg?w=163&h=155At Revenge of the Do-Gooderin The American Thinker, Scott Boerman explained what animates the do-gooder is “a great desire to cure humanity’s ills and imperfections with solutions that invariably focus on controlling other people’s property and productivity. Not to be confused with real volunteers and philanthropists — who use their own skills and wealth to directly help a favored cause — the do-gooder uses only his brain to decide precisely what everyone else what should do with their abilities and wealth. And because the do-gooder is so confident that his plans are good for humanity, he strives to impose his will with a stick, be it regulatory, monetary, or via public brow-beating.”  

An unconstitutional speech code.

Nevada’s Bar, however, may have finally reached the apex of do-gooding thanks to a petition filed May 8th asking the state supreme court to adopt the new ABA Model Rule 8.4(g) which amends Nevada Rule 8.4 by adding an entirely new subsection (g). It reads:

It is professional misconduct for a lawyer to: . . . (g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status related to the practice of lawThis paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16.  This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

No jurisdiction has yet adopted the ABA 8.4 (g) model rule concoction passed last fall. Nevada hopes to be first.

Meanwhile, the amendment hits Boerman’s do-gooder regulatory, monetary and public brow-beating trifecta. Violations mean notoriety. Regulatory sanctions impact a lawyer’s ability to earn a living.

Academics like UCLA Law Professor Eugene Volokh and South Texas College of Law Professor Josh Blackman have weighed in against the proposed rule on constitutional grounds. The Attorneys General of Texas and South Carolina have also officially opined that a court would likely conclude ABA Model Rule 8.4(g) not only amounts to an unconstitutional restriction on the free speech, free exercise of religion, and freedom of association of attorneys but it’s also unconstitutionally overbroad and void for vagueness. See Opinion No. KP-0123, Attorney General of Texas and 14 South Carolina Attorney General Opinion.

Other commentators contend that by only proscribing speech that is derogatory, demeaning, or harmful toward members of certain designated classes, the Rule is an unconstitutional content-based speech restriction. Others argue attorney conscience rights are also adversely implicated.

Professor Blackman further raises separation of powers problems when bar disciplinary authorities lacking the “boundless discretion over all aspects of an attorney’s life” nevertheless attempt to regulate conduct beyond their legal power or authority.

More bar complaints.

But the real upshot is heightened lawyer liability when state bar disciplinary police are given unprecedented new powers to punish lawyers for conduct not directly connected with what ethical rule 8.4 already prohibits, which is misconduct while representing a client or implicating fitness to practice or prejudicing the administration of justice. The new rule enlarges the scope to include social conferences, bar association activities and private speech far removed from providing actual legal services.

As Professor Blackman further wrote in The Georgetown Journal of Legal Ethics about Model Rule 8.4(g):

“Lectures and debates hosted by bar associations that offer Continuing Legal Education (CLE) credits are necessarily held “in connection with the practice of law.” Lawyers are required to attend such classes to maintain their law licenses. It is not difficult to imagine how certain topics could reasonably be found by attendees to be “derogatory or demeaning” on the basis of one of the eleven protected classes in Rule 8.4(g).

Blackman lists sample topics chosen as he says for their “deliberate provocativeness” where a lawyer attendee might subject herself to discipline since the speaker “reasonably should know” that someone at the event could find the remarks disparaging towards one of the eleven protected groups.” Here are a few:

“● Race—A speaker discusses “mismatch theory,” and contends that race based affirmative action should be banned because it hurts minority students by placing them in education settings where they have a lower chance of success.
● Gender—A speaker argues that women should not be eligible for combat duty in the military, and should continue to be excluded from the selective service requirements.
● Religion—A speaker states that the owners of a for-profit corporation who request a religious exemption from the contraceptive mandate are bigoted and misogynistic.
● National Origin—A speaker contends that the plenary power doctrine permits the government to exclude aliens from certain countries that are deemed dangerous.
● Ethnicity—A speaker states that Korematsu v. United States sas correctly decided, and that during times of war, the President should be able to exclude individuals based on their ethnicity.
● Sexual Orientation—A speaker contends that Obergefell v. Hodges was incorrectly decided, and that the Fourteenth Amendment does not prohibit classifications on the basis of sexual orientation.”

All of which means an amended Nevada Rule 8.4 will unwisely empower a mandatory bar to extend existing lawyer First Amendment encroachments upon new terrains of unconstitutional discipline.

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The Nevada Supreme Court invites written comment from the bench, bar, and public regarding the proposed amendments. The Hearing date is July 17, 2017, at 2:30 p.m., Supreme Court Courtroom, 408 East Clark Avenue, Las Vegas, Nevada 89101. The Comment deadline is July 5, 2017, at 5:00 p.m., Supreme Court Clerk’s Office, 201 South Carson Street, Carson City, Nevada 89701.


Photo Credits: “Psychic,” by The She-Creature at Flickr Attribution;  “Satisfaction,” by Walter Kramer at Flickr Attribution; “aaaaaaaaaahhhhhhhh,” by Marco Boscolo at Flickr Attribution;”Tread Upon Now What?” by John Eisenschenk at Flickr Attribution; “kindness, persuasion, punishment,” by Meagan Fisher at Flickr Attribution.

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Note: The following story was originally published by ProPublica, “an independent, nonprofit newsroom that produces investigative journalism in the public interest.” It is republished with permission.

The behavior of Bill Kephart, who led the murder prosecution of Fred Steese, was repeatedly lambasted by the Supreme Court of Nevada. But that didn’t stop him from becoming a judge. This month he was charged with misconduct in that position too.

by Megan Rose, ProPublica

May 26, 2017

In the legal world, prosecutors are rarely called out by name. Their misconduct is usually attributed to unidentified prosecutors or the “State” in rulings by appellate judges. But as a Las Vegas prosecutor, Bill Kephart — now a judge — achieved a dubious distinction: He was chastised publicly.

The Supreme Court of Nevada took the rare step in 2001 of ordering him to prove why he shouldn’t be sanctioned for his behavior in one of his cases with a fine or a referral to the state bar for “violation of the Rules of Professional Conduct.” The ruling was disseminated statewide and, in Kephart’s own words, “professionally embarrassed” him. In his response, he wrote that the ruling had “already had a great impact” on him and promised that there wouldn’t be “a bona fide allegation of prosecutorial misconduct against me in the future.” The justices nevertheless fined him $250.

Fred Steese served more than 20 years in prison for murder even though evidence in the prosecution’s files proved he didn’t do it. But when the truth came to light, he was offered a confounding deal. Read the story.

The Supreme Court’s rebuke was particularly notable in Nevada, where the judges are elected and part of the state’s insular legal community. They typically rule unanimously and seldom come down too hard on prosecutors. As one retired chief justice put it: “Picking fights with district attorneys might not be the best thing for [a judge’s] career continuation.” But Kephart’s behavior challenged that status quo, compelling one or more of the justices to issue dissents in several cases, saying his behavior called for convictions to be overturned.

Overall, the Nevada high court has noted prosecutorial misconduct in at least five of his cases over a dozen years, not including his actions during the trial of Fred Steese — who was tried by Kephart for a 1992 murder and ruled innocent 20 years later after exculpatory evidence was found in the prosecution’s files. In the cases in which Kephart is not named, he is the prosecutor whose misconduct is cited:

  • In 1996, the court noted “several instances of prosecutorial misconduct” in a sexual assault case. The conviction was upheld, but one justice dissented, saying that Kephart had “infected” an already “muddled case” and it warranted reversal. (In 2001, a judge granted the defendant an evidentiary hearing and he was released.)
  • In 1997, the court reversed the murder convictions of two men based entirely on the “deliberate” and “improper comments” made by the prosecution during cross examination and closing argument. The DA’s office had sought the death penalty, which in Nevada increases costs by about a half million dollars on average, making this and other reversals based on Kephart’s behavior expensive screw-ups for taxpayers. (Both men were retried and convicted again in 1998, one sentenced to life in prison and the other to death.)
  • In 2001, in the case he was fined $250, the court said Kephart gave the jury a misleading explanation of the standard for reasonable doubt when he instructed them: “you have a gut feeling he’s guilty, he’s guilty.” A justice said at a hearing that the remark seemed “like deliberate misrepresentation.” The court upheld the conviction, but noted that Kephart’s “improper remark was particularly reprehensible because this is a capital case and the remark was gratuitous and patently inadequate to convey to the jury its duty…”
  • In 2002, the court took issue with Kephart for assaulting a witness. During the trial of a sexual assault case, Kephart said he wanted to demonstrate how the victim said she was choked, pressing his forearm into the defendant’s neck while he was on the stand. The court upheld the verdict, but noted there was “absolutely no reason” for Kephart’s behavior, which went “well beyond the accepted bounds of permissible advocacy.” One justice dissented, saying “the instances of prosecutorial misconduct were pervasive and substantial…an accused who takes the stand runs many risks. One of them should not be that the prosecutor would physically assault him or her.”
  • In 2008, the court tossed out a murder conviction in another death penalty case, saying, among other issues, the prosecution’s misconduct was “significant” and “occurred throughout the trial,” including Kephart’s remarks during jury selection and in closing. One judge dissented, saying the prosecutorial misconduct and other issues didn’t require reversal. (The defendant eventually pled guilty in 2014.)

In 2002, Kephart prosecuted another highly contested murder case against Kirstin Lobato, then 19, which has garnered national outcry for the meager and sometimes contradictory evidence against her. Lobato was recently granted an evidentiary hearing and is represented by the Innocence Project. This month, the prosecuting officer for the Nevada Commission on Judicial Discipline filed misconduct charges against Kephart for a media interview he gave about the case last year, in which he said it “was completely justice done.” Kephart’s “statements could affect the outcome or impair the fairness of Miss Lobato’s case,” according to the formal statement of charges. The statement said Kephart violated several rules of the judicial code of conduct. He has not yet filed a reply.

Kephart, who joined the DA’s office in the early 1990s as a brash young attorney, once got in a shoving match with a defense attorney. Another time a judge had to admonish him for repeatedly shaking his head, making faces and rolling his eyes. His behavior eventually led to minor reprimands from the Clark County District Attorney’s Office, according to several people who worked with him during that time. In 2002, after Kephart’s reasonable-doubt flub, the entire DA’s office had to complete a two-hour ethics course and continuing legal education classes, which the deputy district attorneys tagged the “Kephart CLE.” That same year, Kephart was briefly banned from trials. Regardless, he later became a chief deputy.

Kephart also was called before the state bar for his behavior in Steese’s murder trial, but, according to lawyers at the hearing, his boss made an appeal on behalf of him and the other prosecutor on the case, and neither was sanctioned.

Kephart declined several requests for comment.

Despite these repeated critiques of his conduct, Kephart was voted onto the bench in 2010 as a justice of the peace and in 2014 moved to the Eighth Judicial District Court of Nevada, where he today he presides over civil, construction and criminal cases.

Update, May 31, 2017: In his official written response to the disciplinary commission, Kephart has denied charges that he violated judicial canons with his remarks to the media about an open case. His response said that he had “participated in interim rehabilitation by taking classes,” and the commission should consider his honest motives, clean judicial disciplinary record, and “character and reputation.”

Megan Rose covers the military for ProPublica. Previously she was the national correspondent at Stars and Stripes.

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$112.50 to prepare a client’s invoice? Anecdotally, I’ve heard of lawyers charging clients for the time it takes to prepare a client’s bill. But from a client’s perspective, it’s a practice almost guaranteed to piss off a client. The only thing worse would be the lawyer who then charges the client when she calls for an explanation of the bill.1

Back in the olden days, lawyers, particularly the silk-stocking Big Law set may have arguably had a cricket’s crack of justification. In those days, big firms used pencils, prayer beads and abacuses to track hours on written daily time sheets. Accounting departments compiled the time sheets and produced pre-bills for partners to sprinkle with holy water before producing a final bill. That old-fashioned process took time and a lot of holy water.

But too bad for law firms big and small that still want to charge for preparing a bill. For almost 20 years now, lawyers have been able to use timekeeping and billing software to efficiently produce invoices in mere minutes.

Not to say that improved timekeeping and bill preparation necessarily means lower client invoices. After all, lawyers, myself included, are known to invoke the oft-quoted and genuflected Abe Lincoln maxim, “A lawyer’s time and advice are his stock in trade.”

But billing time notwithstanding, it’s not always time and advice lawyers sell to their clients. As Am Law Daily noted in the bankruptcy case of dog-killing pro footballer Michael Vick, his law firm invoiced him for $2.6 million in fees and expenses for 7,200 billable hours of work over ten months. The bill, however, also included the cost of running air conditioning during the weekend; taxi rides home for employees working late; and $1,200 for plane tickets from New York to Kansas. A judge subsequently reduced the bill.

Client push-back and ethical duty.

After a decade of flat wage growth; economic retreat and growing income inequality, consumers are increasingly price and value conscious. Lawyers also face ongoing competitive pressures from brick-and-mortar and online non-lawyer legal services providers.

Forget the arrogant nonsense that clients still have an expectation of getting hosed by their lawyers. Even if clients ever had that expectation, they certainly were never happy about it. When it comes to today’s practice of law, there’s more and more client push-back on fees and greater scrutiny on billing. I think this is a good thing.

As I’ve posted before here and here, when it comes to the reasonableness of attorney’s fees it’s like beauty — in the eye of the beholder. And this even when lawyers are supposed to be ethically guided by objective reasonableness standards under Ethical Rule 1.5.

Yet it’s really not that hard. First, a written attorney-client fee agreement is essential although as most lawyers know, it’s not necessarily the final word. Second, tow the line on the professional duty that lawyers owe their clients, which is to advance the client’s interest under the limits set by law.

1152762_left_hand_silhouette-_womanAs Kathryn Thompson further explains at “Let’s be Reasonable” in The ABA Journal, “A breakdown in the lawyer-client relationship that culminates in the lawyer withdrawing or being discharged frequently sets the stage for violations of Rule 1.5. Lawyers often run afoul of the rule’s reasonableness requirement in the process of terminating the relationship or when defending against disciplinary complaints by the client. In both situations, lawyers sometimes fall into the trap of improperly billing for activities that advance their own interests rather than fulfill their obligation to the client.”

Not often and not always, lawyers do get disciplined for ethics violations involving improper billing practices. For example, Kathryn Thompson also mentions the Indiana lawyer whose suspension was upheld by the state supreme court for among other things, billing his client for time spent reading the client’s representation termination letter and for then billing the client for post-termination work. See Matter of Comstock.

So in the context of billing clients, the better ethical posture is to always ask whether or not the fees charged were reasonably expended to advance the client’s interest — not the lawyer’s. By that measure, weekend air conditioning, taxi rides and bill preparation shouldn’t pass muster.

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[1] And then there’s the worn-out lawyer joke about the new client who comes to see the lawyer. “Can you tell me how much you charge?”, asks the client. “Of course”, the lawyer replies, “I charge $300 to answer three questions!” “Well that’s a bit steep, isn’t it?” “Yes it is”, says the lawyer, “And what’s your third question?”

Photo Credits: Photos from Morguefile.com, no attribution required.

 

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