What Happens To Lawyers When They Miss Death Row Deadlines? Apparently Nothing

On November 16, 2014, The Washington Post ran an article written by Ken Armstrong for The Marshall Project titled When Lawyers Stumble, Only Their Clients Fallabout when court-appointed lawyers miss deadlines for filing death-penalty habeas corpus appeals.  Federal habeas corpus appeals typically occur after the state appeals have been exhausted — it is a final review of the convictions.

But what happens to lawyers when they miss these deadlines?  Apparently, nothing.

[A]n investigation by The Marshall Project has found that in at least 80 capital cases in which lawyers have missed the deadline — sometimes through remarkable incompetence or neglect — it is almost always the prisoner alone who suffers the consequences.

Among the dozens of attorneys who have borne some responsibility for those mistakes, only one has been sanctioned for missing the deadline by a professional disciplinary body, the investigation found. And that attorney was given a simple censure, one of the profession’s lowest forms of punishment.

And these same lawyers are able to seek appointments to new capital appeal cases because there is an “absence of any systematic monitoring or punishment for mistakes on which their clients’ lives might depend.”

In extreme cases, federal judges may suspend incompetent or unethical lawyers from practicing in their districts. But the primary instruments for lawyer oversight and discipline are state bar associations.

The state bar associations, it seems, are doing little if anything to oversee or discipline these lawyers.  But now, the President may be getting involved.

In an interview, the outgoing United States attorney general, Eric H. Holder Jr., said that before he relinquishes his post, he will deliver a report to President Obama on problems with the death penalty around the country, and that the department will consider the issue of missed deadlines in the filing of habeas petitions.

‘When you’re talking about the state taking someone’s life, there has to be a great deal of flexibility within the system to deal with things like deadlines,’ Holder said. ‘If you rely on process to deny what could be a substantive claim, I worry about where that will lead us.’

Legal reform is so important to legal consumers, and especially to those whose lives are at stake.

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Parole Boards Embracing Legal Reform? Some Are

imagesIn a November 12, 2014 New York Times article titled A Claim of Innocence Is No Longer a Roadblock to Parole, columnist Stephanie Clifford reports on the paradox of Fishkill Correctional Facility prisoner Freddie Cox and his quest for parole while maintaining his innocence. Mr. Cox was convicted of a 1986 Coney Island murder and sentenced to 25 years to life.  Four times Mr. Cox sought parole while maintaining his innocence, even providing evidence of his innocence, and three times he was denied parole.  This is known as the “parole paradox.”  Finally, after 28 years in prison, Mr. Cox was granted parole on his fourth try.

Admitting guilt has historically given inmates a better shot at parole. ‘Claiming to be innocent was, in the past, considered to be denial,’ said Daniel S. Medwed, a professor at Northeastern School of Law.

But reform has come to parole boards in some states.

But now, as New York and other states confront a growing number of wrongful-conviction claims, lawyers, inmates and parole experts say the beginnings of a change are occurring.

*     *     *

‘Parole commissioners, like the rest of society, have come to recognize that there are far more innocent people in prison than we had ever imagined, so they’re more receptive to that argument,’ said Ron Kuby, a civil rights lawyer.

It is encouraging to see that certain parole boards are recognizing the reality that some prisoners are innocent and are changing the perception that a prisoner seeking parole who professes innocence is lying and should be denied parole.  LPR applauds those parole boards that embrace legal reform.

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The Elderly and Others Beware

A well-respected elder law attorney in New Jersey who offered seminars on end of life affairs pleaded guilty on Monday to first degree money laundering, admitting she stole millions of dollars from elderly clients.  According to the State of New Jersey Office of the Attorney General’s November 3, 2014 News Release, Barbara Lieberman is expected to receive a 10-year prison sentence and must forfeit her law license and $3 million to pay restitution to the victims.  Charges are still pending against Jan Van Holt, a social worker and owner of A Better Choice, which provided in-home services and legal/financial planning to seniors, and two others.


Courtesy of nj.gov

Ms. Lieberman reportedly targeted elderly clients with substantial assets but often with no immediate family.  It is alleged that Ms. Van Holt referred clients to Ms. Lieberman and vice versa.

Lieberman would prepare the documents naming herself or another defendant as power of attorney. The defendants then allegedly added their names to the victim’s bank account or transferred the victim’s funds into new accounts they controlled. . . . A portion of the money was used to fund the victim’s continued expenses to keep the victim unaware of the thefts. In some cases, money from one victim would be transferred to another victim to pay expenses and cover up the thefts. If the victim owned stocks or bonds, they were cashed out and the funds were deposited into the account allegedly controlled by the defendants. . . . Lieberman also prepared wills for some of the victims, and she or Van Holt would execute the wills, allegedly continuing to steal from the estates of the victims after they died.

We at LPR are sickened by this report of an attorney taking advantage of one of our societies most vulnerable.  The elderly should beware of this cautionary tale, but so should others.  Be forward thinking and make sure you have in place some check and balance to ensure that nothing like this happens to you or the ones you love.



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Widow’s Estate Ordered To Pay Lawyers $44 Million For Five Months Work

New York’s highest court ruled this past Tuesday that the Estate of Alice Lawrence must pay Manhattan law firm Graubard Miller $44 million in contingency fees as a result of a $111 million settlement reached five months after the dispute began.  According to an October 28, 2014 Reuters article titled, New York law firm wins case over $44 million in fees charged to developer’s widow, the Court also rejected the Estate’s claim to recover the more than $5 million in gifts Ms. Lawrence gave to three of the firm’s lawyers, ruling that the claim was too late.

125px-Seal_of_the_New_York_Court_of_Appeals.svgMs. Lawrence, widow of developer Sylvan Lawrence, retained the firm in 1983 to represent her and paid them $18 million in hourly fees over 22 years.  When she died in 2008, her children said Ms. Lawrence was remorseful she signed the contingency fee agreement, comparing her attorney to “Svengalis.”  The Court, reversing a lower court ruling that the fees were “unconscionable,” found that the 80-something widow was a sophisticated client:

She was a competent and shrewd woman who made a business judgment that was reasonable at the time, but which turned out in retrospect to be disadvantageous.

Without more facts, it is hard to know which court ruling was correct.  Perhaps Ms. Lawrence was a savvy legal consumer and made a bad bet.  Or could the lawyers have taken advantage of an elderly woman and given her bad advice to induce her into the contingency contract?  Regardless, this is a cautionary tale to all legal consumers, who should always ask themselves whether the agreements their lawyers propose are in their best interests or in the best interest of their lawyers.

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OASIS Seminar Reviews Are In!

Elisa Eisenberg, LPR’s founder and CEO, conducted a seminar on September 30, 2014 for Washington Metropolitan OASIS titled Need A Lawyer? How to Navigate the Attorney/Client Relationship.  LPR was encouraged to learn that the participants found the seminar helpful and informative:

newlogo“Gave a very realistic and detailed view of the legal process!!”

“Good information”

“Presentation was excellent”

“She explained clearly – ask lots of questions”

“Content was clearly presented, covered a lot in a short time”

Janice Pliner, Program Manager of Washington Metropolitan OASIS, echoed the participants’ comments:

“Our members truly appreciate your sharing your time and talents with OASIS.  Your audience responded well to a very informative, knowledgeable presentation. . . . please accept our sincere thanks for your support of our mission to promote successful aging via lifelong learning.”

LPR is grateful to Washington Metropolitan OASIS for the opportunity to speak about legal practice reform and to help the participants be more educated legal consumers.

Want LPR to speak at your next event and help your company and employees become more educated legal consumers?  Please visit www.LegalPracticeReform.com or contact LPR directly at (301) 351-7970 or info@legalpracticereform.com to get more information or schedule an event.

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Legal Education for Legal Consumers?

We have suggested in many of our posts that legal consumers should educate themselves on the law in an effort to level the playing field with their attorneys and the legal system. But short of applying to law school, how can legal consumers educate themselves?

CLEWell, 93-year old Harold Kent is auditing classes at Yale Law School.  According to the October 10, 2014 New Haven Register article titled, Randall Beach: It’s never to late to go to Yale Law School, Mr. Kent had planned as a young man to attend law school after graduating from Ohio State University.  But after being “pulled” into the Infantry in his last year of college and spending two and a half years in the Army, including fighting in the Battle of the Bulge, law school “was the farthest thing” from his mind.  Instead, he went into his father’s formal wear business, outfitting George H.W. Bush, George C. Scott and Paul Giamatti. After 35 years, he sold the business and was recruited by a local real estate company to start its new Business Opportunities Department.

Three years ago, Mr. Kent approached the Yale Law School dean about auditing classes. Although Yale had not allowed non-registered students to audit classes before, the dean authorized it so long as Mr. Kent obtained permission from each professor.  Three years later, Mr. Kent notes: “I’ve never had a professor turn me down.”

While auditing law school classes is one way to learn about the law, there are other, less time-consuming, opportunities.  “Continuing Legal Education” or “CLE” programs offer many basic, practical legal courses that address virtually all areas of the law.  CLE courses are offered by most state bar associations, national bar associations, law schools and private companies.  As simple internet search for “continuing legal education” will bring up a number of choices in your area.

Continuing Legal Education courses are a good way to learn about the law of the case or issue you are facing.  And you don’t have to be a lawyer to attend.

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Legal Consumer Tip #8 – McElhaney on Litigation

We’ve blogged before about certain of Jim McElhaney’s articles for the ABA Journal and about self-help resources for legal consumers.  After reading many of the almost 100 articles Mr. McElhaney wrote, we believe that his “advice”  for lawyers also qualifies as an instructive self-help resource for legal consumers.  A sampling of his McElhaney on Litigation articles includes the following:

  • SelfDon’t Be Seduced: Falling in Love with Your Case Means You Won’t See Its Shortcomings
  • Play by the Rules: There Is a Right Way to Make Objections
  • Experts Will Tell You a Lot in Depositions if You Ask the Right Questions
  • That’s a Good One: Effective Trial Lawyers Know How to Tell a Good Story
  • Killing Your Case with Clutter
  • Closing Theme
  • The Arsenal of Persuasion
  • Persuasive Cross-Examination
  • Persuasive Direct [Examination]
  • Organizing the Case
  • The Point of Cross [Examination]
  • How to Make a Losing Argument
  • Persuasive Organization

Legal consumers can find these and other of Mr. McElhaney’s articles about different aspects of litigation by clicking on the link above.  His articles are an excellent, easy to follow, resource for anyone entering or in litigation.

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Attorney Tip #10 . . . Legal Consumer Tip # 7 – Better Brief Writing

Last week we posted a tip for attorneys about brief writing.  This week, we stumbled upon an article by Bryan Garner providing tips for “better” brief writing.  On October 1, 2014, Mr. Garner wrote an article for lawyers in the ABA Journal titled, “10 Tips for Better Legal Writing.”  Mr. Garner’s tips are also helpful to legal consumers who are writing their own court filings or reviewing those their attorneys draft.  Here are Mr. Garner’s 10 tips:

  1. Be sure you understand the client’s problem. When given an assignment, ask plenty of questions. Read the relevant documents and take good notes. Learn all you can about the client’s situation.
  2. Don’t rely exclusively on computer research. Combine book research with computer research. Don’t overlook such obvious resources as Corpus Juris Secundum and American Jurisprudence. . . . And when it comes to computer research, don’t forget Google Books (especially the advanced-search function): It can open up a great variety of fresh resources in addition to what you find with Westlaw or Lexis.
  3. Never turn in a preliminary version of a work in progress.
  4. Summarize your conclusions up front. . . . [Y]ou’ll need an up-front summary. That typically consists of three things: the principal questions, the answers to those questions and the reasons for those answers. If you’re drafting a motion or brief, try to state on page one the main issue and why your client should win—and put it in a way that your friends and relatives could understand.
  5. Make your summary understandable to outsiders. . . . . So don’t write your issue this way: “Whether Goliad can take a tax deduction on the rent-free space granted to Davidoff under I.R.C. § 170(f)(3)?” That’s incomprehensible to most readers because it’s too abstract and it assumes insider knowledge. . . . You’d be better off setting up the problem in separate sentences totaling no more than 75 words: “Goliad Enterprises, a for-profit corporation, has granted the Davidoff Foundation, a tax-exempt charity, the use of office space in Goliad’s building free of charge. Will the Internal Revenue Service allow Goliad to claim a charitable deduction for the value of the rent-free lease?”  Then provide the brief answer: “No. Section 170(f)(3) of the Internal Revenue Code disallows charitable deductions for grants of partial interests in property such as leases.”
  6. Don’t be too tentative in your conclusions, but don’t be too cocksure, either. . . . Even experienced lawyers sometimes hedge needlessly. This approach can look wishy-washy. What’s wanted is your best thought about how a court will come down on an issue.
  7. Strike the right professional tone: natural but not chatty.
  8. Master the approved citation form. Find out what the standards are for citing authority in your jurisdiction. In California, lawyers follow the California Style Manual. In New York, they should (but frequently don’t) follow the New York Law Reports Style Manual. In Texas, every knowledgeable practitioner follows the Texas Rules of Form. Other states have their own guides. And, of course, The Bluebook and the ALWD Guide to Legal Citation are widely used as defaults (and sometimes required by court rules).
  9. Cut every unnecessary sentence; then go back through and cut every unnecessary word. Verbosity makes your writing seem cluttered and underthought. . . . The late Judge David Bazelon of the U.S. Court of Appeals for the District of Columbia Circuit was a stickler for super-tight prose. Once, when his student clerk, Eugene Gelernter (now a New York City litigator), brought him a draft opinion, the great judge said: “Nice draft, Gene. Now go back and read it again. Take out every paragraph you don’t need, then every sentence you don’t need. Then go back and take out every word you don’t need. Then, when you’re done with that, go back and start the whole process all over again.” We should all have such a mentor.
  10. Proofread one more time than you think necessary. If you ever find yourself getting sick of looking at your work product and starting to do something rash such as throwing your hands up and just turning it in at that moment, pull yourself up short. Give it a good dramatic reading. Out loud. You’ll still find some slips and rough patches—and you’ll be glad you did. Better that you find the problems than your readers do.

Good brief writing is a skill that can and should be continually honed.  Clear, concise, well supported, powerful writing is persuasive, and Mr. Garner’s tips provide a solid roadmap for attorneys and legal consumers alike.

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Attorney Tip #9 – Brief Writing

In an ABA Journal article titled “Dirty Dozen: 12 Ways to Write a Really Bad Brief,” Jim McElhaney writes about the “ordinary sins [of bad brief writing] that even good lawyers commit everyday.”  According to Mr. McElhaney, they include:

  1. Polly PlaintiffMake it a “long,” not a brief. There are lots of ways to make a brief too long: too many points, too many citations, too many quotations, too many words.  But what many judges look for is too many pages. Some judges delight in reading only up to the page limit they’ve imposed by local rule and then stopping.
  2. Throw issues against the wall. Too many issues make a bad brief no matter how many—or how few—words it has.
  3. Flunk the giggle test. Seriously pressing a point that doesn’t pass the giggle test is deadly because it undermines your credibility.
  4. Commit purposeful errors. . . . Judges don’t always call lawyers on what they think may be purposeful misstatements because intent is always hard to prove. But judges talk with each other—their club is a small one.
  5. Make unreasonable arguments. The advocacy system is supposed to work when each side makes its strongest arguments. But “strongest” does not mean loudest, longest or most one-sided. Making the best argument you can means being reasonable, logical, fair. Concede the obvious. Not every issue has two good sides to it.
  6. Be bombastic. Exaggerated words go hand in hand with unreasonable arguments.      . . . Here are examples of the kinds of words and phrases you should cross out on the first revision of any brief: manifestlyclearlyfatalclear beyond peradventurelogic that is fatally flawed,egregiouscontumaciousmere gossamermust necessarily failtotally inapposite.
  7. Let Mongo loose. Lambasting the trial judge, the other lawyer, the Supreme Court, Congress, the president, the governor or the state legislature is rarely necessary or even helpful in writing a brief. Even if your readers secretly agree with you, they will still disapprove of using a brief to let fly at your favorite targets.
  8. Lay on the legalese. Aiming for a tone of formality and respect, we almost always go too far and instead create a forest of awkward verbiage.
  9. Load up the citations. Lots of briefs contain lists of authorities that are two or three pages long. When you leaf through the text, you see a daunting bramble bush of quotations and case references on every page. What it says is: “Heavy reading ahead. There is nothing clear about this case. It has a lot of difficult questions that could obviously go either way.”
  10. Quote like crazy. . . . Quotations should be occasional gems that add sparkle to a page. Good quotes make important points in a memorable way. The problem is, good writing is hard to find in most judicial opinions, so quoting from them extensively tends to be deadly.
  11. Don’t analyze. Some brief writers run through statutes and case holdings well enough but never really analyze the case, discuss the issues, show how the rules apply or address the difficulties they raise.
  12. Tell no story. Every brief should tell the story of an injustice, a wrong that needs to be righted or avoided.  The story is central to the way we process facts. It is the basic system we use to teach, to understand, to instill moral precepts and to memorialize important events. Telling an engaging story in the statement of facts and the issues they raise gives meaning to an otherwise dry assemblage of information.  How you do it depends on who you are writing the brief for.

While it is important for attorneys to be aware of these brief writing pitfalls, it is also helpful for legal consumers to understand what contributes to bad brief writing and how it can impact the judges’ decisions.  

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Attorney Tip #8 – Tread Lightly

What do you do when a client posts a negative review on Yelp, Avvo, Martindale Hubbell or another review website?  Do you shoot off a response?  Do you provide your side of the story?  Given what’s at stake, you should tread lightly.

Document4Susan Michmerhuizen, ETHICSearch Research Counsel with the American Bar Association, addressed the thorny issue of negative client reviews on social media in the September 2014 issue of YourABA.  In an article titled, “Client reviews: Your thumbs down may come back around,” Ms. Michmerhuizen poses the hypothetical of a client, who while not truthful about the facts in a custody matter that led to an unfavorable outcome, writes a negative review about the attorney.  The attorney in the hypothetical grapples with whether to reveal the true facts in a response to the review.

The article cautions that although it can be “maddening” for there to be only the client’s version of events, attorneys should not opt for a “scorched earth” response.

In these days of the Internet and social media, remember the “new” adage: Only post materials on the Internet that you wouldn’t mind seeing on the front page of the New York Times. Remember that any reply will live on, past the time when your emotions have cooled down. It will also remain for new clients to see and use to evaluate you. Damage control, not revenge, is the mantra.

Attorneys should carefully consider the consequences to defending themselves in a response.  As explained in the article, the self-defense exception to Rule 1.6 does not apply to online reviews, because they are not “controversies” or “proceedings” as required by the rule.

Suggestions on what to do include letting it go if the post is poorly written and seeking positive reviews from other clients (without any quid pro quo).  In Opinion 2014-200 (2014), the Pennsylvania State Bar ethics committee proposed attorneys consider posting the following response:

A lawyer’s duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point-by-point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.

Regardless of how untruthful an online review is, tread lightly and consider the long-term implications of shooting off a defensive response.

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