Justia Legal Ethics Opinion Summaries

Golubitsky, as a Virgin Islands Criminal Justice Act (CJA) panelist, was appointed counsel for Bellille, an indigent defendant in a multi-defendant RICO prosecution. Golubitsky unsuccessfully moved to withdraw, arguing that he was no longer a CJA panelist, having moved to an in-house counsel role, and was contractually barred from the representation. Weeks later, Golubitsky purportedly started an of-counsel relationship at the DiRuzzo law firm and filed an emergency motion to withdraw as Bellille’s counsel, arguing that DiRuzzo represented Ayala, who was likely to testify against Bellille, which created a conflict of interest. Golubitsky and DiRuzzo explained that Golubitsky was “on [the firm’s] system,” could bill using the firm’s software, and was added to DiRuzzo’s malpractice insurance. Golubitsky worked full-time as in-house counsel while working part-time for DiRuzzo’s Florida firm, litigating four matters together. They had no involvement in the other’s work related to Bellille’s case nor had they shared any information about the case. The court denied Golubitsky’s motion and ordered DiRuzzo and Golubitsky to wall off the latter’s representation of Bellille from DiRuzzo’s representation of Ayala.The Third Circuit vacated and remanded, noting many “factual gaps,” surrounding the relationship between DiRuzzo and Golubitsky and why the relationship was established. The situation cannot be both ways. Either the of-counsel relationship was not genuine and there was no basis for imposing a screen or there was a true of-counsel relationship and a screen alone could not cure the conflict. View "United States v. Bellille" on Justia Law

In November 2013, three men robbed a Bala Cynwyd, Pennsylvania bank. A bank employee, Kane, later admitted to assisting them. The next morning, the three were pulled over in North Carolina. Wilson stated they were driving to Georgia and admitted that they had a lot of cash in the car. The officer, suspecting that they were going to buy drugs in Atlanta, searched the car, found the stolen cash, turned it over to federal agents, then released the men. A week later, three men robbed a Phoenixville, Pennsylvania bank. The police got a tip from Howell, whom Wilson had tried to recruit for the heists. Howell provided Wilson's cell phone number. Police pulled his cell-site location data, which put him at the Bala Cynwyd bank right before the first robbery and showed five calls and 17 text messages to Kane that day. Howell identified Wilson and Moore from a video of the robbery.Kane and Foster took plea bargains. Wilson and Moore were tried for bank robbery, conspiracy, and using a firearm in furtherance of a crime of violence. Moore was sentenced to 385 months’ imprisonment. Wilson received 519 months. The Third Circuit affirmed. Counsel’s stipulation that the banks were federally insured did not violate the Sixth Amendment, which does not categorically forbid stipulating to a crime’s jurisdictional element without the defendant’s consent or over the defendant’s objection. View "United States v. Wilson" on Justia Law

Green, was convicted of two counts of the first-degree murder for the gang-related shooting death of Lewis and was sentenced to 35 years’ imprisonment on one of those convictions. The conviction was affirmed on direct appeal. The trial court rejected a post-conviction petition alleging that Green’s trial counsel, Ritacca, labored under a per se conflict of interest because his trial counsel had previously represented Williams, the intended victim of the murder, who was in the vehicle with Lewis at the time of the shooting. Green neither knew about the conflict nor waived the conflict was rejected.The appellate court and Illinois Supreme Court affirmed, finding no per se conflict of interest. Only three situations establish a per se conflict of interest: where defense counsel has a prior or contemporaneous association with the victim, the prosecution, or an entity assisting the prosecution; where defense counsel contemporaneously represents a prosecution witness; and where defense counsel was a former prosecutor who had been personally involved with the prosecution of the defendant. Ritacca’s representation of both defendant and Williams did not fit within any of those three per se conflict situations. View "People v. Green" on Justia Law

Reyes-Romero was prosecuted for unlawful reentry, 8 U.S.C. 1326. The district court dismissed the indictment, finding that irregularities in Reyes-Romero’s removal proceeding constituted fundamental errors that caused him prejudice. The court stated that the government’s subjective motivation for its motion to dismiss was a desire to rely on the 2011 removal order in future immigration proceedings, which“taint[ed]” the Government’s effort. The court then awarded Reyes-Romero fees pursuant to the Hyde Amendment, under which a prevailing defendant in a federal criminal prosecution can apply to have his attorney’s fees and costs covered by the government if the defendant shows that “the position of the United States” in the prosecution “was vexatious, frivolous, or in bad faith,” 18 U.S.C. 3006A.The Third Circuit reversed. “Although assuredly born of good intentions and understandable frustration with faulty processes in the underlying removal proceeding,” the award was not based on the type of pervasive prosecutorial misconduct with which the Amendment is concerned. Reyes-Romero’s 2011 expedited removal proceeding deviated from the required ordered, sensible process and reasonable minds may differ about how the prosecution should have reacted once those issues became apparent. Where reasonable minds may differ, however, and where the government made objectively reasonable and defensible choices, there can be no Hyde Amendment liability. View "United States v. Reyes-Romero" on Justia Law

The Supreme Judicial Court affirmed the judgment of a single justice of the court granting the Commonwealth's petition under Mass. Gen. Laws ch. 211, 3 and ordering that a certain superior court judge be recused from acting on Defendant's postjudgment motion to dismiss the indictments against him or for a new trial in his criminal case, holding that the single justice did not err or abuse her discretion.Defendant was convicted of murder in the first degree. The Supreme Judicial Court remanded the case for consideration of whether Defendant was prejudiced by trial counsel's potential conflicts of interest. On remand, Defendant moved to dismiss the indictments against him or for a new trial on the basis of Brady violations. The motion judge raised the question whether she could be impartial because the prosecutor had since been appointed as a superior cour judge and was now her judicial colleague. The Commonwealth subsequently filed a motion in support of recusal. The judge denied the motion, concluding that she could be fair and impartial. The Commonwealth filed a Mass. Gen. Laws ch. 211, 3 petition. A single justice allowed the petition. The Supreme Judicial Court affirmed, holding that the prudent and legally correct result under the circumstances was for the judge to recuse herself. View "Commonwealth v. Cousin" on Justia Law

The Ninth Circuit affirmed defendant's conviction of wire fraud and filing false tax returns. The jury found that defendant embezzled over $300,000 from the company for which he served as managing member and president.The panel overruled its prior decisions in light of the Supreme Court's intervening decision in Shaw v. United States, 137 S. Ct. 462 (2016), and held that wire fraud under 18 U.S.C. 1343 requires the intent to deceive and cheat, and that the jury charge instructing that wire fraud requires the intent to "deceive or cheat" was therefore erroneous. However, in this case, the panel held that the erroneous instruction was harmless. The panel noted that it was deeply troubled by an Assistant U.S. Attorney's disregard for elementary prosecutorial ethics, but that the misconduct did not entitle defendant to any relief. The attorney here had a personal and financial interest in the outcome of the case. The panel wrote that as soon as the Department of Justice became aware of the impropriety, it took every necessary step to cure any resulting taint, including turning over the entire prosecution of the case to disinterested prosecutors from the Southern District of California. Finally, the panel found defendant's remaining arguments to be without merit. View "United States v. Miller" on Justia Law

Glen Ward appealed an order and final judgment of the district court granting the State’s motion for summary dismissal and dismissing his petition for post-conviction relief. In 2014, Ward was convicted of sexual abuse of a minor under 16 years of age after he pleaded guilty to all elements of the crime except for the sexual intent element, to which he entered an Alford plea. He was sentenced to 18 years imprisonment with a 7-year fixed term. Ward asked for, and was granted, appointment of counsel to represent him in the post-conviction relief proceedings. After granting the motion, the district court appointed a conflict public defender to represent Ward in the action. Although he had secured new counsel, Ward subsequently filed numerous pro se documents. Ward argued the district court abused its discretion by denying his motion to proceed pro se as moot. Ward also argued the district court erred in denying his motion to proceed pro se because a post-conviction petitioner has a right to proceed pro se. After review, the Idaho Supreme Court vacated in part and affirmed. The Court held that the district court should have refused to entertain Ward’s independent filings in the first place; to the extent that the district court entertained the filings made by Ward as opposed to by his attorney, it was error to do so. However, having come to the conclusion that the district court erred, not by ruling incorrectly on Ward’s purported motion, but by ruling on it at all, the Supreme Court did not need to reverse the district court’s separate order and final judgment granting summary dismissal. "Because we hold that there was no motion properly before the district court to be ruled upon in the first place, the district court’s denial of the purported motion has no impact on the propriety of its final decision and judgment dismissing Ward’s post-conviction petition on the merits." View "Ward v. Idaho" on Justia Law

Naziyr Yishmael, who was not an attorney, advised clients that they could "homestead" in apparently abandoned properties and, after a period of time, acquire title through adverse possession. After some of his clients were arrested for taking up residence in other people's houses, he was charged with and convicted of misdemeanor unlawful practice of law. On appeal, he contended: (1) the jury was improperly instructed that the unlawful practice of law was a strict liability offense; (2) the trial court's use of GR 24 to define the practice of law violated separation of powers was an inappropriate comment on the evidence; (3) the Statute was unconstitutionally vague; and (4) the evidence presented was insufficient to sustain his conviction. Finding no reversible error, the Washington Supreme Court affirmed Yishmael’s conviction. View "Washington v. Yishmael" on Justia Law

The State charged David Nickels with first degree murder in 2010 in Grant County, Washington. Though represented by counsel. Nickels acquired additional legal assistance from a local criminal defense attorney, Garth Dano. The parties agreed that Dano's involvement in Nickels' defense created a conflict of interest requiring Dano's personal disqualification, but they disputed the scope of his involvement. The record established that Dano entered a notice of association of counsel and appeared on the record to receive a jury question and to receive the jury's verdict. The record further establishes that after Nickels' conviction in 2012, Dano conducted interviews with jurors and potential exonerating witnesses. Via his counsel's uncontested affidavit, Nickels claimed Dano received privileged work product through his participation in crafting the defense's strategy and theory of the case, and his meeting personally with Nickels. In 2014, while Nickels' appeal was pending, Dano was elected Grant County prosecutor. Subsequently, in 2017, the Court of Appeals reversed Nickels' conviction. On remand, the Grant County Prosecuting Attorney's Office immediately sought to screen now-Prosecutor Dano. Nickels moved to disqualify the entire office, arguing that under “Stenger,” Dano's prior involvement in his defense necessitated the blanket recusal. The trial court denied Nickels' motion; but the Court of Appeals reversed and, applying Stenger, ordered the disqualification of the entire Grant County Prosecuting Attorney's Office. The Washington Supreme Court determined Stenger’s narrowly crafted rule applied only to Washington's 39 elected county prosecutors who, despite adequate screening, retained broad discretionary and administrative powers over their offices and employees. Accordingly, the Supreme Court held that Stenger remained good law, and affirmed the Court of Appeals' decision disqualifying the Grant County Prosecuting Attorney's Office. View "Washington v. Nickels" on Justia Law

Caviedes-Zuniga pleaded guilty to distributing 140 grams of heroin. 21 U.S.C. 841(a)(1), (b)(1)(B). He was sentenced to 111 months’ imprisonment, 77 months below the 188 -235 months recommended by the Sentencing Guidelines. After filing a notice of appeal, he told his lawyer that he wants a trial. He also told his attorney that he does not wish to contest his sentence if the conviction remains in place. Counsel asked to withdraw, representing that he deems the appeal frivolous; he argued that a successful appeal could upset the sentence and harm the defendant. The Seventh Circuit agreed and dismissed the appeal as frivolous, allowing counsel to withdraw. A judge might well reconsider the sentencing discount for acceptance of responsibility on learning that on appeal Caviedes-Zuniga tried to have the plea vacated, even if the attempt failed. View "United States v. Caviedes-Zuniga" on Justia Law