Justia Legal Ethics Opinion Summaries

The Office of Disciplinary Counsel and the West Virginia Lawyer Disciplinary Board (collectively, the ODC) issued an informal advisory opinion that determined (1) the Attorney General did not have authority to prosecute criminal cases outside of the limited prosecutorial authority granted by W. Va. Code 5-3-2, and (2) the Rules of Professional Conduct would be violated if the Attorney General prosecuted assisted county prosecutors in certain criminal prosecutions. The Attorney General subsequently filed the instant petition for a writ of prohibition to prevent ODC from enforcing the informal advisory opinion, contending that county prosecutors have authority to request the Attorney General to assist with criminal prosecutions and that the office of the Attorney General has independent common law authority to prosecute criminal cases. The Supreme Court denied the writ, holding (1) county prosecutors do not have statutory authority to appoint the Attorney General as a special prosecutor; and (2) under the state Constitution and statutory law, the common law criminal prosecutorial authority of the Attorney General was abolished. View "State ex rel. Morrisey v. W. Va. Office of Disciplinary Counsel" on Justia Law

During the trial of State v. Deedy and on the fifth day of jury deliberations, the circuit court conducted five separate court proceedings that were not open to the public. The transcripts from the court sessions were subsequently sealed, and a mistrial was declared as a result of a deadlocked jury. Petitioners, the Honolulu Star-Advertiser and Hawaii News Now, filed petitions for writs of prohibition and mandamus seeking to prohibit the circuit court from sealing any portion of the trial transcript and to prohibit the court from closing the courtroom in a similar manner in a re-trial of State v. Deedy and in any other criminal proceeding. On remand, the circuit court unsealed the transcript. The Supreme Court (1) dismissed the writ of prohibition as moot because the circuit court already unsealed the transcript of the closed proceedings; (2) denied the writ of mandamus as unnecessary in light of the directive of this opinion; and (3) adopted procedures that a court is required to follow before denying public access to a transcript of a closed proceeding.View "Oahu Publ’ns, Inc. v. Hon. Karen Ahn" on Justia Law

Warden Gregory McLaughlin appealed the grant of a writ of habeas corpus to William Payne. In 2006, Payne was convicted on two counts of aggravated child molestation, three counts of child molestation, and one count of cruelty to children. At trial, then District Attorney for Douglas County, David McDade, appeared as a witness for the State. He identified himself to the jury as the district attorney, identified the examining prosecuting attorney as his assistant, and outlined his duties as district attorney. He also testified that his daughter was a classmate of the victim named in the indictment; his daughter told him what she had heard of the crimes; he participated in an interview of Payne early in the investigation; during the first few days of the investigation, law enforcement efforts were focused on finding Payne; and, that after his interview, he realized he would likely be a witness at trial, and removed himself from Payne's prosecution. Payne appealed, but his convictions were affirmed. In 2009, Payne filed a petition for a writ of habeas corpus, raising, inter alia, a claim of ineffective assistance of appellate counsel. The habeas court found that McDade had a conflict of interest, had testified falsely at trial, and that appellate counsel should have pursued these two issues on appeal. The habeas court also found that had the issues been raised on appeal, the result of Payne's direct appeal would have been different. The court granted the writ of habeas corpus. The warden argued that the habeas court erred in finding that the representation by Payne's appellate counsel was ineffective. The Supreme Court affirmed, finding that the assistant district attorney who acted at trial did so under the authority vested in McDade as the elected district attorney. McDade's disqualifying personal conflict of interest removed that authority, and he was not replaced as provided for by statute. View "McLaughlin v. Payne" on Justia Law

The appellate counsel of Defendant, a prisoner under a sentence of death, requested that the Supreme Court depart from its established procedure for requiring counsel to proceed with diligent appellate advocacy during mandatory review in death penalty cases where the defendant expresses a desire to be executed. Defendant in this case wished to argue in favor of the death sentence. Under Rule 4-1.2(a) of the Rules Regulating The Florida Bar, a lawyer is required to abide by her client’s decisions concerning the objectives of representation. Appellate counsel sought an order permitting him to withdraw from representation to avoid an alleged violation of his ethical responsibility to his client. The Supreme Court denied current counsel’s motion to withdraw, holding that there was no ethical violation in requiring counsel to continue to prosecute this appeal for the benefit of the Court in meeting its statutory and constitutional duties.View "Robertson v. State" on Justia Law

On February 14, 2013, the Attorney General received an ethics complaint, alleging possible violations of the Ethics Act by the Speaker of the House of Representatives, Robert W. Harrell, Jr. The complaint was originally submitted by a private citizen to the House Legislative Ethics Committee. That same day, the Attorney General forwarded the complaint to South Carolina Law Enforcement Division (SLED), and SLED carried out a 10-month criminal investigation into the matter. At the conclusion of the investigation, the Chief of SLED and the Attorney General petitioned the presiding judge of the state grand jury to impanel the state grand jury on January 13, 2014. Acting presiding judge of the state grand jury, the Honorable L. Casey Manning, subsequently impaneled the state grand jury. On February 24, 2014, the Speaker filed a motion to disqualify the Attorney General from participating in the grand jury investigation. On March 21, 2014, a hearing was held on the motion after which the court sua sponte raised the issue of subject matter jurisdiction. Another hearing was held, and the court found, as presiding judge of the state grand jury, it lacked subject matter jurisdiction to hear any matter arising from the Ethics Act, and refused to reach the issue of disqualification. The court discharged the grand jury and ordered the Attorney General to cease his criminal investigation. The Attorney General appealed that order to the Supreme Court. After its review, the Supreme Court concluded the circuit court erred in concluding that the House Ethics Committee had exclusive jurisdiction over the original complaint. While the crime of public corruption could include violations of the Ethics Act, the state grand jury's jurisdiction is confined to the purposes set forth in the constitution and the state grand jury statute, as circumscribed by the impaneling order. While the Court reversed the circuit court's order, it "in no way suggest[ed] that it was error for the presiding judge to inquire whether the state grand jury was 'conducting investigative activity within its jurisdiction or proper investigative activity.'" The case was remanded for a decision on whether the Attorney General should have been disqualified from participating in the state grand jury proceedings. View "Harrell v. Attorney General of South Carolina" on Justia Law

Appellant argued that he is entitled to a new trial because the court found that the judge who presided over his conviction and sentencing failed to reside in her judicial district from July 1, 2009, to September 30, 2009. The court held that Minn. Stat. 351.02(4) does not apply to a district court judge residing in Minnesota but outside her judicial district because a district court judge does not hold a "local" office as that term is used in the statute. Accordingly, because this portion of the statute does not apply to the judge in this case, the court affirmed.View "State v. Irby" on Justia Law

In this interlocutory appeal John R. Grele and his former client, Markette Tillman, appealed an order removing him to the California State bar for disciplinary proceedings. The court concluded, under Flanagan v. United States, that it lacked jurisdiction over Tillman's claim where the removal order is nonfinal and not immediately appealable. Tillman has the opportunity to raise the issue on direct appeal. In regards to Grele's petition as to the sanctions order, the court concluded that mandamus jurisdiction is appropriate to consider the sanctions order, that the district court erred in imposing sanctions without notice and a hearing, and that the order should be vacated.View "United States v. Tillman" on Justia Law

Appellant-attorney was criminally prosecuted along with Judge Doe on violations of the campaign finance law. The criminal proceeding was eventually terminated, and the records were sealed. The State Commission on Judicial Conduct subsequently began an investigation into possible judicial misconduct by Judge Doe in the underlying criminal proceeding. Supreme Court granted the Commission’s motion to release the sealed records from the underlying criminal proceeding for use in the investigation. Appellant filed an application to vacate the release order, which Supreme Court denied. Appellant appealed. Meanwhile, the Commission censured Judge Doe for misconduct arising from her judicial election campaign. The Appellate Division dismissed Appellant’s appeal as moot and ordered that the records be resealed. The New York Court of Appeals reversed the order dismissing the appeal as moot and upheld the Commission’s authority to request and receive Appellant’s sealed records, holding that the Commission is authorized to request and receive records sealed under N.Y. Crim. Proc. Law 160.50 for its use in investigations.View "State Comm’n on Judicial Conduct v. Rubenstein" on Justia Law

Jennifer Holmes and James Lindsay entered the home of Laurence Wilkey, Holmes's former boyfriend. They tied him up, beat him, and took a number of items from his home. The State charged Holmes and Lindsay with first degree robbery, burglary, kidnapping, assault, and firearm theft. Holmes and Lindsay argued that they did not intend to commit a felony but were instead repossessing things that Wilkey had originally stolen from Holmes. A jury convicted them on most, but not all, counts. On appeal, Holmes and Lindsay argued that the prosecutor's remarks, particularly during closing arguments, constituted misconduct that prejudiced both defendants. The Court of Appeals agreed that the prosecutor committed misconduct but split as to whether that misconduct caused prejudice. "[G]iven the magnitude of the problem and the lawyers' inability to control their conduct," the Supreme Court agreed with the Court of Appeals' dissent and reversed the trial court. View "Washington v. Lindsay" on Justia Law

Petitioner filed a petition for post-conviction relief (PCR) alleging ineffective assistance of counsel in his underlying criminal case because his lawyers induced him to reject a plea bargain for a much lower sentence "by misrepresenting the potential maximum sentencing exposure petitioner was facing at trial." The superior court appointed a lawyer from the Prisoners’ Rights Office of the Defender General to represent petitioner in that court. The appointed public defender accepted representation and proceeded to represent petitioner throughout the trial court proceeding. The State moved to dismiss the petition under 13 V.S.A. 7134 because it was "a second or successive motion for similar relief on behalf of the same prisoner." The public defender answered that the case did not fit within the statute because the theory on which this petition was based had not been raised in earlier PCR petitions because it was not available at the time of the earlier petitions. The superior court granted summary judgment for the State. Shortly thereafter, the public defender filed a notice of appeal on petitioner’s behalf. In a letter to petitioner, the public defender said she initially thought there were no grounds for appeal, but then said "I changed my opinion and filed a notice of appeal for you." She added, however, that since filing the notice of appeal she discovered the Defender General’s office had a conflict of interest so the case had been assigned to conflict counsel. The first assigned conflict counsel withdrew because her firm had done a merits review for the Defender General on petitioner’s ineffective-assistance-of-counsel claim in connection with a prior PCR action. Counsel concluded that the firm’s prior negative merits review created a conflict of interest. The case was then assigned to attorney Michael Rose. Attorney Rose filed a motion for leave to withdraw, citing Vermont Rule of Professional Conduct 3.1 and case law. Because it became clear during the argument on that motion that the Defender General had not gone through the procedure it typically goes through before seeking leave to withdraw on the basis cited by Attorney Rose, the Supreme Court invited the Defender General to present its position on the motion. Upon further review, the Supreme Court granted Attorney Rose’s motion for leave to withdraw, and it did not appoint new publicly funded counsel. View "In re Bruyette." on Justia Law