MSU Law Faculty in the News

High Court Justices to Take Up Lawyer Ethics, Errors
Six cases on the calendar will have direct consequences for the practice of law
September 28, 2009
The National Law Journal
By Marcia Coyle

How lawyers do their jobs -- from the type of advice they give clients to the calculation of fees -- moves to the fore in the new U.S. Supreme Court term in six cases that could dramatically alter the day-to-day practice of law.

The justices in recent terms typically have taken two or three cases -- and sometimes none -- involving the legal profession. The six cases this term have roots in the First Amendment, habeas corpus, bankruptcy law, civil procedure, privileged materials and the Sixth Amendment.

"At the beginning of every term, there is an effort to try to paint the term with one brush," said Stephen Vladeck of American University Washington College of Law. "The brush that seems most apt at this point is: This is a term about lawyering."

The cases raise issues about "the unique and various ways lawyers practice law and how the legal system protects lawyers, perhaps even from themselves," said Vladeck.

The unusual number thus far simply may be the result of an upsurge in petitions involving lawyering. But Renee Newman Knake, a professional responsibility scholar at Michigan State University College of Law, suggests another reason: The cases may reflect a larger movement toward greater scrutiny of the legal profession, particularly in the wake of corporate and government scandals involving lawyers.

"Is that why the justices have taken these six cases?" asked Knake, who recently published a paper on the high court's cases. "It's hard to say, but taken together, the cases reflect a significant shift in how the Court prioritizes concerns about the attorney-client relationship and issues of professional responsibility. And, individually, each case has potentially significant consequences for lawyers and their clients."


It would be easy to dismiss Milavetz, Gallop & Milavetz v. U.S. as simply another bankruptcy case on the Court's docket, but that would be a huge mistake, according to G. Eric Brunstad Jr., a partner in the Hartford, Conn., office of Dechert.

"This case could affect all kinds of lawyers who may have occasion to discuss bankruptcy with a client," said Brunstad, who represents Milavetz, the Edina, Minn., law firm that mounted this challenge to the 2005 Bankruptcy Abuse Prevention and Consumer Protection Act.

In the Supreme Court, Milavetz -- supported by the American Bar Association and the Commercial Law League of America -- argues that three sections of the 2005 act violate the First Amendment and lawyers' ethical duties: the inclusion of lawyers as "debt relief agencies," the requirement that anyone who provides bankruptcy assistance for payment must advertise as a "debt relief agency" and a provision prohibiting "debt relief agencies" from advising clients "to incur more debt in contemplation of bankruptcy."

The United States defends the first two as necessary to achieve Congress' purpose of eliminating abuse in the bankruptcy system and argues that the restriction on advice about incurring more debt should be narrowly interpreted to apply only to advice intended to abuse the system.

Two other cases involve lawyers' duties to their clients, but in very different contexts.

In Padilla v. Kentucky, Jose Padilla, a lawful permanent resident for four decades, seeks to overturn a Kentucky Supreme Court decision that he could not bring an ineffective assistance of counsel claim based on his defense lawyer's erroneous advice that accepting a plea agreement on charges of transporting marijuana would not affect his immigration status. His lawyer never investigated the matter and, after Padilla pleaded guilty, the government moved to deport him.

In the Supreme Court, Stephen Kinnaird, a partner in the Washington, D.C., office of Paul, Hastings, Janofsky & Walker, argues that the state court was wrong to hold that this "collateral consequence" of his plea -- deportation -- is outside the scope of the Sixth Amendment right to effective counsel, whether the lawyer failed to advise or offered wrong advice on the consequences.

Kinnaird contends that the test for ineffective assistance of counsel -- Strickland v. Washington -- applies here. A lawyer's wrong advice on a legal issue he has not adequately researched is "objectively unreasonable by any measure," he said.

Kentucky Assistant Attorney General William Long Jr. counters, "For a guilty plea to be voluntary in a constitutional sense, a defendant need only understand the direct consequences of his or her plea."

The third case in this set, Mohawk Industries v. Carpenter, is far removed from the criminal arena. Norman Carpenter sued Mohawk Industries Inc., claiming he was fired because he refused to recant a report that the company had hired illegal aliens as temporary workers. During discovery, he sought information from an interview between him and Mohawk's outside counsel, part of Mohawk's internal investigation.

After the trial court ordered Mohawk to provide the information, Mohawk filed an interlocutory appeal. The 11th Circuit Court of Appeals dismissed, holding that discovery orders relating to attorney-client privilege are not collateral orders subject to immediate appeal.

Mohawk's counsel, Randall Allen of Alston & Bird in Atlanta, says waiting until final judgment to appeal the discovery order here would, in effect, make the appeal unreviewable because "there is no way to unscramble the eggs scrambled by disclosure."

But his opponent, Jonathan Craig Smith of Koskoff Koskoff & Bieder in Bridgeport, Conn., and the United States argue that only compelling public interest issues, such as constitutional questions, should be immediately appealable.

A group of federal judges, in a brief authored by American's Vladeck, raise other concerns if Mohawk wins.

"Courts of appeals, already enormously overworked, will have to take on a not insignificant number of appeals at early stages of litigation, and there's a strong policy disfavoring these piecemeal appeals," said Vladeck.


Lawyers performing badly give rise to two cases: Wood v. Allen, a case involving an ineffective assistance of counsel claim against a lawyer who, with four months' experience, handled the penalty phase of an Alabama capital murder trial, and Pottawattamie v. McGhee, in which two Iowa prosecutors, who fabricated evidence and used it in the murder trial of two men, seek immunity from a civil rights damages suit by the wrongfully convicted men.

Holly Wood's high court counsel, Kerry Scanlon of the Washington, D.C., office of Kaye Scholer, attacks two rulings: the state court's rejection of Wood's claim that his lawyer was ineffective because he terminated investigation into Wood's mental deficiencies in the face of facts "that any reasonable defense lawyer would have understood required follow-up," and the 11th Circuit's reversal of federal habeas relief granted Wood when it failed "to assess the reasonableness of the state court decision in light of the entirety of the state court record."

Alabama Solicitor General Corey Maze counters that the state court found Wood's lawyer decided against further investigation -- a strategic decision. That finding is presumed reasonable unless rebutted, which he argues Wood was unable to do.

The Wood case, according to some death penalty litigators, highlights two frequent problems in Alabama death cases: unqualified trial counsel and state court adoption -- sometimes verbatim -- of findings of fact proposed by the prosecution.

The latter issue is the focus of an amicus brief filed by the National Association of Criminal Defense Lawyers.

"The point we wanted to get across is federal courts should not be according deference to state court findings if those findings reflect a rubber-stamping of the state's findings," said the brief's author, Jonathan Marcus of Washington, D.C.'s Covington & Burling. "In this very case, we point out two orders -- in the first, the state's proposal was adopted verbatim; the second had some modifications but not on the key findings."

The prosecutors' case pits two high court veterans: Jeffrey Sarles of Mayer Brown in Chicago, for the county and prosecutors, and former Solicitor General Paul Clement, now in King & Spalding's Washington, D.C., office, for the two wrongfully convicted men.

Sarles argues that procuring false testimony does not violate the Constitution, and under the Supreme Court's "function" test for immunity, the prosecutors are entitled to absolute immunity for the use of false testimony at trial because, at that stage, they are advocates of the state.

Calling the prosecutors' conduct here "truly unconscionable," Clement counters that prosecutors who fabricate evidence before probable cause attaches are no less culpable or more entitled to immunity than a police office who violates the Constitution by duping an unknowing prosecutor into using fabricated evidence."

Clement will make a second appearance in the last of the six cases -- a case involving a lawyer's job well done.

In Perdue v. Kenny A, the justices will decide whether an attorney fee awarded under a federal fee-shifting statute can be enhanced because of the results obtained by the litigation and the lawyers' outstanding performance.

A federal judge in a Georgia class action involving abuse and neglect of the state's foster care children awarded the plaintiffs attorneys a basic -- or lodestar -- fee of $6 million and then bumped it up to $10.5 million because of the lawyers' performance -- the best the judge had seen in his 27 years on the bench. The 11th Circuit affirmed.

In the Supreme Court, Mark Cohen of Troutman Sanders in Atlanta, representing Georgia's governor, argues that the enhancement is double-counting because results obtained and lawyer performance are already elements in the lodestar calculation.

Clement rejects this bright-line approach, countering that Supreme Court decisions and the legislative history of the fee-shifting statute indicate that enhancements may be justified in exceptional cases.

The case has resulted in an unusual alliance of conservative and liberal public interest legal organizations supporting Clement's lawyer clients. The United States, more than half the states as well as local government groups support Georgia.