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Thursday, October 06, 2011

The Curious Case of Rule 8.3

As has been reported elsewhere, at argument on Tuesday the Supreme Court Justices seemed astonished by attorney lapses in the Alabama death penalty case Maples v. Thomas.  Justice Scalia asked what would happen to the attorneys in question if they were found to have "abandoned" their client.  His question came at an opportune time in my Professional Responsibility class, as we had just finished a unit on attorney competence, including discussion of MRPC 8.3, which mandates that members of the bar report ethical violations that raise "a substantial question" about another attorney's "fitness as a lawyer."  Justice Scalia's query underlined some of my own questions about the operation of this rule.

For those who have not yet read it, here is the exchange between Justice Scalia and the attorney for the State of Alabama, courtesy of the transcript on the Supreme Court web site:

JUSTICE SCALIA: "If we find that these lawyers did abandon their client, will there be some sanction imposed upon them by the bar? I often wonder, just as when we find that there's been inadequate assistance of counsel in a capital case, does -- does anything happen to the counsel who have been inadequate in a capital case?"

MR. NEIMAN: "Your Honor, I suppose it would depend on exactly what the allegations are -"

JUSTICE SCALIA: "Have you ever heard of anything happening to them? Other than they're getting another capital case?"


MR. NEIMAN: "Your Honor, I have not. Certainly the rules provide that a breach of the rules of professional responsibility would be sanctionable by a State bar, both against the Alabama attorney here and the New York attorney."

 Certainly, it would be understandable that not every finding of ineffective assistance of counsel (IAC) would lead to a referral to bar counsel.  In a system in which review of constitutional violations in death cases may hinge on a finding of ineffective assistance of counsel, courts may be loath to refer counsel for disciplinary hearings in cases of run-of-the-mill IAC.  However, courts have sometimes noted egregious attorney misconduct, on the part of both defense counsel (Holland v. Florida) and prosecutors (Connick v. Thompson).

That's why I'm perplexed by the lack of clarity here.  And, more generally, I have wondered about the workings of Rule 8.3.  There are few reported decisions involving the rule, and little scholarship on it, although in class I do pose a hypo involving a supervisor from this piece by Nathan Crystal.

It would be interesting to have more empirical information about Rule 8.3--beginning with the number of reports in each jurisdiction, and the nature of violations reported.  Beyond that, qualitative research might reveal the professional norms affecting the workings of the Rule.  I welcome other's thoughts about this exchange from the Maples argument, and about the operation of Rule 8.3.


Posted by GiovannaShay on October 6, 2011 at 10:39 AM | Permalink


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On a related note, there is a legal requirement in California that when judges reverse due to lawyer misconduct, the judge must notify the bar. When the State Bar recently surveyed all the prosecutorial misconduct cases over the last decade, they realized that many judges weren't complying with the law. For their part, the judges say they weren't always aware of the requirement. (Now that the requirement is well known, will judges be more hesitant to officially find such misconduct?)

California statutory law also requires self-reporting if a reversal of judgment is based in whole or in part by misconduct, grossly incompetent representation, or willful misrepresentation by an attorney.

(As of today, California doesn't have a 8.3 rule; we require only self-reporting upon certain conditions. That may change, because the new draft rules have a 8.3 rule but one that is limited to criminal conduct.)

Posted by: John Steele | Oct 6, 2011 2:00:01 PM

I've seen decisions in some cases that order a copy be filed with the state bar association but never in this context.

I know in certain immigration contexts there is a requirement that proof that a complaint was filed with the bar association in order to seek relief on IAC grounds. Seems like a similar rule should be in place in criminal contexts, to prevent the altogether to common practice of "friendly" IAC claims.

Here I'm not positive exactly what I'd do with the NY lawyers, although notifying the Court in a criminal case of a change of address seems like a pretty basic duty. The Alabama lawyer should certainly be disbarred. Signing on as attorney of record is a representation to the court. Your representations to the court must be true; you can't just say, "oh no one takes these things seriously."

Posted by: Brad | Oct 6, 2011 1:21:23 PM

This precise question came up at a CLE put on by CU and DU earlier in the week. Per Melissa Hart, she was unaware of any ethics proceedings initiated against an attorney who was the subject of inadequate counsel allegations.

Posted by: Anon good nurse! | Oct 6, 2011 12:33:23 PM

even after reading i still am curious about that case.

Posted by: Suffolk Lawyer | Oct 6, 2011 12:32:27 PM

Giovanna, it's a great question but one that, in my view, can't be answered without a lot more detail than the news accounts are offering.

Based on my experience (including dealing with the processing of mail addressed to departed attorneys), the range of plausible scenarios is very wide. Normally when a lawyer departs there is a systematic effort to identify all the matters the lawyer worked on and to ensure that loose ends are prevented (e.g., proofs of service, general appearances, notice to opponents and courts, etc.). Did that happen here? And is it really possible that at S&C there was no partner on the proof of service? That strikes me as rather odd. In general, though, I'm hesitant to reach for "intentional abandonment" or "unfit to practice" if an explanation of "ordinary, albeit highly embarrassing, bureaucratic or administrative failure" will explain the evidence.

For a case raising somewhat similar issues, see In re Aguilar. An associate departed a firm and no one showed up at an oral argument before the Supreme Court of California. (Ouch.) The associate and the partner tried to blame each other. The aftermath wasn't pretty.


Posted by: John Steele | Oct 6, 2011 11:12:51 AM

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