ABA Model Rule 3.1

Criminal Defense Ethics: The Aneurysm-Inducing Argument

/ Jack Marshall / 1 Comment

Darrow would understand.

Apoplectic stand-up comic Louis Black has a classic routine in which he describes how a snippet of a conversation he over-heard at an IHOP nearly killed him. The statement, “If it hadn’t been for that horse, I never would have spent that year in college,” made no sense to him at all and kept going around and around in his brain, threatening to cause a fatal aneurysm.

I know exactly how he feels.

A week ago, I read a news account of the election fraud trial of one Julius Henson, a former campaign consultant to ex-Maryland Governor Robert Ehrlich. This was the second trial arising out Ehrlich’s dirty and unsuccessful campaign in 2010 to win re-election over Democrat Martin O’Malley. In the first one, Ehrlich’s campaign manager, Peter Schurick, was convicted of election fraud for approving an election day robocall that went out to African-Americans in Maryland who were registered Democrats, suggesting that they “relax” and stay home, because O’Malley had already won. In the article, it said that Henson’s attorney had offered the defense that the call, which was created by Henson with his wife’s voice on the recording, was not designed to suppress the black vote for O’Malley. It was, argued Edward Smith, intended to prompt them to go to the polls and vote for Erhlich through the use of “reverse psychology.”

WHAT??? Continue reading →

Now THIS Really IS a Frivolous Lawsuit…

/ Jack Marshall / 12 Comments

I have written here before that the legal ethics breach of filing a frivolous lawsuit (prohibited by Rule 3.1 in most state Rules of Professional Conduct) is almost impossible to accomplish, because it requires a lawyer to lack a good faith belief that the suit can prevail. Since bizarre and attenuated theories sometime do prevail, a law suit really has show no merit at all to prompt sanctions. Like this one, for instance. I quote from the Illinois Institute of Continuing Education’s summary:

“The United States Court of Appeals for the Second Circuit, acting sua sponte, found that the appeal filed by three attorneys in Gallop v. Cheney…, claiming that White House and military officials conspired to cover up government involvement in the 9/11 terrorist attacks was frivolous in that it was “brought without the slightest chance of success>’…The court found that the appeal contained a “comprehensive compilation of every rumor, report, statement, and anecdote that may reveal an inconsistency or omission” in official reports….The court stated that the misconduct was compounded by the filing of a motion to recuse the entire panel that was “peppered with disdainful and unsubstantiated conclusions about the panel members’ emotional stability and competence to serve objectively.” The motion accused the judges of having “severe bias, based in active personal emotions arising from the 9/11 attack . . . leading to a categorical prejudgment totally rejecting [Gallop’s] Complaint, out of hand and with palpable animus.”

“The court found the three attorneys jointly and severally liable for $15,000 in fines and ordered them to pay double the government’s costs for both the frivolous appeal and the recusal motion. The court also ruled that whenever one of the attorneys appears before any tribunal in the Second Circuit within the next year, he must alert the court to the sanctions.

“The court declined to sanction the appellant herself because she relied heavily on her lawyers and did not labor under the same legal and ethical obligations to the court as her attorneys.” 

Yup!!!!

 

The case is Gallop v. Cheney, 642 F.3d 364, 370 (2d Cir. 2011)

 

Letterman’s Extortionist Tries A New Theory

/ Jack Marshall / Leave a comment

I suppose you have to give Joe Halderman’s lawyer some credit for coming up with a creative defense. If you don’t think too hard about it, it almost makes sense. In a variation on the “everybody does it” ethical rationalization, Halderman’s bid to avoid prison for hitting up David Letterman for two million dollars in hush money (Halderman’s ex-fiancé was one of  the female employees Letterman used in workplace harem) is based on a “Tiger does it” theory. Or to be accurate, “Tiger’s girlfriend did it.” Continue reading →

Intolerance vs. the Constitution in Ashville, N.C.

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To someone passionately devoted to the belief in God and Christianity, the thought of having one’s city governed by non-believers may be repulsive. Unfortunately for the sensitivities of those facing this dilemma, the founders of the United States of America were quite specific about the irrelevance of religious belief to civic participation and the rights of citizenship. That may not stop some self-righteous political opponents of Ashville, N.C. City Councilman Cecil Bothwell, who says he doesn’t believe in God but who was duly elected in November, from trying to sue the city for its failure to abide by an archaic, and undeniably unconstitutional, state law forbidding atheists from holding office. Continue reading →