Week 9 - Prior Work (and Other Emerging) Conflicts; the Rule 1.8s

Class Notes

Vicarious DQ/Imputation

• Four presumptions

• And six exceptions to imputation - complcated

How much confidential info is required to DQ?

• A lot can be enough

  • Steeel v. GM - court smeall a rate?

  • The “playbook” conundrum

• A little can be enough

  • Not in O’Donnell but in Seyfarth

Material Limitation (punch-pulling) - “significant risk” a representation will be “materially limited” by law firm’s responsibilities/loyalties to 1. another client - current or former, 2. third person, or 3. lawyer’s own interest Rule 1.7a2 (anything undermining a lawyer’s ability to be an objective legal analysis)

Prior work conflicts

• Subtle, UGLY, $.

• Only thing uglier than a prior work conflict? A prior work conflict waiver letter

Maples

• Significant conflict of interest was sullivan’s interest in avoiding damage to its own reputation was at odds with Maples’ strongest argument - that his attorneys had abandoned him

• Have to resolved conflicts, do not try to fix the problem

• 1.8f third party, sullivan and cromwell paying watkins, therefore conflict

• Main Takeaways: Sullivan’s good-hearted attempt to fix problem actually undermined what the court found was the strongest argument (that he had not been abandoned). When you make a mistake talk to the right person promptly

Prior Work Conflicts

• At intake or during engagement:

  • New matter related to firm work product?

  • Actual or alleged mistakes (missed deadlines, sanctions motions)

  • Appeals from matters handled below

  • Motion to withdraw due to perjury

The Rule 1.8s

• Buiness Transactions between client and lawyer

  • Lawyer shall not enter into a business transaction with a client unless:

    • transaction and terms are fair and reasonable to the client and are fully dislcosed in writing that can be reasonably understood AND

    • client is advised in writing in opportunity and desirability of seeking independent legal counsel AND

    • client gives informed consent, in a writing signed by the client

  • Stocks owned by lawyer are usually not applicable to this rule

  • When swtiching from hourly to contingent, treat as 1.8 transaction as well as 1.5

• Use of Information Related to Representation

  • Lawyer shall not use information relating to representation of a client to the disadvantage unless client gives informed consent

• Gifts to Lawyers

  • Lawyer shall not solicit any substantial gift or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift iss related to the client

Maples v. Thomas Background

Introduction to Maples's Case Maples was sentenced to death in Alabama in 1997 after being defended by two underpaid, inexperienced court-appointed lawyers. Two volunteer New York lawyers from a large firm filed his request for postconviction relief, with an Alabama lawyer serving as local counsel only in name.

The Lawyers Leave and the Deadline Passes In 2002, the New York lawyers left their firm without telling Maples or the court, and no one replaced them. When the court denied his petition in 2003, the notices came back unopened, the clerk did nothing more, and the time to appeal ran out.

The Question for the Court Federal courts refused to hear Maples's claims because he missed the state deadline, though everyone agrees he was not to blame. The only question was whether these extraordinary facts gave "cause" to excuse the missed deadline.

The Court's Answer The Court agreed with Maples that his lawyers had abandoned him without permission, notice, or a replacement. It said "no just system" would blame the missed deadline on a man on death row who had no idea he needed to act for himself.

The Volunteer Lawyers and Local Counsel Rule Two Sullivan & Cromwell associates, Jaasi Munanka and Clara Ingen-Housz, represented Maples for free after his conviction. Alabama then required out-of-state lawyers to team up with a local lawyer who shared full responsibility for the case.

Maples's Petition Maples claimed his trial lawyers were ineffective, for example by failing to raise an intoxication defense and failing to prepare for sentencing. The trial court refused the state's request to throw out the petition in December 2001.

The Lawyers Leave Without Notice In summer 2002, Munanka became a federal court clerk and Ingen-Housz took a job with the European Commission in Belgium. Neither told Maples or asked the court for permission to withdraw, and no other firm lawyer stepped in.

Nine More Months Pass For nine months, no Sullivan & Cromwell lawyer sought admission in Alabama or told the court about the change. The two departed lawyers and Butler stayed listed as Maples's only lawyers.

The Returned Mail In May 2003, the court denied the petition without a hearing and mailed copies to the departed lawyers at the firm. The firm's mailroom sent the envelopes back marked "Left Firm," and the clerk made no other effort to reach anyone.

Butler Does Nothing Butler received his copy of the order but did nothing, assuming the New York lawyers would handle the appeal. Meanwhile, the 42-day appeal period ran out on July 7, 2003.

The State's Letter to Maples In August 2003, the state's lawyer wrote directly to Maples in prison, telling him he had missed the deadline and had four weeks to go to federal court. The letter was not sent to any of his listed lawyers.

The Firm Tries to Fix It Maples called his mother, who called Sullivan & Cromwell, and three firm lawyers asked the court to reissue its order to restart the appeal period. The court refused, noting that the departed lawyers were still listed and the new ones were not admitted in Alabama.

Procedural Posture

Maples's Trial Maples was charged with murdering two friends, and only one of his two appointed lawyers had ever worked on a death penalty case. Their pay was capped at $1,000 for preparation and $40 an hour in court.

Conviction and Sentence The jury convicted Maples and voted 10 to 2 for death, the minimum vote Alabama allows. The trial court imposed the death sentence, and the state appeals courts upheld it.

State Appeals Courts Refuse The court said it would not use "subterfuge" to cover for the lawyers' mistakes. Alabama's appeals courts agreed that mailing notice to the listed lawyers was enough, and the US Supreme Court declined to review.

Federal Court Proceedings In federal court, the state argued that Maples lost his claims by missing the state deadline, and Maples said it was not his fault. The trial court ruled against him, relying on an earlier case holding that mistakes by postconviction lawyers are not a valid excuse.

The Eleventh Circuit A divided appeals court agreed with the trial court. Judge Barkett dissented, noting that Alabama had allowed a late appeal in a nearly identical case and that fairness required hearing Maples's claims.

Legal Standard

Alabama's Low Standards for Defense Lawyers Alabama requires court-appointed lawyers in death penalty cases to have only five years of criminal law experience, with no death penalty experience or special training. Those lawyers are also badly underpaid.

No Guaranteed Lawyer After Conviction Almost alone among the states, Alabama does not guarantee a lawyer to death row prisoners who challenge their convictions after the appeal, relying instead on volunteers. As of 2006, most such lawyers came from nonprofit groups or large out-of-state firms, and some prisoners had no lawyer at all.

The General Rule on Missed State Deadlines Federal courts usually will not hear a prisoner's claims if a state court refused to consider them because the prisoner broke a state procedural rule. That bar can be lifted if the prisoner shows a good reason (cause) and real harm (prejudice).

The Court's Assumption Because the Court agreed to decide only one issue, it assumed Alabama's 42-day rule was a valid basis for refusing review. It looked only at whether Maples had cause for missing the deadline.

Lawyer Carelessness Is Not Enough Cause means something outside the prisoner's control blocked him from following the rule. A lawyer's carelessness does not count, because the lawyer acts as the client's agent and the client bears the risk of the agent's mistakes.

Abandonment Is Different When a lawyer abandons a client without notice, the lawyer is no longer acting for the client. The lawyer's failures therefore cannot fairly be blamed on the client.

The Holland Case In Holland v. Florida, the Court held that a federal filing deadline could be extended for fairness reasons, and that a lawyer's serious misconduct might justify it. Ordinary errors like miscounting a deadline do not qualify, but Holland claimed his lawyer had abandoned him.

Justice Alito's View in Holland Justice Alito explained in Holland that there is a key difference between lawyer error, however bad, and a lawyer abandoning a client. A client cannot be held responsible for a lawyer who is not acting as his agent "in any meaningful sense".

Legal Reasoning

The Rule the Court Adopts A client cannot be blamed for the actions of a lawyer who abandoned him. Nor can a client be faulted for failing to act when he has no reason to think his listed lawyers are no longer representing him.

None of the Three Lawyers Was Acting During the entire appeal period, Maples's only listed lawyers were Munanka, Ingen-Housz, and Butler. Without his knowledge, none of them was actually serving as his lawyer.

The Departed Lawyers Ended the Relationship The two associates left at least nine months before the court's order, and their new jobs barred them from representing Maples, which ended their role as his agents. By not withdrawing as required, they left court records showing them as his lawyers, so notices went to them instead of him.

Other Firm Lawyers The state argued that other Sullivan & Cromwell lawyers kept representing Maples, but the record was unclear about what they actually did. Their sworn statements claimed involvement but gave no details about any work done after the two associates left.

Other Lawyers Had No Authority The key facts were clear: the other firm lawyers were not admitted in Alabama and had not entered the case before the deadline. They therefore had no legal authority to act for Maples, so what they did in New York did not matter.

The Firm's Own Conflict After the deadline passed, Sullivan & Cromwell had a conflict, because protecting its reputation clashed with Maples's best argument that he had been abandoned. The firm nevertheless kept the case and blamed the court clerk instead.

Butler Never Really Represented Maples Butler had said from the start that he would play no real role, even though Alabama law required him to share full responsibility. It would be absurd to bar Maples's claims just because Butler signed on as local counsel in name.

Butler's Conduct and the State's Behavior Butler did not even call the firm when he got the court's order, which confirms he was not acting for Maples. The state's lawyer also wrote directly to Maples, which ethics rules forbid when a person has a lawyer, suggesting the state knew Maples was effectively unrepresented.

Maples Had No Way to Know Because lawyers were still listed for him, Maples had no right to receive notice himself, and he received no warning. Had anyone told him in time, he could have filed a simple notice of appeal himself or found new volunteer lawyers.

Fairness and Agency Law Agree The cause requirement respects states' interests while keeping basic fairness at the center of habeas review. Here, agency law and fairness both show that Maples, abandoned without warning, had cause to excuse the missed deadline.