The Supreme Court turns to the law governing lawyers

Renee Knake at Legal Ethics Forum notes that the Supreme Court has turned much of its attention this term to the law governing lawyers. HERE is her list

(1) Do provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act regulating attorneys’ advice to clients and mandating certain advertisement disclosures violate the First Amendment? Milavetz, Gallop & Milavetz, P.A., et al. v. United States, 541 F.3d 785 (8^th Cir. 2008)

(2) Is an attorney’s faulty advice grounds for setting aside a criminal defendant’s guilty plea? Padilla v. Commonwealth of Kentucky, 253 S.W.3d 482 (Ky. 2008)

(3) When, if ever, does a novice attorney’s inexperience constitute ineffective assistance of counsel? Wood v. Allen, 542 F.3d 1281 (11^th Cir. 2008)

(4) Should a court’s order compelling production of privileged materials be immediately appealable? Mohawk Industries, Inc. v. Carpenter, 541 F.3d 1048 (11^th Cir. 2008)

(5) Can quality of performance and results obtained justify an enhancement to an attorney’s fee award under a federal fee-shifting statute? Perdue v. Kenny A., 532 F.3d 1209 (11^th Cir. 2008)

(6) May a prosecutor be liable for civil damages for procuring false testimony and introducing that evidence against a criminal defendant at trial? Pottawattamie County v. McGhee, 547 F.3d 922 (8^th Cir. 2008)

Prof. Knake's article discussing the case and their potential impact on the practice of law is HERE.

With Roberts in the lead my basic reaction is always "how much damage will they do?"

Anyway, here is my guess on how the Court will rule. May as well go out on a limb early:

1) NO [ 11 U.S.C. 526 (a) (4) prohibits only pre-filing borrowing that is intended to defraud creditors, not, for example, refinancing a loan in order to reduce interest rates on debt preparatory to filing a plan of reorganization under Chapters 13 or 11.]

2) NO [Even if defendant's attorney failed to tell immigrant Vietnam Vet and marijuana dealer that he faced deportation as a consequence of his guilty plea, that failing was collateral to guilt or innocence and is not comprehended by the 6th Amendment right to effective assistance of counsel.]

3) NOT HERE [Only incompetence in the form of a plainly evident failure to function as an adversary is ineffective assistance of counsel. Here habeas petitioner and death row defendant was of low intelligence but his history as a fork lift operator shows that he was capable of independent functioning, therefore reasonably found by the state court to not be mentally retarded and ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304 (2002).

4) YES [But only if an order to disclose privileged communications would render appeal in the event of error an ineffective remedy, creating harm such as substantial damage to to reputation which is irreparable by a remedy at law.]

p.s. - Oral argument was October 5, 2009. Though Scalia was skeptical Roberts seemed sympathetic to the ABA position, expressed in an amicus brief - that disclosure orders should be immediately appealable where, as here, the claim is that the attorney client privilege was waived. As I point out above, disclosure may make the issue moot, if that's the right thing to say when you mean that the horse is out of the barn. - gwc 10/6/09

5) NOT HERE. [City of Burlington v. Dague, 505 U.S. 557 (1992) permits fees in excess of the lodestar only in "rare" cases - and this is not one. Plaintiffs' counsel for class of foster children were awarded $10 million at hourly rates from $75-$495, plus $4.5 million enhancement payable by the State of Georgia. Counsel is entitled only to a reasonable fee payable by defendant state, not to a result-enhanced fee such as a prevailing private party might agree to pay from its own funds.]

6) NO [What part of absolute prosecutorial immunity from civil liability don't you understand?]

p.s. September 24, 2009. SCOTUS Blog has posted links to amicus briefs by the Solicitor General in Padilla v. Kentucky, Mohawk Industries v. Carpenter, and Pottwattomie County v. McGhee.

No surprises: in Padilla the conduct of the defense attorney is found ineffective but inconsequential because defendant cannot prove a rational person would not have accepted the plea even with knowledge of the deportation consequences; in Mohawk Industries the discretion of the Courts of Appeals to issue mandamus is deemed adequate assurance against erroneous discovery orders; in McGhee the "execrable" conduct of the lawyer is deemed insufficient to overcome the policies in favor of absolute prosecutorial immunity. - gwc

p.s. A SEVENTH case on the law governing lawyers, Astrue v. Ratliff has been taken by the Supreme Court. The question is whether the fee in an Eqal Access to Justice case belongs to the client or to the lawyer.

Prof. Renee Knake's preview essay of the lawyering issues this term can be found HERE.