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A blog by members of the Wake County Bar Association/Tenth Judicial District Bar's Professionalism Committee members.

 

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Two Unrelated Professionalism Gold Nuggets from the North Carolina General Rules of Practice

Posted By Colleen Glatfelter, Monday, April 17, 2017

By Ted Smyth, Cranfill Sumner & Hartzog, LLP

 

The North Carolina General Rules of Practice are somewhat publicity shy “B” listers in the celebrity world of famous and oft-quoted statutes and rules.  However, two of them in particular deserve some star power in the realm of professionalism, and this writer accordingly so lobbies herein.

 

RULE 16. WITHDRAWAL OF APPEARANCE

 

No attorney who has entered an appearance in any civil action shall withdraw his appearance, or have it stricken from the record, except on order of the court.  Once a client has employed an attorney who has entered a formal appearance, the attorney may not withdraw or abandon the case without (1) justifiable cause, (2) reasonable notice to the client, and (3) the permission of the court.  (See Smith v. Bryant, 264 N.C. 208, 141 S.E.2d 303).

 

[Observations: This Rule is highlighted for two reasons.  First, it sets forth in elegant simplicity that it takes an order to properly withdraw from representation in a civil action, and lays out the three essential requirements to do it properly.  Note here that some thinking and some advance planning need to go into the logistics of this process, in fairness to the client and in planning for the awkward circumstance of needing to disclose sufficient facts to support the motion, without prejudicing your client by disclosure of sensitive information.  This can be a much harder task than it sounds.

 

Second, this Rule effectuates, in this writer’s opinion, the underappreciated option, after one has been hired, but not too far down the road thereafter, to honestly and objectively evaluate the state of a representation of a client.  Some red flags for this writer: (1) heavy pressure to do something you have repeatedly strongly recommended against or declined to do; (2) highly stressful interactions that could probably be alleviated with a reset button using a new lawyer - though, many such problems are just intractable and not lawyer-centric; (3) a client who absolutely steadfastly refuses to hear or acknowledge the potential for an adverse outcome or result; or (4) you just absolutely completely dread working on the case and you haven’t figured out exactly why, but it likely involves personality dissonance.  Many cases are just not going to be enjoyable by their very nature, but if they seem largely within the realm of (1)-(4) above, don’t forget you can consider a possible withdrawal as an option, or raise that specter with the client.]

 

RULE 12: COURTROOM DECORUM (Edited Down to its Most Professionalism-Related Provisions)

 

* * * *

 

Business attire shall be appropriate dress for counsel while in the courtroom.

 

All personalities between counsel should be avoided.  The personal history or peculiarities of counsel on the opposing side should not be alluded to.  Colloquies between counsel should be avoided.

 

Adverse witnesses and suitors should be treated with fairness and due consideration.  Abusive language or offensive personal references are prohibited.

 

The conduct of the lawyers before the court and with other lawyers should be characterized by candor and fairness.  Counsel shall not knowingly misinterpret the contents of a paper, the testimony of a witness, the language or argument of opposite counsel or the language of a decision or other authority; nor shall he offer evidence which he knows to be inadmissible.  In an argument addressed to the court, remarks or statements should not be interjected to influence the jury or spectators.

 

Suggestions of counsel looking to the comfort or convenience of jurors should be made to the court, out of the jury’s hearing.  Before, and during trial, a lawyer should attempt to avoid communicating with jurors, even as to matters foreign to the cause.

 

Counsel should yield gracefully to rulings of the court and avoid detrimental remarks both in court and out.  He [or she!] should at all times promote respect for the court.

 

[Observations: These admonishments represent a common sense compilation of things that make you look bad (and thus potentially hurt both your client and the profession) and/or would anger you if implemented by the other side in an improper attempt at unfair advantage.  Whatever it is, someone else has tried it long ago, and for good reason, it is proscribed today.]

 

~~~~~

 

 *Any opinion or views expressed in blogs posted on this site are those of the identified author and not the Committee as a whole

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Payoff for Professionalism

Posted By Colleen Glatfelter, Wednesday, April 5, 2017

By Doug Brocker, Chair of the Professionalism Committee

What goes around, comes around -- Most people use this expression as a warning not to do bad things to others because a bad act may be done to you later in return.  The same principle applies for acts of professionalism, but in a positive sense.  Consistently treating others with professionalism most often pays off with professional acts extended back to you.  This principle applies to actions toward clients, judges, staff, as well as opposing parties and counsel.  

Portions of the Creed of Professionalism of the Wake County and Tenth Judicial District Bars is instructive on this issue:

To my colleagues in the practice of law, I offer concern for your welfare. As we work together, I will respect your personal and family commitments. I will share my learning and experience so that we may all improve our skills and abilities.


To the courts and to those who assist them, I offer respect, candor, and courtesy. I will respect and strive to improve the judicial process. I will serve as an officer of the court, encouraging respect for the law and avoiding the abuse or misuse of the law, its procedures, its participants, and its processes.


To opposing parties and their counsel, I offer honesty, fairness, and courtesy. I will seek truth and strive to resolve our clients’ disputes in a dignified manner. I will pursue the most efficient and least costly solutions to problems and avoid unnecessary delay.

Consider one not so hypothetical example:  Attorney A and Attorney B are frequently opposing counsel in often hotly contested matters.  Attorney B inadvertently files a pleading with the Court that is proper on its face but inconsistent with a prior discussion and agreement with Attorney A several months before.  Rather than filing an accusatory motion or other responsive pleading and likely damaging their relationship, Attorney A contacts Attorney B and has a frank but professional discussion reminding him of the prior conversation and the inconsistent information in the document he filed with the court.  As a result, Attorney B promptly files an amended pleading with the Court correcting the inadvertent error, obviating the need for what likely would have been a contentious court intervention on the issue.

Fast-forward about a year later in an entirely unrelated matter in which Attorney A and B again are opposing counsel.  In this case, Attorney A files an appeal of an adverse decision to her client.  However, a young associate in her office inadvertently misreads or misunderstands the requirements and serves opposing counsel but does not file the appeal within the time limit, as required in the applicable rule.  Rather than filing a motion to dismiss the appeal, which likely would be denied based on excusable neglect, Attorney B convinces his client not to pursue the issue and to defend the appeal on the merits.  Attorney B informs Attorney A after the decision has been made not to pursue a dismissal.  Again, Attorney B’s professionalism and courtesy to Attorney A avoids potentially permanently damaging their ongoing relationship and eliminates the need for court intervention, without likely changing the result to his client.    

In the future, you may find yourself in a situation like the above example, where you need an act of professionalism and courtesy from a colleague or opposing party.  It’s yet one more reason to consistently act with professionalism in all your dealings with clients, colleagues and opposing parties and counsel. Remember the old saying: what comes around goes around – and that can be a good thing.  

~~~~~

 

 *Any opinion or views expressed in blogs posted on this site are those of the identified author and not the Committee as a whole

 

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Have You Hugged Your Trust Account Oversight Officer Today?

Posted By Colleen Glatfelter, Thursday, March 23, 2017

By David Smyth, Brooks Pierce McLendon Humphrey & Leonard LLP  

 Have you hugged your Trust Account Oversight Officer today?  You should.  Wait.  Do you even have a Trust Account Oversight Officer?  Maybe you should consider getting one.  Last June, the N.C. Supreme Court approved amendments to the trust accounting rules, including Rule 1.15-4: Alternative Trust Account Management Procedure for Multi-Member Firms.  The rule allows appointment of such an officer to “oversee the administration of any such trust account in conformity with the requirements of Rule 1.15.”  The rule is technically voluntary, but there are good reasons to take advantage of its provisions.

Here’s some background: In the past, faced with misconduct or negligence in trust account management at multi-member firms, the State Bar has at times faced a quandary.  That is, if all of a law firm’s partners are in charge of the trust account, is it true that effectively none of them are in charge?  Put another way, if a single partner’s actions or omissions cause losses from a trust account, can the other partners fairly be held to answer for those losses?  Those are tough questions that can be extremely hard depending on the circumstances.  The other partners might reasonably argue that they were far too removed from the problems to be held accountable.

Enter Rule 1.15-4.  Now a multi-member firm is allowed to designate a Trust Account Oversight Officer (“TAOO”) to be the partner on the hook for administration of a law firm’s trust account.  In short, the rule allows for one throat to choke – and ends the quite plausible deniability for the rest of the partnership – if something goes wrong.  Of course, there are limits to the limits.  Lawyers who serve as primary counsel for a particular matter cannot deny responsibility for trust account issues associated with that matter.  See Rule 1.15-4(b). 

Also, a TAOO will have some significant and ongoing education obligations to maintain compliance with Rule 1.15-4(c).  Those obligations and the potential liability that could result may not be attractive features.  But opting out of Rule 1.15-4 and failing to designate such an officer could yield similar liability for every partner in the firm in the event that problems with a trust account are uncovered someday.

Weigh the benefits and risks, and think about hugging your TAOO.

~~~~~

 

 *Any opinion or views expressed in blogs posted on this site are those of the identified author and not the Committee as a whole

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Money Gone Missing: When a Third Party Steals Trust Funds

Posted By Colleen Glatfelter, Thursday, March 2, 2017
Updated: Tuesday, March 7, 2017

By Brooke Ottesen, The Brocker Law Firm, P.A.

 Under Rule 5.3, a lawyer has an obligation to properly supervise nonlawyer assistants who have access to the trust account. Thus, if that nonlawyer assistant embezzles entrusted client funds, the lawyer has a professional responsibility to replace the funds. What about when the loss occurs through fraud by an unaffiliated third party?

Does a lawyer have a professional responsibility to replace funds stolen from his trust account by an unaffiliated third party where the bank honored counterfeit checks presented by the third party?

Formal Ethics Opinion, 2015 FEO 5, was adopted in October 2015 and provides:

…when funds are stolen from a lawyer’s trust account by a third party who is not employed or supervised by the lawyer, and the lawyer was managing the trust account in compliance with the Rules of Professional Conduct, the lawyer is not professionally responsible for replacing the funds stolen from the account.

The Opinion advises that lawyers must still investigate the matter, take steps to prevent further loss to entrusted funds, and make every effort to remedy the situation including: “…researching the law to determine if Bank is liable; communication with Bank to discuss Bank’s liability; asking Bank to determine if there is insurance to cover the loss; considering whether it is appropriate to close the trust account and transfer the funds to a new trust account; and working with law enforcement to recover the funds.”

Note that the Opinion requires that the lawyer “was managing the trust account in compliance with the Rules of Professional Conduct” before he is relieved of the duty to replace the stolen funds.  While the trust accounting rules may not be burdensome, they are specific.  One area where we see lawyers consistently missing the mark is by failing to reconcile the trust accounts quarterly and by failing to send a written accounting of funds to clients, annually and upon final disbursement.  The opinion also clarifies that “substantial compliance” would be sufficient to relieve the lawyer of the duty to reimburse the account, so it is likely that a mere technical violation of the Rules, such as failure to keep proper-sized cancelled check images, would not trigger the reimbursement requirement.

RPC 191

Compare this Opinion with RPC 191 which requires a lawyer to reimburse his trust account for any losses caused by disbursing before funds are irrevocably credited where the lawyer disburses against provisionally credited funds. In that case, if third party fraud prevented the funds from being irrevocably credited and the attorney disburses prior to that point, the attorney must reimburse the client funds.

Does a lawyer have a duty to replace stolen funds from the lawyer’s trust account when the theft occurs as a result of an unaffiliated third party gaining illegal access to lawyer’s computer and transferring the trust account balance to the third party’s account?

It depends upon whether reasonable security measures were in place.  2015 FEO 6 provides that the lawyer is not professionally obligated to replace the stolen funds as long as he has “taken reasonable care to minimize the risks to client funds by implementing reasonable security measures in compliance with the requirements of Rule 1.15.” 2011 FEO 7 provides some of those affirmative duties including:

  • educating himself regularly on the risks of online banking;

  • actively maintaining end-user security;

  • using encryption and security software;

  • hiring an IT professional to advise the lawyer and firm employees; and

  • insuring all staff members receive training and follow the security measures adopted by the law firm.

    Under the above two circumstances, may a lawyer deposit his own funds into the trust account while pursuing other remedies?

    As a general rule, there is a prohibition on commingling funds:  Lawyers should not deposit personal funds into the lawyer’s trust or fiduciary accounts.  There are, however, various exceptions to the rule which permit a lawyer to deposit personal funds into a trust account including funds sufficient to open or maintain an account and others which allow the lawyer to fulfill his duty to safeguard entrusted funds.

    Although it is not required for a lawyer to deposit his own funds into the trust account under the circumstances described in 2015 FEO 6, the opinion permits a lawyer to do so.  A lawyer may replace the stolen funds with his own, until the funds may otherwise be recovered from the bank, insurance, or elsewhere. The opinion provides that if the lawyer decides to deposit his own funds, the lawyer must make sure the trust account reflects the:

  • source of the funds;

  • reason for the deposit;

  • date of the deposit; and

  • client name for which the funds were deposited.

    In short, under these circumstances involving an unaffiliated third party, a lawyer may not have a professional responsibility to reimburse the stolen funds. However, the lawyer (1) may still have a legal responsibility to do so; and (2) must take certain steps which include reporting the theft to the NC State Bar’s Trust Accounting Compliance Counsel.

~~~~~

 

 *Any opinion or views expressed in blogs posted on this site are those of the identified author and not the Committee as a whole. 

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Does Your Report Pass the “Tell” Test?

Posted By Colleen Glatfelter, Tuesday, February 14, 2017

By:  Leanor Bailey Hodge, Professionalism Committee Member

The legal profession is a self-regulating profession.  One of the ways in which the legal profession is self-regulating is that lawyers have an obligation to report ethical misconduct of other members of the profession.  N.C. Rules of Prof’l Conduct Rule 8.3 requires a “lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects” to inform the North Carolina State Bar or the court having jurisdiction over the matter. 

This responsibility should not be taken lightly.  Those who have had occasion to make a report pursuant to Rule 8.3 have indicated that it is one of the most difficult professional actions they have had to undertake in their career.  In a profession where one often has to deliver bad news, this really says a lot about the gravity associated with the duty to make a report of misconduct by another lawyer. 

How do you know when you are under an obligation to report another attorney?  The “Tell” test can help you make this determination.  There are three parts to the “Tell” test. 

First, is a report to the State Bar required?  The rule requires that you have actual knowledge of a violation.  You should not report based on something you have only heard about through others.  The comment to Rule 8.3 gives additional guidance to the lawyer who must determine whether a report of misconduct is required pursuant to the Rule.  A report is not required where it would involve a violation of Rule 1.6 nor does a duty to report pursuant to Rule 8.3 apply to a lawyer retained to represent a lawyer whose professional conduct is in question.  Further the ethical duty to report lawyer misconduct cannot be a negotiation point.  For example, a lawyer may not condition settlement of a civil dispute on an agreement not to report lawyer misconduct. 

Second, what type of conduct should be reported?  The rule states the conduct must raise a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer.   Although honesty and trustworthiness are not specifically defined by the Rules of Professional Conduct, honesty is defined by Merriam-Webster’s online dictionary as “a:  fairness and straightforwardness of conduct” and “b: adherence to the facts” and one is trustworthy when he or she is able to be relied upon to do or provide what is needed or right – deserving of trust.  According to the comment to this Rule, “a measure of judgment” is required in complying with the provisions of Rule 8.3.

Additionally, the reporting obligation is limited to “those offenses that a self-regulating profession must vigorously endeavor to prevent.”  Comment [4], N.C. Rule of Prof’l Conduct Rule 8.3 (2003).  Some obvious examples that require reporting are situations involving another attorney’s criminal misconduct, knowing misrepresentations to a court or others, and fabrication of documents.  Perhaps a less obvious example deemed by the State Bar as implicating Rule 8.3 is another attorney’s disbursement of conditionally delivered settlement proceeds without satisfying all conditions precedent if the disbursement was made in knowing disregard of such conditions and if such information is not confidential.  Additionally, a lawyer must report a violation of the Rules of Professional Conduct as required by Rule 8.3 even if the lawyer’s unethical conduct stems from mental impairment.

Third, do I have to report if it will not be kept confidential?  Yes.  If a lawyer is required to make a report of misconduct to the State Bar pursuant to Rule 8.3, the State Bar’s regulations provide that the State Bar may keep confidential the identity of the lawyer or judge who reports such alleged misconduct.  Even if such a request is made, the State Bar may reveal the identity of a reporting lawyer or judge where such disclosure is required by law or by considerations of due process where identification is essential to preparation of the lawyer’s defense to a grievance or disciplinary complaint.

It is a very difficult thing to have to make a report of misconduct about a fellow lawyer.  If you are ever confronted with such a situation, make sure that you conduct the above, three-part “tell” test to confirm what your ethical obligations are before deciding how you will proceed.  And, remember, you can always contact the State Bar’s Ethics Department for advice about whether you have a duty to report pursuant to Rule 8.3.

~~~~~

 

 *Any opinion or views expressed in blogs posted on this site are those of the identified author and not the Committee as a whole. 

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New Year Checkup for Your Practice

Posted By Colleen Glatfelter, Wednesday, February 1, 2017

By Deanna Brocker, The Brocker Law Firm, P.A.

It’s 2017, and many of us are already losing our battle to keep our resolutions.  Often, New Year’s resolutions are about personal growth, and that’s great.  It is hard to keep those resolutions when so many of them are not specific or concrete enough.  For example, we say we’ll go to the gym more, lose some weight, be a better person, and think more positively.  Unless your goals are specific, it can be hard to measure whether you have achieved any of these goals.  But what about your law firm? The new year is also a good time to take stock and perform a checkup of your firm.  Here is a check list with enough specificity to hopefully make it easier to stick to these resolutions:

1.      Trust Account – New rules were adopted in June of 2016.  If you haven’t already, read the new rules.  Then print out the three report forms that you will need to use from the State Bar’s website, www.ncbar.gov.  There is a monthly reconciliation report, a quarterly reconciliation report, and a quarterly review report.  Finally, vow to review the previous month’s trust records by the 15th of the following month.

2.      Insurance – Review your liability insurance, both your limits and deductible, and be sure you think they are sufficient, given the state of your practice in 2016.  Review your business/property insurance policy as well to be sure it covers any new purchases or property. Finally, with the prevalence of Ransomware, consider obtaining a cyber security insurance policy. These days, it’s becoming more a matter of when you will be hacked, rather than if. Lawyers Mutual has these kind of policies and can explain what they cover and why you may need one.

3.      Cyber Security – Make an appointment to sit down with your IT professional and ask them some questions.  How is my data being protected?  Tell me about my firewall.  Do I have two different ways to back up my data?  How can I keep client information on my computer safer? Do I need two-step authentication or encryption on laptops and other mobile devices such as employee smart phones and tablets where client information can be accessed?  What can I do to protect client information if one of those items is lost or stolen?

4.      Tax Planning – Once your CPA has a bit more time, make an appointment to talk about how your firm did last year, and whether you can do anything to save on taxes.  Discuss whether there are any employee benefits (401K, Health Reimbursement Accounts, Health Savings Accounts, etc.) that can help your business save in taxes.

5.      Marketing Assessment – List all of the ways in which you market your business.  Then figure out if any of those marketing tools is not paying off, and cut it.  Finally, think about how you can expand into at least one new market and brainstorm the best ways to reach those folks.

6.      Plan to Save – This sounds like a vague goal, but it doesn’t have to be.  Make an appointment with a financial advisor and figure out a new way to save, especially for retirement. Auto draft a certain amount monthly into a retirement account. If you are 50 years old, then you can step up savings into your 401(k) or other retirement accounts (yes, we only know this because we’re at that stage).  Consult your CPA on how you can maximize your retirement savings while saving taxes at the same time.

7.       Appreciation – Meet with your employees and let them know how much you appreciated their hard work this past year.  Start 2017 off on the right foot.

~~~~~

 

 *Any opinion or views expressed in blogs posted on this site are those of the identified author and not the Committee as a whole. 

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With Great Power Comes Great Responsibility

Posted By Colleen Glatfelter, Thursday, January 19, 2017

By Crystal S. Carlisle, Associate Attorney, The Brocker Law Firm, P.A.

These days, you literally have the power to access any document in your law office through your cell phone, tablet or laptop.  Client files and communications may be accessed by touching a few characters on the keyboard.  It is very convenient and makes staying on top of things much easier, but there are also risks.  What happens if that device is lost or stolen?  Will your password provide the necessary protection to keep your client data safe?

When lawyers think about the security of their computerized data, the first things to come to mind may be virus protection, firewalls, and data back-ups.  These are all very important, but the security of end-user devices is just as important.  I recently attended an excellent CLE presented by Lawyer’s Mutual that opened my eyes to additional cybersecurity issues lawyers must be aware of and reminded me of Comment No. 8 to N.C. Rule of Professional Conduct 1.1 quoted below:

[8] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with the technology relevant to the lawyer’s practice, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.

Keeping abreast of the benefits and risks associated with the technology relevant to the lawyer’s practice, likely includes being aware of how someone could gain access to mobile devices and how to adequately protect them.  Several ways to protect the data on end-user devices were discussed at the CLE, including using multifactor identification when logging into a database with confidential information and using strong passwords.  But ultimately, best practice is to encrypt all laptops, mobile devices, and removable media, such as jump drives.  It is worth paying an IT professional to help you now, rather than facing the headache of a costly data breach later.  Along with the great power of easy and constant access to client documents comes the great responsibility as lawyers of protecting against disclosure of confidential information.   

~~~~~

 

 *Any opinion or views expressed in blogs posted on this site are those of the identified author and not the Committee as a whole. 

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Holiday Gifts – Fa la la la oops

Posted By Colleen Glatfelter, Thursday, December 22, 2016
Updated: Thursday, December 29, 2016

By Tara Muller, Muller Law Firm

No attorney’s holiday season is complete without a desk full of gut-busting sweets and alcohol.  Every year those carefully wrapped (and, of course, well-labeled) packages remind us of the gratefulness of vendors, staff members, and other professionals on whom we rely to keep our business running. 

The problem is that giving and receiving ethically in North Carolina is tricky business for attorneys, and, now, even more so for mediators.  What is a “gift,” and just how likely is that gift to unduly influence its recipient, whether it be another attorney, judge, court clerk, testifying expert, or trial court administrator?  Is it just like pornography – we all know a prohibited gift when we see it?

Let’s consider the clearest, most iron-clad ethics rule of all – no gifting to court personnel. Comment 7 of RPC 3.5(a) indicates that the impartiality of a public servant in our legal system would be impaired by the receipt of gifts.  Therefore, “a lawyer is never justified in making a gift or a loan to a judge, a hearing officer, or an official or employee of a tribunal.” Of course, the rule would prohibit a $20 bill slipped to a judge.  Even a $10 gift card for Christmas is shady.  A $7 birthday lunch? A $3 engraved holiday card?  A $2.50 mousepad?  Perhaps the rules are not as clear as they appear.

To my knowledge, the NC State Bar has not yet prohibited attorneys from sending out holiday cards or mousepads. However, just in time for the holidays, a recent advisory opinion of the NC Dispute Resolution Commission has thrown mediators for a loop.  The opinion prohibits NCDRC mediators, many of whom are attorneys, from giving out gifts as insignificant as mouse pads bearing the mediator’s name. Will the State Bar follow suit with similar advisory opinions defining prohibited gifts or placing a monetary limit on marketing material?  What do you think - would similarly strict prohibitions on attorney gifts level the playing field, or unnecessarily restrict marketing in these competitive times? 

 

Tara Muller conducts mediations across North Carolina as a NCDRC mediator and also provides legal writing services as an appellate freelance attorney. She has nearly 15 years of experience representing both plaintiffs and defendants in workers’ compensation and employment matters.  Tara can be reached at tara@mullerlawfirm.com.

~~~~~

 

 *Any opinion or views expressed

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Ethical Deliberations on Trial Publicity in “Making a Murderer”

Posted By Colleen Glatfelter, Friday, December 16, 2016

By Stephanie D'Atri, Hatch, Little & Bunn L.L.P.

 

Most of you are familiar with the popular Netflix documentary, “Making a Murderer,” produced by filmmakers Laura Ricciardi and Moira Demos but, in case you are not, here is an abbreviated summary of what the 10-part, real-life series depicts:

 

Steven Avery of Manitowoc County, Wisconsin, was convicted of the sexual assault, attempted murder, and false imprisonment of Penny Beerntsen in March of 1986.  After serving approximately 18 years in prison, Avery was exonerated by DNA evidence and released in September of 2003.  The Wisconsin State Legislature introduced “The Avery Bill” several months later to review prosecutorial and police practices and recommended that Avery be awarded $450,000.00 as compensation for his wrongful conviction.  Avery also filed a civil lawsuit against Manitowoc County, the Manitowoc County District Attorney who prosecuted him in the Beernsten case, and the Manitowoc County Sheriff, based upon allegations of personal hostility and obstruction of justice – among other things, he claimed that they should have considered the actual assailant, who was known to them at the time and who later confessed to Beernsten’s attack in 1995, over 8 years before Avery was released.  Sergeant Andrew Colborn with the Manitowoc County Sheriff’s Office was notified of this confession, but he failed to act and Avery remained in prison until 2003.  At least six individuals related to Avery’s civil case were deposed in October of 2005 for purposes of the civil lawsuit, including Sergeant Colborn and Lieutenant James Lenk from the Manitowoc County Sheriff’s Office.   

 

On October 31, 2005, while depositions and discovery in Avery’s civil case were underway, a local photographer by the name of Teresa Halbach drove to Avery’s residence to photograph a van for Auto Trader Magazine.  After not hearing from her for several days, Halbach’s family contacted the Calumet County Sheriff’s Office to report her disappearance.  On November 5, 2005, volunteers aiding Halbach’s family in the search for their missing daughter discovered Halbach’s 1999 Toyota Rav4 vehicle at the Avery auto salvage and towing yard in Manitowoc County.  Investigators obtained a search warrant covering the salvage yard and Avery’s trailer.  Firearms were recovered during one of the many searches at Avery’s property and, on November 9, 2005, Avery was arrested for being a felon in possession of a firearm.  Investigators for Calumet County, rather than Manitowoc County, were charged with handling the investigation of Halbach’s disappearance to reduce any impropriety. 

 

Calumet County Sheriff Jerry Pagel held several press conferences to update the public as searches of Avery’s residence continued, including a press conference on November 10, 2005.  Sheriff Pagel, sitting alongside the Calumet County special prosecutor assigned to Avery’s case, Ken Kratz, said as follows:

 

“Well, as I am sure everybody is aware, the scope of this investigation is now criminal in nature and we are classifying it as a homicide investigation.  It appears that an attempt was made to dispose of a body by an incendiary means… Pieces of human… teeth were found on the Avery property… the key that was used to start Teresa Halbach's vehicle was found in Steven Avery’s bedroom… the Manitowoc County Sheriff Department’s role in this investigation was to provide resources for us when they were needed.  As we needed items on the property to conduct searches, they provided that piece of equipment and that’s their role and their only role in this investigation…”  (emphasis added).

 

Sheriff Pagel appears to go out of his way to explain and overemphasize the limited role of the Manitowoc County Sheriff’s Department.  Yet, despite being witnesses and deponents in Avery’s civil case, Lieutenant Lenk and Sergeant Colborn both actively participated in the investigation of Halbach’s disappearance.  Sergeant Colborn, in particular, searched Avery’s bedroom and emptied his nightstand during an initial search of the Avery property.  He did not uncover any evidence at that time and no Calumet County deputies were present.  During a subsequent search, Lieutenant Lenk discovered Halbach’s Toyota Rav4 key lying in plain sight on the floor in Avery’s bedroom.  A deputy with the Calumet County Sherriff’s Office was present for this second search, along with Sergeant Colborn.  Despite Sheriff Pagel’s assertion that the Manitowoc County Sheriff’s Department only provided resources to aid in searches by Calumet County detectives, Lieutenant Lenk and Sergeant Colborn both participated in searches of Avery’s property that ultimately yielded key (pun intended) evidence in the investigation.

 

On February 27, 2006, several months after Avery’s arrest, detectives interviewed Avery’s 16-year-old nephew, Brendan Dassey.  Dassey, who had a low IQ, was interviewed at his high school without a parent present.  After several conversations with detectives, Dassey admitted to taking part in the crime, for which he was charged with first-degree intentional homicide, mutilating a corpse, and first-degree sexual assault under the Wisconsin penal code.

 

In a pre-trial press conference on March 1, 2005, Kratz and Sheriff Pagel explained these new developments revolving around Avery’s nephew:

 

Pagel:  “Late this afternoon, a 16-year-old juvenile male, who was a relative of Steven Avery, was taken into custody and he is currently being detained at a juvenile facility.  The 16-year-old juvenile admitted his involvement in the death of Teresa Halbach as well as Steven Avery’s involvement in this matter.”

 

Kratz: “Sheriff Pagel and I will be releasing to the media the specifics of this case.  I will be filing, as I mentioned, a criminal complaint tomorrow and by 2:00 p.m. that will be available for release to all of you.”

 

A criminal complaint was in fact filed on March 2, 2006, the day after Brendan Dassey was detained.  Kratz and Sheriff Pagel then held a follow-up press conference, at which time Kratz announced as follows:

 

“I know that there are some news outlets that are carrying this live and perhaps there may be some children that are watching this.  I'm going to ask that if you are under the age of 15 that you discontinue watching this press conference

 

We have now determined what occurred some time between 3:45 p.m. and 10 or 11 p.m. on the 31st of October.  16-year-old Brendan Dassey, who lives next door to Steven Avery in a trailer returned home on the bus from school about 3:45 p.m.  He retrieved the mail and noticed one of the letters was for his uncle, Steven Avery.  As Brendan approaches the trailer, as he actually gets several hundred feet away from the trailer, a long, long way from the trailer, Brendan already starts to hear the screams.  As Brendan approaches the trailer, he hears louder screams for help, recognizes it to be of a female individual, and he knocks on Steven Avery's trailer door.  Brendan says that he knocks at least three times and has to wait until the person he knows is his uncle, who is partially dressed, who is full of sweat, opens the door, and greets his 16-year-old nephew.  Brendan accompanies his sweaty 43-year-old uncle down the hallway to Steven Avery's bedroom and there they find Teresa Halbach completely naked and shackled to the bed.  Teresa Halbach is begging Brendan for her life.  The evidence that we've uncovered establishes that Steven Avery at this point invites his 16-year-old nephew to sexually assault this woman that he’s had bound to the bed.  During the rape, Teresa is begging for help, begging 16-year-old Brendan to stop, that you can stop this.  16-year-old Brendan, under the instruction of Steven Avery, cuts Teresa Halbach’s throat but she still doesn’t die.”  (emphasis added.)

 

Did Kratz go too far?  Rule 3.6 of the North Carolina Rules of Professional Conduct, which is modeled after the American Bar Association’s Model Rules of Professional Conduct, governs a lawyer’s duties and permissible conduct as it relates to trial publicity.  Specifically, “a lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”  Protecting the right to a fair trial is of utmost importance.  Comment 6 of this Rule further explains that criminal jury trials, in particular, “will be most sensitive to extrajudicial speech.” 

 

So what may a lawyer disclose?  A lawyer may announce the offense and identity of the persons involved, report that an investigation is underway, provide any information contained in the public record, request assistance in obtaining evidence, and detail the results of an investigation.  A lawyer may also provide “a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest.”  In criminal cases in particular, a lawyer may also provide the identity, residence, occupation, and family status of the accused, any information necessary to aid in the apprehension of the accused, the time and place of the arrest, the identity of the investigating and arresting officers or agencies handling the investigation, and the length of the investigation.

 

Beyond this, prosecutors have special responsibilities under Rule 3.8 of the North Carolina Rules of Professional Conduct that they must follow in all criminal cases:  “Except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose,” prosecutors must “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.” 

 

Page 4 of the criminal complaint that Kratz filed on March 2, 2006, sets forth the following allegations related to Dassey’s arrival upon Avery’s trailer:  “Dassey stated that on October 31, 2005, he went to pick up the mail on his bike and, upon returning, he saw that there was a letter for Steven Avery.  Dassey stated that on his way to Steven Avery’s trailer, he passed a burn barrel located on Avery’s property.  Dassey stated that he looked into the burn barrel and observed a cell phone and camera inside of the barrel.  Dassey stated that while approaching the Avery residence on his bike, he heard screams for help coming from Avery’s trailer.” 

 

The criminal complaint does not mention that Dassey was “several hundred feet away from the trailer.”  It also does not indicate that Dassey was “a long, long way” from Avery’s trailer as Kratz specifically informed the public during his pre-trial statements on March 2, 2006.  Kratz employs a story-telling technique during his press conference and utilizes descriptive words that embellish the actual information presented in the criminal complaint.  Even if these words were true, they were absent from the charging documents and do not appear to be necessary to inform the public about the ongoing investigation.  They also hardly serve a legitimate purpose other than inciting and playing upon the emotions of potential jurors and implicating Avery as the only possible suspect in Halbach’s murder before a trial even begins.  

 

Dassey apparently made a statement to the investigating detectives that “Avery was covered in sweat.”  The criminal complaint, however, does not indicate that Avery was “partially dressed” when he answered the door, nor does it indicate that Halbach “beg[ed]” for help.  Rather, this information also appears to have been inserted as another descriptive and unimportant embellishment by Kratz during his pre-trial press conference.  Even if these statements were also true, the effect – whether intended or unintended – seems to have been to heighten public confirmation of Avery’s involvement in Halbach’s murder in the very early stages of the investigation.

 

What’s worse, Kratz begins the press conference by directing all persons under the age of 15 to stop watching, inferring that the events he intends to describe will be too frightening for young ears.  He immediately follows this warning by letting the public know that “we have now determined what occurred” (emphasis added).  In six carefully chosen words, Kratz uncloaks the sacred pre-trial armor of innocence and sends a clear message that Avery and Dassey have already been “determined” guilty – and not just by the prosecution and the detectives.  Instead, by using the first-person plural pronoun, “we,” Kratz intentionally includes his audience as part of the group who have already “determined” the events implicating Avery and Dassey.  The very safeguard that Kratz is ethically required to protect with reasonable care is broken by this cavalier and presumptive proclamation.  Perhaps these words didn’t have a quantifiable impact on Kratz’s captivated audience of potential jurors, many of whom were already familiar with Avery as a result of his 1986-overturned conviction, but Avery’s lawyers certainly believed that they caused enough of a problem.  

 

I had the unique pleasure of meeting Avery’s lawyers, Dean Strang and Jerry Buting, while they were speaking at an engagement in Durham, North Carolina.  When asked to discuss venue, Strang said that all but one person in the Calumet County jury pool believed that Avery was guilty before the trial even began.  The trial ultimately occurred less than 45 miles outside of Manitowoc County in none other than the county in which the Halbach family resided – Calumet County.  During a seminar for the Wisconsin Association for Justice in March of 2016, Strang further explained that, given the pre-trial publicity, “there was not one of the 71 other counties in Wisconsin that we could have gone to get (an impartial) jury... It was pointless to try to go to another county to get a jury.”  Regardless of intent, the numerous pre-trial statements appear to have played at least some role in stripping Avery of his right to a presumption of innocence.

 

Beyond Kratz’s own statements, did he have any obligation to control the statements made by Sheriff Pagel in the November 2005 press conference?  As the District Attorney assigned to prosecute this case, Kratz was aware, or should have been aware, that Sergeant Colborn actively searched Avery’s bedroom and that Lieutenant Lenk discovered the key next to Avery’s nightstand during a search on November 8, 2005.  Kratz did not affirmatively claim that the Manitowoc County Sheriff’s Office had no role in the investigation other than providing resources during this press conference, but he sat alongside Sheriff Pagel, who failed to disclose the extent to which Sergeant Colborn and Lieutenant Lenk were involved.  Rule 3.8 requires a prosecutor to exercise “reasonable care” to prevent investigators from making extrajudicial statements.  Does this Rule affirmatively require Kratz to correct and/or address Sheriff Pagel’s statement that the Manitowoc County Sheriff’s Office had no role other than providing resources and equipment used during searches at Avery’s property?  Kratz’s decision to sit quietly after hearing this gross misstatement may not have been a blatant attempt to circumvent his ethical obligations, but they also seem contrary to the intent of this Rule. 

 

In the wake of Making a Murderer, Kratz explained to USA TODAY NETWORK-Wisconsin that, “as my comments fit within the rules, there was no professional sanction imposed… I made no attempt to poison the jury pool and in fact made no further comment until the Avery trial began, as I recall.”  Kratz may not genuinely believe that he violated his ethical obligations, but he also commented that “if I had it all to do over again, I would have simply released the criminal complaint rather than making a verbal statement.  Not because I was not allowed to make the comments I did, but due to the criticism I received in the 10 years since.”  

 

I guess Kratz wants the public to find him innocent of any ethical violations unless he is “determined” guilty by the Wisconsin Bar… Oh, and in case you were wondering, Avery and Dassey were both convicted in 2007.

 

~~~~~

 

 *Any opinion or views expressed in blogs posted on this site are those of the identified author and not the Committee as a whole. 

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Collaborative Help

Posted By Colleen Glatfelter, Thursday, December 1, 2016

By Edd Roberts, Roberts Law Office, PA

          On a cold Saturday morning in November at the Chavis Heights Community Center, an outpouring of help came together to offer assistance to those in need.  In a communal effort to help folks clean up old charges and convictions off their records, lawyers from the DA’s office, the Public Defender’s office, N.C. Legal Aid, private practice criminal defense firms, and Justice Served came together to staff a clinic and provide pro bono services. Those receiving services had to be pre-registered and screened to ensure they qualified for eligibility of relief under existing laws. Approximately 160 people arrived looking for help. All the candidates were warmly greeted at the front door and each met with a lawyer at one of the many erected conference tables inside the gymnasium. 92 petitions were filed that day to expunge records and 70 more people were helped to near completion with instructions on the additional information they needed to supplement their petitions in order to successfully file.

            I had the opportunity to meet with six individuals, all of whom were grateful for the help they received. Each individual was trying to advance him or herself in life with better employment opportunities and better housing possibilities; however, the common barrier was old charges or convictions.  One of the individuals I met with stood out as she was exceptionally grateful for the help she received and the forecasted outcome in her matter. Her reaction to this good news left a lasting impression on me.  For purposes of confidentiality, I will not use her real name and therefore will refer to her only as “Hope.” Hope is close to my age and when talking with her I immediately felt a generational connection. As I reviewed her record, it became apparent to me that a lot of her run-ins with the law were when she was a young adult, nearly twenty years ago. She had managed to raise kids and stay out of trouble for over two decades. While filling out the petition on her behalf, I asked her what her goal was in seeking to have her record expunged. Hope stated simply, “I want to help people.” Upon my further inquiry as to how she intended to help people she stated, “I want to open a group home to help people who are struggling in life.” Looking at the contents of Hope’s record it became very obvious that she herself had likely struggled early in life with her own problems and addictions. However, the person she presented to me appeared to be one that had turned a corner a long time ago and by doing so likely had changed the direction of her life. The one charge on her record that was causing her the most heartache and presenting a barrier to achieving her goal was fortunately one she was entitled to remove. The petition she filed that day, once granted, will forever remove the charge from her record and more importantly, the stigma it carries will be wiped from public view. Playing a small part in this second chance at a fresh start was very rewarding. The smile that came across Hope’s face when I shared this news and the sigh of relief that she exhaled upon the realization of what it would likely mean for her future was worth all the time and service that everyone had put forth to host the expunction clinic.

            There are moments as a practitioner that you get to see a difference made in someone’s life. As I get older those moments seem to be more fleeting. My time with Hope on that cold Saturday morning in November was one of those moments. Although I cannot adequately articulate the feeling that rushed forth and was displayed on her face during that instant of realized renewal, I think in a word it was best captured by her name.

~~~~~

 

 *Any opinion or views expressed in blogs posted on this site are those of the identified author and not the Committee as a whole. 

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