P R E S E N T A T I O N B Y:

Barry Nelson Covert, Esq.

Ethical Challenges in the Age of the Internet and Other

Developments in Criminal Law

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Ineffective Assistance

“Open Your Wallet”

Dombrowski v. Bulson(4th Dept. 2010; Ct. App. argument April 2012)

Jury trial convict.; 440 denied; writ. granted after 3 years for invest. and cross of def’s daughter

4th Dept. found “Loss of Liberty” cause of action

Emotional Injuries and other lossesPage 1

Ineffective Assistance

D’Alessandro v. Carro(Supreme Court N.Y. County 2-29-12)

1991 Kidnapping conviction (sent. 15 yrs) 1995 Crim. Appeal – 30.30 not raised; Corum Nobis granted - “clearly meritorious”

$26M lawsuit. Plaintiff must est. - “Innocence” or “Colorable Claim of Innocence”

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Plea Bargaining Law

New field of Constitutionalized criminal procedure – “PLEA-BARGAINING LAW”

Missouri v Frye 4th revoked license offense (4 year sent. potential)

90 day plea offer was never conveyed

Rearrested: 3 year sentencePage 3-6

Plea Negotiations – “Critical Stage”

97% Federal, 94% State charges resolved by plea. “Course of legal representation”

Plea negotiations are “critical stage” “Horse trading” is the criminal system Duty to communicate plea offer “Reasonable probability” def would have accepted and Pros. and Ct. allowed

“Shoot her in the butt!” - Defense

Def. shot at her head, missed. Then chased and shot her in buttocks, legs, etc.

Pros. offered 51-85 months Def’d admitted guilt and wanted plea Atty. loves “Shoot her in the butt” defense

Laffler v. Cooper

Convicted after trial: 185-360 month sentence

“Criminal justice today is for the most part a system of pleas, not a system of trials.”

Remedy should be “tailored” to the injury and “neutralize the taint”.

May reduce sentence, convictions and/or both

Test

But for ineffective advice there was a “reasonable probability” plea would have been accepted and conviction and/or sentence would have been lower.

Remedies

Tailored to injury; “neutralize the taint.”

Reduce (1) sentence; (2) conviction; (3) both

Matter of Steven G.

P.I. client reenacted accident. Attorney thought that he should participate and assisted with her

breast and assisted her hand (to find his pants).

Nine month suspension.BUT…

Serving on “Committee on Character and

Fitness”

Continued to serve from date of crime (March ’07) through filing of criminal charges (June ’07), right up to his discon. plea (September ’08). Referee sought - Censure; Hearing Panel sought - 3 months.; 1st Dept. determined - 9 months.

The Menu

2 years for sexual relations with a client

6 months for unwanted sexual advances

Censure for sexual advances after dinner and drinks with job applicant

Censure for pinching secretary’s buttocks

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Supervise Your Escrow Accounts

In Re Galasso (2/12/12) Respondent’s 15 bookkeeper and office manager

was his bro; suddenly turned megalomaniacal.

Took in escrow monies of $6.8M, $800K + $175K

Bro. charged criminally – pled – 2.5 to 7.5 yr sentence

Resp. suspended 2 years – very critical and negative decision.

Bro. concealed through forged signatures and diverted bank statementsPage 8

You Must Cooperate WithThe Grievance Committee

New Second Circuit Rule:

Failure to cooperate with orders to show cause can constitute waiver of objections

File Your Tax Returnsand Pay Your Taxes

NYS AG’s office is specifically targeting attorneys.

Public Censure is the standard result - unless there are additional aggravating circumstances.

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Trial Attorneys Still Enjoy A Nice Snooze!

Muniz v. Smith (6th 2011)

Assault with intent to commit murder Sentenced to 29 ½ - 60 years Counsel fell asleep during defendant’s cross

9th, 5th, and 2nd Circuit agree “presumed prejudice” only occurs when counsel “sleeps through substantial portion of the trial.”Page 12

Trial Attorneys Still Enjoy A Nice Snooze!

Juror affidavit that lawyer asleep during defendant’s testimony

Lawyer also arrested for possession of cocaine 3 weeks prior to trial

6th Cir. noted that counsels objections at END of the cross supported a finding that he was “effective”.

Evidentiary hearing DENIED!

“We find that the respondent failed to maintain appropriate vigilance over his firms bank accounts, resulting in actual and substantial harm to client.”

2 YEAR SUSPENSION!

Beware The Digital Age – AKA “Know Your

Technology”

Secure your wi-fi routers or any other means of access to your firm’s hard drives.

Do not assume that your device (1) does not have wi-fi capabilities or (2) that wi-fi needs to be manually turned on.

Always password protect!Page 32

Linked-InDo not grant access to your contacts.

Continuing Meta-Data Concerns

Opposing counsel usually may check the meta-data with impunity.

Check for embarrassing comments! Fourth Department held FOIA petition entitled to inspect meta-data. In Matter of Irwin (4th Department 2010)

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E-Mail Nightmares

Client e-mails sent from their employers computers may not be privileged. Holmes v. Petrovich Dev. Com. LLC (3rd Cir. 2011)

Company had warned that they retain the right to monitor computers

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Parnes v. Parnes (3rd Dept. 2011)

Matrimonial case. Husband inadvertently left one page of an email

he had sent to his lawyer on desk and wife “found” a note with husband’s e-mail and password.

Wife printed all attorney e-mails and gave to her attorney.

Court held all but the one page were privileged.

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Beware The “Cloud”

Must take “reasonable care” to ensure confidentiality. N.Y. Rules of Professional Conduct. Rule 1.6.

Again – “know your technology”

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Enforceable obligations to preserve confidentiality and security

Agreement to notify the attorney if they receive any legal process

Employ “available technology” to guard against “foreseeable attempt” to infiltrate

Websites

Common information such as attorney’s history, experience, area and practice would constitute attorney advertising and must carry appropriate warnings.

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Websites

Inviting web inquiries could invoke attorney-client relationship and could create future conflicts.

For Additional Information

Barry Nelson Covert, Esq.

Lipsitz Green Scime Cambria LLP42 Delaware Avenue, Suite 120Buffalo, NY 14202716 849 1333, ext. 365bcovert@lglaw.com