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High court on watch for bad lawyering

Posted: Thursday, July 08, 2010

ATLANTA - Once their secrets are revealed, some lawyers leave no doubt that they crossed the line and left it far, far behind.

Take Scott Rothstein, who will be spending the next 50 years in a federal prison for running a $1.2 billion Ponzi scheme out of his law office in South Florida. An outraged judge pitched the book his way last month, giving Rothstein a decade longer behind bars than the prosecution recommended.

In the matter of disbarred attorney Steven Rondos, it isn't so much the sum he stole, which prosecutors put at $4 million, but the sort of people he stole it from that made his crimes so despicable. His 23 victims all suffered from some sort of disability -- one had cerebral palsy and spastic quadriplegia, for example -- which is why Rondos had been appointed their guardian.

Instead, he spent their money on himself and his home. A $31,000 television set here. A $10,000 set of kitchen curtains there. At that rate, you can go through a few million quickly. Sentenced in May, Rondos is now doing up to 15 years behind bars.

But what about lawyers who hurt their clients while not actually stealing from them, or lawyers who act unethically for the benefit of their client? In the term just finished, the Supreme Court took up an astounding number of cases related to attorney conduct or compensation, amounting to almost 20 percent of its caseload, according to Law.com, the National Law Journal's site.

The court considered 16 cases touching on or centered on lawyering. A few had to do with fairly technical aspects of the profession. Can the law bar attorneys from advising clients to run up debt before declaring bankruptcy? The high court said yes.

But most of the cases focused on what can only be called really bad lawyering.

The court seemed interested in further defining ethical boundaries for lawyers. The result was, well, mixed.

Yes, a lawyer was obligated to tell a client that pleading guilty to a crime could get him deported, the court ruled.

And then there was a Florida case where the client was more on top of the law than his attorney was. Albert Holland begged and pleaded with his lawyer to please, please, please file a crucial document with the court by deadline or else his case was doomed.

The lawyer missed the deadline, anyway, so Holland missed his chance to claim his murder conviction and death sentence had been wrongly decided. Oops.

Too bad, the lower courts ruled. Holland would just have to suffer for his lawyer's slip. The state might as well schedule his execution.

The Supreme Court saw it differently.

By a vote of 7-2, the Supreme Court said the appeals court in Atlanta had been too rigid in applying the law. Holland has another chance to show he shouldn't have to pay for his lawyer's negligence.

Looking at the Holland and immigrant cases, you might think that Frank Spisak Jr. would stand a pretty good chance before the court, too. His lawyer gave a closing argument so damaging to him that if a prosecutor had said those things, he could have been charged with misconduct, Justice John Paul Stevens wrote in his opinion.

Here's a taste of what Tom Shaughnessy, now deceased, told jurors about his client:

"When you look at Frank Spisak, don't look for good deeds, because he has done none. Don't look for good thoughts, because he has none."

Referring to his client, he said, "If each drop of blood in this sick, demented body were full of atonement for the anguish, the terror, the aggravating circumstances we have seen here, it wouldn't be enough."

So much for having an advocate when you need one. And Spisak clearly needed one. A sexually confused worshipper of Adolf Hitler, Spisak lived as a woman for a while only to begin imitating Hitler, moustache and all. Spisak shot and killed two black men and one man he mistook for a Jew, and wounded two more people in a series of attacks in and around Cleveland State University in 1982.

When he took the witness stand, Spisak boasted of the shootings and said he would kill again if allowed to.

So, what is a defense lawyer to do?

Although he went on quite too long and quite too vividly about the gruesome nature of his client's crimes, Shaughnessy also noted evidence of Spisak's mental illness and asked the jury to take "pride" in their "humanity." That was about as close as he got to asking jurors to spare Spisak's life.

At the Supreme Court, all the justices concluded that nothing Shaughnessy could have said would have changed Spisak's fate. The crimes were too horrific, his testimony too chilling, for any lawyer to argue for his life.

So what message are we to take away from the Supreme Court's rulings on lawyer conduct?

Just this one:

The Supreme Court is watching.

• Ann Woolner is a Bloomberg News columnist.



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