New Department of Justice Policy Bans Federal Prosecutors From Asking Defendants to Waive Ineffective Assistance of Counsel Claims Against Defense Attorneys

        The United States Department of Justice recently released a new policy that will ban federal prosecutors from asking defendants to waive any potential ineffective assistance of counsel claims that they may have against their attorneys as a condition of accepting a plea. Previously, federal prosecutors had the ability to ask criminal defendants, who pleaded guilty, to waive their right to bring claims sounding in ineffective assistance of counsel. Now, federal prosecutors may not include language that constitutes such a waiver in plea bargain documents, and waivers included in documents that were executed prior to the implementation of this new policy may not be enforced.

       A criminal defendant’s Sixth Amendment right to counsel may be violated if an attorney did not adequately and competently represent the defendant and the result of the defendant’s trial or sentencing would have been different if the attorney had competently represented the defendant. Attorney General Eric Holder has stated that this new policy is reflective of the Justice Department’s commitment to preserving citizens’ constitutional rights, namely the Sixth Amendment right to counsel and the Fourteenth Amendment right to due process. In addition, this new policy will ensure that individuals receive competent representation as they respond to the criminal allegations stated against them.

          The criminal defense lawyers of Brown Paindiris & Scott can help you navigate the criminal justice system. For more information, visit our website.   

       

Cell Phone Privacy and the Law

In 2014, the United States Supreme Court addressed the issue of whether a police officer may search a cell phone without a warrant. In Riley v. California, the Court held that police officers may not search a cell phone without a warrant, absent some extreme circumstances such as a terrorist attack or child abduction. The Court went on to describe a cell phone as a “minicomputer.”  The Court recognized a cell phone’s ability to serve as an address book, tape recorder or camera, among other functions, thus making the material stored on a cell phone of a private nature. 

The law is much clearer on law enforcement’s ability to search a cell phone, as compared to the law on whether a private individual can be civilly liable for the unauthorized search of a cell phone. Unauthorized searches of cell phones have increasingly become an issue in middle and high schools. Some students have sued their schools, alleging invasion of privacy or negligence after teachers and other school personnel have seized and searched the students’ cell phones. 

The cell phone privacy issue may also arise in the context of employment situations. An employee may potentially have a cause of action against his or her employer for the unauthorized search of a cell phone, so long as the employee had a reasonable expectation of privacy in the cell phone. Whether the employee had a reasonable expectation of privacy in an employer owned and issued cell phone, however, is questionable.

A recent decision from the United States District Court for the District of Connecticut discussed cell phone privacy in the context of a civil lawsuit. In Bakhit v. Safety Marking, Inc., the court denied the plaintiffs’ motion to inspect the cell phones of the defendants. The court discussed the Supreme Court’s decision in Riley, concluding that in the present case, the plaintiffs’ motion implicated the defendants’ privacy interests given the private material that was likely stored on the defendants’ cell phones.  

The issue of cell phone privacy, especially within the context of a civil lawsuit, is continuing to evolve. As technology becomes increasingly sophisticated, courts and lawmakers will likely need to set parameters regarding cell phone searchers, while taking into account the privacy interests of cell phone users.

BPS Attorneys Richard Brown and Kate Haakonsen to Moderate Panels at 13th Annual Connecticut Bar Association Bench-Bar Professionalism Symposium

On Friday, November 7, the Connecticut Bar Association, in collaboration with the Hartford County Bar Association and the State of Connecticut Judicial Branch, will sponsor “Raising the Bar: A Bench-Bar Symposium on Professionalism in the Judicial District of Hartford.” In its 13^th year, the Connecticut Bar Association Bench-Bar Professionalism Symposium brings together attorneys and judges for thoughtful discussions on the future of the legal profession. BPS Attorneys Richard Brown and Kate Haakonsen will be moderating two of the sessions at this event.

The event will feature a presentation on the maintenance of ethical standards and the preservation of professionalism in the legal profession, as well as a series of panels that will focus on professionalism topics and concerns specific to criminal, family, civil, probate, and real estate/business law. Attorney Richard Brown will serve as the moderator of the criminal law session, while Attorney Kate Haakonsen will moderate the family law session. Connecticut Attorney General George Jepsen will deliver the keynote address and will discuss maintaining and enhancing professionalism in his office, which is the state’s largest civil law firm.

To learn more about the November 7 symposium, click here.