Adjunct Law Prof Blog

Federal Court Dismisses Fraud Case Against Cooley Law School

MacDonald, Jr. v. Thomas M. Cooley Law School, ____F.Supp.2d____(W.D. Mich. July 20, 2012), is the second case where a court has dimissed a fraud type of suit brought by former law students against a law school. The other case is  Gomez-Jimenez v. New York Law School, No. 65226/11 (NY Sup. Ct. Mar. 21, 2012), which we previously reported on. 

The claim was that the 2010 Employment Report and Salary Survey was fraudlent. In granting a motion to dismiss, the court explained:

                This Court agrees with Judge Schwietzer, a judge for the New York Supreme Court in a nearly                 identical case, for some of the reasons he discusses as to why reliance upon the two                 statistics would be unreasonable.  See Gomez-Jimenez v. New York Law Sch., Index                 No.652226/11, Seq. No. 002, Decision and Order (N.Y.S.Ct. Mar. 21, 2012) (Def.’s                 Supplemental Br. Ex. 1). This Court does not necessarily agree that college graduates The                 State of New York’s trial court. Case 1:11-cv-00831-GJQ  Doc #54 Filed 07/20/12 are                 particularly sophisticated in making career or business decisions.  Sometimes hope and                 dreams triumph over experience and common sense.  Nevertheless, it would be unreasonable                 for Plaintiffs to rely on two bare-bones statistics in deciding to attend a bottom-tier law                 school with the lowest admission standards in the country. In addition, “[i]t is widely                 accepted that American law schools,
                Cooley included, employ all sorts of legerdemain to boost employment rates in a                 contracting legal market” (Pls.’ Resp. at 5); once again, Plaintiffs state that they had other                 reasons to not rely upon the Employment Reports.  Furthermore, whether before or during                 Plaintiffs’ attendance at Cooley,it would have been unreasonable to continue to rely on the                 Employment Reports because of theeconomy’s massive downfall, which hit the legal business                 as hard as any.

Mitchell H. Rubinstein

Hat Tip: TaxProf Blog

Are Lawyers Considered Doctors??

We covered this topic before, here. I just came across an interesting article which outlines the history of JD's in this country as well as the issuance of other law degrees. David Perry, How Did Lawyers Become "Doctors"?, 84 NYS Bar Journal 20 (June 2012). (not available on the internet)

This author concludes that JD's are indeed doctors and cites to several bar association opinions stating that it is appropriate for a lawyer to use the title doctor, particularly if he or she is in academic setting. Though the focus on the article was not on whteher lawyers are doctors( the focus was on the types of degrees that have been awarded), the rational appears to be that law schools did not intitially require to have undergraduate degrees. Now all law schools do and they made the degree uniform. Every law school in the country today issues a JD degree. 

Sorry, but I still do not buy that. It is not that I do not think that a law degree is on the P.hd level-I do. I certainly do not believe that a JD degree is on the level of a Masters. My view is simply that JD degrees are different. It is neither a doctorate or a masters.

Mitchell H. Rubinstein

Lawyer Sick Leave Abuse

One of the most common forms of employee discipline involves time and attendance issue; more specifically sick leave abuse. This occorrus, for example, when the employee takes a sick day when he or she is not actually sick.

Well, what if a lawyer "plays' sick to get our of a trial date?? He or she can be in trouble-big trouble as this Jan. 12, 2012 article from Findlaw documents. A judge has threatened to impose a $1,000 fine and contempt of court on a lawyer  for doing just that. The lawyer denies that he abused sick leave or committed any form of misconduct.

Mitchell H. Rubinstein

2d Circuit Upholds Rule That Correspondence Law School Graduates Are Not Eligible To Sit For Bar

Bazadier v. McAlary, ___F.3d___(2d Cir. Feb. 16, 2012), is an important case which has gotten little press. The 2d Circuit upheld New York's bar admission rules which effectively bar graduates of law school correspondence and online schools from sitting for the New York bar examination. The case was brought by a California attorney who was fully licensed.

The decision is unreported and not particularly well written. One would have thought that a decision involving this important issue would have generated more attention by the court. The plaintiff challenged the court rules on Equal Protection and First Amendment grounds. In rejecting those arguments, the court stated:

 First, the district court properly concluded that, because Bazadier’s claims do notimplicate a fundamental right or a suspect class, they should be analyzed under rational basisreview. See Hayden v. Paterson, 594 F.3d 150, 169-70 (2d Cir. 2010). The challenged Rules,Sections 520.3 and 520.5(a) of Title 22 of the New York Compilation of Rules and Regulations,which effectively bar a graduate of a correspondence law school from taking the New York barexamination, are not based upon the content of the instruction provided by a law school and donot favor or disfavor any form of speech on the ideas or views expressed. Rather, the Rules areoccupational regulations that express a preference for one form of legal pedagogy over another.Second, the district court properly concluded that, based on the State’s argument thatcorrespondence-based study offers less assurance that a graduate has received a legal educationthat is adequate for membership to the bar, the Rules had a rational relation to the State’slegitimate interest in protecting the public from an incompetent bar. See In re Griffiths, 413 U.S.717, 725 (1973) (“[A] State [has] a substantial interest in the qualifications of those admitted tothe practice of law . . . .”); see also People v. Alfani, 227 N.Y. 334, 339 (1919) (“The reason whypreparatory study, educational qualifications, experience, examination and license by the courtsare required, is not to protect the bar . . . but to protect the public.”). Bazadier failed to “negativeevery conceivable basis” upon which the Rules could be upheld. Lewis v. Thompson, 252 F.3d567, 582 (2d Cir. 2001) (internal quotation marks omitted). Accordingly, the district courtproperly dismissed Bazadier’s equal protection claim based on his First Amendment right offreedom of speech.Finally, we concluded that the district court properly found that Bazadier had failed tostate a claim based on an infringement of his First Amendment right of freedom of associationfor the reasons stated in its decision and order. Accordingly, because Bazadier’s complaint failed to state a claim for relief, the district court properly dismissed it without first grantingleave to amend.

What I have always found interesting about New York's rules is that you do not even have to be a law school graduate to sit for the bar. As I understand it, you have to only go to one year of law school and then work as an apprentice for a lawyer. I actually know someone who has done this and he is a first rate lawyer. Therefore, I fail to understand the rationale for not allowing correspondence or online classes. If the student can pass the bar, that is what should count in my mind. 

Mitchell H. Rubinstein

 

 

 

 

 

Don't Cheat On The Bar

Matter of Dewitt v. NYS Board of Law Examiners, ____A.D.3d___(3rd Dep't. Dec. 29, 2011), is one of those decisions which you cannot make up. A student was found to have cheated on the bar exam and his exam was nullified. Guess what, he sues. The 3rd Department, in rejecting his lawsuit, explained:

 We must disagree with petitioner's contention that the determination is not supported by substantial evidence. Substantial evidence is defined as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" (Matter of Berenhaus v Ward, [*2]70 NY2d 436, 443 [1987] [internal quotation marks and citation omitted]; see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 179 [1978]; Matter of Goldsmith v DeBuono, 245 AD2d 627, 628 [1997]). Here, a proctor testified that she observed petitioner repeatedly craning her neck to look at the exam of the candidate seated next to her during the multiple choice session on the first day of the exam. The same proctor and her three supervisors all testified that they observed petitioner doing the same thing on the second day. Respondent also offered expert proof of strong statistical evidence that petitioner succeeded in copying answers from the other candidate. Although petitioner denied copying and presented her own expert proof challenging the statistical evidence against her, the resolution of conflicting evidence and determination of the witnesses' credibility are within the sole province of respondent and will not be disturbed (see Matter of Rogers v Sherburne-Earlville Cent. School Dist., 17 AD3d 823, 824 [2005]; Matter of Mirrer v Hevesi, 4 AD3d 722, 723-724 [2004]; Doolittle v McMahon, 245 AD2d 736, 738 [1997]).

The more interesting legal question is whether this applicant should be permitted to sit for the bar examinination in the future. I think not, but who am I? Moral of the story. Don't cheat.

Mitchell H. Rubinstein

 

Attorneys file infested with rodents and insect can be destroyed

On September 8, 2011, the South Carolina Supreme Court issued a rather remarkable order. It ordered that filthy attorney client files could be destroyed. As the Court stated:

On several occasions, an attorney appointed to protect the interests of another lawyer's clients pursuant to Rule 31, RLDE, Rule 413, SCACR, has notified the Court that the lawyer's client files are not maintained in a sanitary and safe condition. In some cases, the attorney to protect has advised the Court that the lawyer's client files are moldy and/or infested with rodents and insects. As a consequence, the attorney to protect clients' interests is hesitant to inventory the lawyer's client files, to remove original documents from the client files, and to relinquish control of the files to the lawyer's clients upon client request. Where an attorney to protect clients' interests petitions the Court for authorization to destroy the lawyer's client files and provides the Court with photographs or other sufficient documentation establishing that contact with the lawyer's client files poses a health hazard, the Court will determine the procedure which shall be followed in the matter and may, if appropriate,                           order the destruction of some or all of the lawyer's client files without first inventorying and removing original documents. The Court may assess the costs and attorney's fees incurred in filing the petition and complying with the Court's order against the lawyer as provided by Rule 31(f), RLDE. Nothing herein shall relieve a lawyer from safekeeping client files in an appropriate manner.  

Mitchell H. Rubinstein

Hat Tip: Legal Profession Blog

 

Sloppy Lawyering Leads To Possible Federal Disbarment

Sometimes you cannot make these decisions up.  Stanard v. Nygren, No. 09-1487, slip op. (7th Cir. Sept. 19, 2011), is one such case. In a nutshell,  because the attorney wrote an "incomprehensible" complaint and a poor appellate brief he has been ordered to show cause as to why his license to practice before the 7th Circuit should not be revoked. Here are some excerpts pulled by Legal Skills Prof Blog who get a big hat tip:

Slip op. at 2:

      "We affirm. The district court was well within its discretion to reject the second amended complaint and dismiss the case with prejudice. Each iteration of the complaint was generally incomprehensible and riddled with errors, making it impossible for the defendants to know what wrongs they were accused of committing. Maksym's persistent failure to comply with basic directions from the court and his open defiance of court orders amply justified the judge's decision to dismiss with prejudice. Moreover, like his pleadings in the district court, Maksym's appellate briefing is woefully deficient, raising serious concerns about his competence to practice before this court. Accordingly, we order Maksym to show cause why he should not be suspended from the bar of this court or otherwise disciplined under Rule 46 of the Federal Rules of Appellate Procedure. Finally, we direct the clerk to send a copy of this opinion to the Illinois Attorney Registration and Disciplinary Commission."

 Slip op. at 13:

      "Applying these principles here, the district court was well within its discretion in refusing to accept Stanard's proposed second amended complaint. We agree that it crossed the line from just 'unnecessarily long' to 'unintelligible.' Though the complaint was far longer than it needed to be, prolixity was not its chief deficiency. Rather, its rampant grammatical, syntactical, and typographical errors contributed to an overall sense of unintelligibility. This was compounded by a vague, confusing, and conclusory articulation of the factual and legal basis for the claims and a general 'kitchen sink' approach to pleading the case. This was Maksym's third attempt to draft a comprehensible pleading, yet his effort to comply with the court's earlier directions was half-hearted at best; the proffered second amended complaint was rife with errors. We include a sampling to provide an understanding of its shortcomings: [omitting list on pp. 13-16, including footnote 7, which reproduces a 345-word sentence and runs about 1.5 pages in the slip opinion]"

 Slip op. at 20-21:

      "One final note: Compounding the problems he exhibited in the district court, Maksym failed to file a reasonably coherent brief on appeal. All the deficiencies that plagued the various versions of the complaint also infected his briefs here. Maksym never directly addressed the issues before this court, relying instead on cases of marginal or no relevance. In the table of authorities in his opening brief, he cites 81 cases, but almost all of them are completely irrelevant to the issues presented here. In his reply brief, after the defendants had crystallized the issues, Maksym again failed to meaningfully-or even comprehensibly-articulate an argument. His appellate briefing was characterized by a reliance on irrelevant, conclusory...

 

Mitchell H. Rubinstein

 

Lawyers Beware. Blogging May Be Considered To Be Lawyer Advertising

Virgina State Bar's Crackdown on Lawyer's Blog Raises Questions is an important undated article in the Washington Post.  It discusses a situation where the Virginia State Bar brought a charge of misconduct against a criminal lawyer, in part, because of his postings on his blog. Apparently, they were written in such a way to constitute lawyer advertising triggering the need to include a disclaimer. As the article states:

One purpose of the Web site is to market the firm and attract business, so any discussion of Hunter’s cases is considered advertising and must include a disclaimer “that puts the case results in a context that is not misleading,” the charge said.

Hunter’s case, which is scheduled for a hearing Oct. 18, appears to be the first time the Virginia State Bar has lodged a formal charge against an attorney over blogging and whether it violates advertising rules. State bar counsel Edward Davis would neither confirm nor deny the existence of previous charges against lawyers over blogs and advertising, but there is no record of disciplinary action against Virginia attorneys regarding the matter, according to the bar’s archives of disciplinary actions dating back to 1999. The bar can suspend or disbar attorneys found in violation of legal ethics.

The blog can be found here. 

This raises many interesting legal issues ripe for law review commentary.

Mitchell H. Rubinstein 

Hat Tip: New York Public Personnel Law 

 

Ex Associate Sues Law Firm

Lawyers are employees like everyone else and we too can have employment law problems. An August 18, 2011 New York Law Journal summarizes one such suit filed by an associate against his former law firm. The complaint which spans 49 pages and 249 paragraphs is available here. A copy of the article can be found here. 

New York is a very restrictive employment at will state and it will be interesting to see what the court does with this complaint.

Mitchell H. Rubinstein

2d Circuit Issues Important Decision Involving Attorneys Fees Applications

MILLEA v. METRO NORTH RAILROAD COMPANY, ____F.3d____(2d Cir. August 8, 2011), is a critically important attorneys fees case that arose under the the Family Medical Leave Act (FMLA), which has an attorney fee provision similar to many statutes. The district court reduced the fee award reasoning that the claim upon which the plaintiff prevailed “had no public policy significance.” The 2nd Cir. held that that was error reasoning that “[b]y enacting a fee-shifting provision for FMLA claims, Congress has already made the policy determination that FMLA claims serve an important public purpose disproportionate to their cash value. We cannot second-guess this legislative policy decision.” 

        The Second Circuit found that “the district court impermissibly reduced its initial fee award based on an incorrect conclusion that Millea's victory was “de minimis.” Millea, 2010 WL 126186, at *6. The $612.50 award was not de minimis; to the contrary, the award was more than 100% of the damages Millea sought on that claim. The district court conflated a small damages award with a de minimis victory.”

        The Second Circuit found that “calculating attorneys' fees as a proportion of damages runs directly contrary to the purpose of fee-shifting statutes: assuring that civil rights claims of modest cash value can attract competent counsel. 

Mitchell H. Rubinstein

California Law Firm's Use Of Associate To Defend Itself Is The Same As Self Representation

 A law firm litigant that was successful on appeal is not entitled to recover statutory “prevailing party” attorney fees because its own associate represented it in the appeal. 

Carpenter & Zuckerman et al. v. Cohen et al., No. B215544, 2011 WL 1759152 (Cal. Ct. App., 2d Dist., Div. 5 May 10, 2011).

Saying the use of an associate was equivalent to self-representation, the 2nd District Court of Appeal held that the fee request fell within case law that precludes law firms that represent themselves from recovering attorney fees for their own representation.

This case was based upon California law and I am not sure that if it would have much application outside of California.

Mitchell H. Rubinstein

 

Lawyer Up. Get A Lawyer In 15 Minutes

You can get a Pizza in 15 minutes, so why can't you get a lawyer in 15 minutes. Well now you can. A June 16, 2011 NY Times article discusses how a company called "Lawyer Up" promises to find you a lawyer in 15 minutes. There is even an app for that. As the article states:

The service’s personal plan, aimed at young people, costs $4.95 a month. Those who do not have a subscription can pay a flat fee of $100 for the first call, which the company calls its “pay-in-a-pinch plan.” For all clients, an operator checks contact information and processes the lawyer’s initial fee of $250 on a credit card for the first hour of service.

Perhaps inevitably, there is an app for that, already available on Android phones and under development for the iPhone. It is basically a panic button, speed-dialing the service.

Lawyers do not pay to sign on to the roster, or for the client calls. Legal ethics rules frown on arrangements in which lawyers split fees with nonlawyers, and especially when lawyers pay people to round up clients — a practice known as using runners. A Connecticut lawyer who signed on, Patrick Tomasiewicz, said that when he got the call from the company, his main question was whether he would need to pay LawyerUp. The company satisfied him that its structure avoided runner issues.

Sorry, but I for one would not trust this service.

Mitchell H. Rubinstein

 

Lawyers and Superstition

There is a great article in the Feb. 11, 2011 New York Times about lawyers and superstition. It chronicles how some lawyers eat at the same lunch counter and the same lunch every day of a trial with the hope that this will bring them good luck. 

The amazing thing about this article is that no matter how irrational this behavior might seem, it is true. Many lawyers do follow rituals. Think about it.

Mitchell H. Rubinstein

Software to Replace Lawyers? It's true.

Armies of Expensive Lawyers , Replaced By Cheaper Sofware is an interesting March 4, 2011 New York Times article. It is about how "e-discovery" can be used to find documents with key words or phrases. This cuts down dramatically on lawyer time. This can save the client a significant amount of money. E discovery is also much quicker. The  article states:

But that was in 1978. Now, thanks to advances in artificial intelligence, “e-discovery” software can analyze documents in a fraction of the time for a fraction of the cost. In January, for example, Blackstone Discovery of Palo Alto, Calif., helped analyze 1.5 million documents for less than $100,000.

Some programs go beyond just finding documents with relevant terms at computer speeds. They can extract relevant concepts — like documents relevant to social protest in the Middle East — even in the absence of specific terms, and deduce patterns of behavior that would have eluded lawyers examining millions of documents.

“From a legal staffing viewpoint, it means that a lot of people who used to be allocated to conduct document review are no longer able to be billed out,” said Bill Herr, who as a lawyer at a major chemical company used to muster auditoriums of lawyers to read documents for weeks on end. “People get bored, people get headaches. Computers don’t.”

This raises a host of legal issues. Is e discovery sufficient? With respect to a lawyer who engages in e-discovery as opposed to regular discovery, is he or she breaching the standard a care? What if something is missed or a mistake occurs?

Law review commentary on the litigation issues raised by e discovery would be most welcome. 

Mitchell H. Rubinstein

 

Lawyer Disciplined For False Notarization Of Court Papers

Matter of Essien, ____A.D.3d___, 2010 N.Y. Slip Op. 06512 (1st Dep't. August 31, 2010), reminds us that no matter how easy it might be to do, a lawyer should never, repeat never, notarize a signature if he did not see the person sign the document. This lawyer did just that. He was disciplined by the 1st Department with a public censure. 

Of course, notaries should also never falsely notarize a dcoument and if they do they can loose their license. 

Mitchell H. Rubinstein

Even Lawyers Have Employment Problems

Students who are not interested in a career in labor and employment law often ask me why they should consider taking my employment law class at New York Law School. The answer is simple. Because lawyers are employees too. They can run into employment problems, their families can have employment law problems and their clients can have employment law problems. 

One illustration of this is a August 12, 2010 New York Law Journal article about an associate suing Nixon Peabody, a large law firm over a bonus he claims that he is entitled to. 

Mitchell H. Rubinstein

Should a lawyer Accept a Temporary Job?

Our sister blog, Legal Skills Prof Blog (which is edited by Jim Levy who is a contributing editor of this blog) ran an interesting story on Nov. 23, 2010, which you have to read to believe. Jim cites to two sources who question whether an out of work lawyer should accept temporary work. The concern is that this type of work would not look good on a resume. Jim does not  comment on this; but I commented on his blog and will comment here. 

The worst thing on a resume is a gap because that implies that the person was fired. Whether that is true or not that is simply the implication. So, what is a person suppose to do? Getting a job as a temp shows that the person is willing to work and is not concerned with titles or form. 

Sure, no one wants to be in this situation; but given the economy many lawyers find themselves in this situation. The responsible thing to do is to try to get out of it anyway you can. 

Mitchell H. Rubinstein

School Law Jobs

School Law Jobs
Job Title	Employer	Job Location
Legal Counsel	Kyrene School District	Tempe, Arizona
Labor & Employment Attorney	Lozano Smith	Fresno, California
Mid-Level/Senior Special Education Attorney	Harbottle Law Group	Orange County, California
Special Education Attorney	Lozano Smith	Fresno, California
School Law Attorney	Brannan Legal Search	Chicago, Illinois

 

Article on Atty's Fees After Perdue Supreme Court Decision

U.S. Supreme Court Decision On Enhancing Civil Rights Fees is an interesting June 16, 2010 New York Law Journal article about Perdue v. Kenny A ___U.S.___(April 10, 2010). The article summarized the Court's holding in part as follows:

Supreme Court precedent thus established that although there is a "strong presumption" that the lodestar amount is a reasonable fee, the "presumption may be overcome in "rare circumstances in which the lodestar does not adequately take into account a relevant factor for determining a reasonable fee. An attorney's performance and results obtained justifies a lodestar enhancement only in "rare" and "exceptional" cases in which there is "specific evidence" that the lodestar is not adequate to attract competent counsel.

Because the Court treated superior performance and results obtained "as one," the pertinent question for the district court is whether superior attorney performance was adequately taken into account in the lodestar. The Court recognized three possible circumstances in which such enhancement may be appropriate:

1. Where the method used in determining the hourly rate "does not adequately measure the attorney's true market value[,]"for example, because the hourly rate is based only on a single factor such as experience. In the author's view, this reasoning is puzzling because in these circumstances it would seem that the solution would be to determine an appropriate hourly rate rather than determine whether an enhancement is warranted.

2. "Second, an enhancement may be appropriate if the attorney's performance includes an extraordinary outlay of expenses and the litigation is exceptionally protracted."

3. Compensation for delay in payment may be made "'either by basing the award on current rates or by adjusting the fee based on historical rates to reflect its present value;'" however, it is also possible that an enhancement may be appropriate for costs caused by unanticipated delay, especially if unexpectedly caused by the defense.

The Court stressed that any enhancement must be calculated using a method that is reasonable, objective, and capable of meaningful appellate review. The Court reversed the district court's 75 percent lodestar enhancement because the district court failed to provide adequate justification for it. The Supreme Court questioned why a 75 percent enhancement was granted instead of, say 50 percent, or 25 percent, or 10 percent?

Mitchell H. Rubinstein

Attorney Sanctioned For Not Following Appellate Court Rules

Cottonwood Financial v. Estes, from the Wisconsin Court of Appeals, District III, dated May 25, 2010 is a decision that attorneys should all be aware of. It reminds of us of the importance of following court rules. The court criticizes the attorney for writing a one page letter instead of a reply brief and states that plaintiff's brief:

violated the rules of appellate procedure by failing to provide proper citation to the appellate record or to the relevant case law. While not bothering to properly cite within it, Estes also submitted an excessively long, 230-page appendix. Including nearly the entire record in the appendix defeats the very purpose of an appendix. Further, her brief’s table of authorities fails to comply with WIS. STAT. RULE 809.19(1)(a), which requires “reference to the pages of the brief on which [the authorities] are cited.” It is unacceptable to merely indicate “passim,” without indicating even the first page at which an authority appears in the brief. Nor is it acceptable to list in the table nine chapters of the Wisconsin statutes as a single authority, or, for that matter, a single chapter, or an entire code, or multiple sections of a federal act—all of which Estes did here, and all of which direct us only to “passim.

Hat Tip: Legal Writing Prof Blog

Mitchell H. Rubinstein