Friday, July 3, 2015
New York City’s Office of Administrative Trials and Hearings is seeking individuals to serve on its Contract Dispute Resolution Board panels
Tuesday, May 12, 2015
In an LA Times editorial yesterday, Erwin Chemerinsky, Dean of Cal-Irvine Law, urges California to adopt the standardized Uniform Bar Exam. New York has recently done the same.
Thursday, November 6, 2014
The Texas Board of Law Examiners released results for the July 2014 bar exam yesterday. A summary:
- 77.1% overall pass rate;
- 80.9% pass rate for first-time takers from Texas law schools;
- 38.9% pass rate for repeat takers from Texas law schools;
- Baylor had the highest overall pass rate at 90.7, followed by Texas (87.7%) and Houston (85.1%);
This is the complete summary. Contratulations to the newest Texas attorneys!
Tuesday, April 1, 2014
Brian Clarke (Charlotte) has written an extremely important and ultimately courageous post, "Law Professors, Law Students and Depression . . . A Story of Coming Out (Part 1)" at The Faculty Lounge on depression and anxiety's alarming incidence among attorneys. Clarke relates some truly disturbing statistics on depression and suicide in the legal profession (emphasis in original):
Lawyers, as a group, are 3.6 times more likely to suffer from depression than the average person. Of 104 occupations, lawyers were the most likely to suffer depression. (Both of these statistics are from a Johns Hopkins University study to which I cannot find a link).
Further, according to a two-year study completed in 1997, suicide accounted for 10.8% of all deaths among lawyers in the United States and Canada and was the third leading cause of death. Of more importance was the suicide rate among lawyers, which was 69.3 suicide deaths per 100,000 individuals, as compared to 10 to 14 suicide deaths per 100,000 individuals in the general population. In short, the rate of death by suicide for lawyers was nearly six times the suicide rate in the general population.
Clarke continues along this vein and introduces his own story fighting mental illness in this first in a three-part series on the subject.
Some states have added a mental health component to the continuing legal education requirements, and many state bar associations have established hotlines and resources for attorneys battling mental illness. The Texas Lawyers Assistance Program serves this latter function in Texas -- the Program's 24-hour hotline number is 1-800-343-8527.
Saturday, March 22, 2014
Wednesday, March 12, 2014
A Fresno, California judge has disqualified himself from a civil case after the trial's conclusion but before signing the final judgment following his admission that he was Facebook friends with an attorney in the case. The Fresno Bee reports:
The judge who smacked Paul Evert's RV Country with a $4.5 million defamation verdict has disqualified himself from the case after he admitted that he was Facebook friends with one of the lawyers who prevailed in the Fresno County Superior Court civil trial.
Judge Jeffrey Hamilton's decision to give up the case appears to follow state judicial ethics guidelines. It also puts the verdict in question because he had not signed the final judgment, and could give rise to Evert and his employees getting a new trial.
The story suggests that prior to trial commencing, the judge revealed to all parties that he was friends with the plaintiff's attorney. No party lodged an ojection to the judge presiding upon that revelation. However, the judge failed to disclose his Facebook friendship until after he ruled for the plaintiff, who was represented by his Facebook friend, in a non-jury trial. In the defense motion to disqualify, defense counsel claimed that the judge's relationship with plaintiff's counsel was "was closer than had been previously disclosed by Judge Hamilton," and that had the Facebook connection been disclosed, defendant would not have waived a jury trial.
Notably, California Judge's Association Judicial Ethics Opinion No. 66 (2010) relating to judicial use of social networking states:
When a judge learns that an attorney who is a member of that judge’s online social networking community has a case pending before the judge the online interaction with that attorney must cease (i.e. the attorney should be“unfriended”) and the fact this was done should be disclosed ... Regardless of the nature of the social networking page, maintaining online contacts while a case is pending creates appearance issues that cannot be overcome through disclosure of the contacts.
- Judge is Disqualified After Sending Litigant a Facebook Friend Request
- Texas: Facebook "Friendship" Alone Does Not Require Recusal
- Extraneous Remarks Leads to Remand for Re-Sentencing
- Estlinbaum, Social Networking and Judicial Ethics
- Florida: Facebook Friendship Leads to Judicial Disqualification
- Social Networking Judges and Attorneys
- Judges and Facebook
Tuesday, March 11, 2014
Over at the Appellate Advocacy Blog, Tonya Kowalski (Washburn) has an interesting post on popular fonts for legal writing, including some informative links on typeface requirements in the various courts around the country. Recommended.
Thursday, June 13, 2013
Sui Generis recently published an interesting article about Android Apps for lawyers. This article will be very useful to lawyers like me who cannot live without an Android Smartphone. My current choice, by the way, is the Samsung Galaxy Note 2. As the article states:
For conducting free legal research on the fly, look no further than the Fastcase app. Another great resource is dLaw, which provides free access to federal statutes and rules along with access to Google Scholar’s legal research capabilities, and also offers paid access to various state statutes and rules.
For a functional legal dictionary, there’s LawGuide. Another great resource is the NYSBA’s ethics app, which provides full, searchable access to all New York ethics opinions.
For specific practice area tools, there’s Karl’s Mortgage, a mortgage amortization app and QuickTax, an app that is chock full of tax-related information.
Picture it Settled is an app that is currently free, although that may start charging an access fee down the road. This app aids in settlement negotiations by using predictive analytics — including vast amounts of settlement data — to assist lawyers during negotiations.
And of course, there are apps devoted to legislative and Supreme Court topics, including We the People (the full text of the U.S. Constitution), Congress (everything you ever wanted to know about Congress and pending bills), and PocketJustice (everything you ever wanted to know about the U.S. Supreme Court).
If a mobile office is what you seek, the following apps will help you achieve that goal. First, there’s Documents to Go, which is a great, albeit somewhat pricey ($24.95), word processing app that allows you to create Word documents.
Hat Tip: New York Public Personnel Law
Monday, July 23, 2012
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
Wednesday, July 11, 2012
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
Tuesday, March 13, 2012
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
Tuesday, February 28, 2012
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
Saturday, February 25, 2012
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  [internal quotation marks and citation omitted]; see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 179 ; Matter of Goldsmith v DeBuono, 245 AD2d 627, 628 ). 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 ; Matter of Mirrer v Hevesi, 4 AD3d 722, 723-724 ; Doolittle v McMahon, 245 AD2d 736, 738 ).
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
Saturday, November 19, 2011
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
Thursday, November 17, 2011
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
Monday, November 7, 2011
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
Thursday, October 27, 2011
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
Thursday, September 22, 2011
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
Tuesday, August 23, 2011
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.
Monday, July 25, 2011
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