Legal Profession Blog

"The Provence Of Licensed Attorneys"

The Florida Supreme Court denied the reinstatement petition of an attorney who had been suspended for two years in 2006 for negligent misappropriation. The court agreed with the Bar that the petitioner had not been in strict compliance with the order of suspension. It rejected a referee's finding that he had not practiced law while suspended; rather, during the course of paralegal and consulting work:

...although [he] informed his clients that he could not dispense legal advice, he was not simply identifying applicable statutes and ordinances with regard to opening arcades. In fact, [he] testified that he would find the ordinances applicable to the jurisdiction in which an arcade was located and admittedly provided advice based on his legal skill. which is greater than that possessed by the average citizen. Further...he gave advice on opening arcades, reported on changes in the law applicable to this area, reviewed leases, researched ordinances applicable to new arcade sites, and consulted with a representative of a state attorney's office on the proper interpretation of gaming law for an attorney's criminal client...trading on one's enhanced legal skill and knowledge to advice clients on how to legally proceed with a business transaction and on changes in the law based on statutory research and legal interpretation is the provence of licensed attorneys.

(Mike Frisch)

Threats Draw Sanction

A District Committee of the Virginia State Bar has imposed a public reprimand in a contested matter where an employee of the attorney had confided to her that she had never divorced her third husband before marrying husband number four. After the fourth husband had died, the employee sought the lawyer's advice about the possible detrimental effect of this information on her claims for veteran's benefits that she had applied for after the death.

There was then an employment dispute that led to a bar complaint and a claim for unemployment benefits. The attorney sent the now former employee an email threatening to notify the Veterans Administration of the problem. The lawyer sent a second email to the former employee advising her that the issue had been brought to the attention of a United States Attorney.

The committee found that the lawyer had breached the duty of confidentiality and presented or threatened to present charges solely to obtain an advantage in a civil matter. Interestingly, the committee found "that it is not necessary to find that an attorney client relationship existed between [the attorney and employee] in order to trigger [the attorney's] obligations....under Rule 1.6." (Mike Frisch)

Reinstatement Recommended

Notwithstanding the objections of the Administrator, an Illinois hearing board has recommended that a petition for reinstatement be granted. The attorney had been suspended in 2006 for a year and a day for a bizarre scheme to induce fellow members of a public defender's office to leave to join a firm that she purportedly was starting up with the aid of family wealth and a committed source of business. The information given to her colleagues was false:

Petitioner testified [in the reinstatement] that in 2001 she spoke to two other attorneys in her office, Peter Gruber and Gregory Brown, about forming a law firm. Thereafter, she met with three additional attorneys from the public defender’s office, Myrrha Guzman, Jeanne Meyer and Kimberly Small, and an attorney from the Kane County State’s Attorney’s office, Christie Krupp, and offered each of them positions as associates in the firm. Petitioner represented to the latter attorneys that she, Gruber, and Brown were forming a law firm, that they had municipal contracts with the City of Elgin, Dundee and Carpentersville and they would be handling closings for a new housing development. She advised the attorneys that she would be funding the firm with her personal wealth which derived from property ownership, an interest in a shopping mall, and gravel rights. In fact, her representations regarding the work to be done by the firm and her personal wealth were completely untrue.

Petitioner acknowledged that in support of her scheme she created, or assisted in creating, and disseminated articles of incorporation for her intended law firm. Further, she identified a deposit slip reflecting a deposit of $5,200,000 into an account at Bank One, and stated that the handwriting on the deposit slip was hers. She did not recall creating the deposit slip, but has no reason to believe she did not create it. She stated she does not recall all of her statements and actions from 2001 and early 2002.

Petitioner testified she looked at several buildings in Kane County to house her purported law firm, and worked with a real estate agent. She entered into contracts for several specific properties, but then reneged on her promise to purchase. In one instance she forfeited $5,000 in earnest money.

Petitioner acknowledged representing to the prospective members of her law firm that she would be establishing a foundation known as Cindy’s Wishful Thinkings, Incorporated. Although the foundation was entirely fictitious, she created or participated in the creation of various documents for the foundation, including bylaws and resolutions, and compiled a list of assets, the value of which was represented to be over $41 million, that purportedly belonged to the foundation. Petitioner further represented to the attorneys that she intended to form a not-for-profit-organization known as the Monica Gifford Foundation to assist at-risk youth in Kane County, and acknowledged creating bylaws for that foundation. The foundation was never established because Petitioner did not have the financial means to fund it. Petitioner stated that her discussions with the other attorneys were not conducted in secret, and their intentions were well known within the office.

In 2001 Petitioner also told various people that she was suffering from leukemia and undergoing chemotherapy. She acknowledged that those statements were untrue and stated she regrets making the statements. Petitioner acknowledged that all of her false statements and documents were dishonest, wrong, egregious, and horrible. She denied that she knew at the time of her misconduct that she was engaging in deceitful behavior.

The hearing board evaluated medical testimony offered by the petitioner and the Administrator in concluding that reinstatement would not be detrimental to the public and the profession;

Consideration of the foregoing factors is intended to aid in our determination of Petitioner's rehabilitation, present good character, and current knowledge of the law. While Petitioner engaged in serious misconduct and her behavior cannot be attributed to immaturity or lack of experience, she has served the length of suspension the Supreme Court deemed appropriate for the misbehavior. In fact, she will have significantly exceeded that time period by the time these proceedings are concluded. While on suspension, Petitioner has been gainfully employed, has been in regular treatment for her disorder, and has not engaged in any further dishonesty. She was candid and forthright in presenting her petition, and the witnesses who testified on her behalf believed she has a very good reputation for honesty and integrity. Petitioner also supplied evidence that she has kept abreast of the law and has completed the hours of continuing legal education required of practicing attorneys.

The hearing board recommends that the petitioner continue with treatment and write a letter of apology to the former colleagues. Carolyn Elefant had a post at MyShingle that discussed some lessons from the underlying disciplinary case.  (Mike Frisch)

Return To Sender

In Hawaii, when the Supreme Court orders an attorney to surrender their law license, they literally mean that you are supposed to return the original. Hence, the following order:

Upon consideration of J. Michael Dwyer's June 1, 2009 Letter to Lyn Flanigan and Naomi Komenaka, it appears that Petitioner Dwyer states that he is unable to return his original license to practice law to the Clerk of this court, as required by our April 9, 2009, order granting petition to resign and surrender license, because he may have lost the license. Therefore,

IT IS HEREBY ORDERED that the Clerk shall accept Petitioner Dwyer's June 1, 2009, letter in lieu of the original certificate evidencing his license to practice law in this State. If Petitioner Dwyer finds the original certificate evidencing his license to practice law in this State, he shall immediately deposit the same with the Clerk of this court.

DATED: Honolulu, Hawai‘i, July 1, 2009.

(Mike Frisch)

Consequences Of Conviction

The Illinois Administrator has filed a complaint based on an attorney's conviction after jury trial of felony aggravated driving under the influence and failure to report an accident involving death. The complaint alleges the following factual predicate of the conviction:

On or about August 14, 2004, after consuming two to three beers while watching the White Sox game on television, Respondent left his home in his van to get some food at a Wendy’s fast food restaurant. On his way to Wendy’s, Respondent was driving north bound on Waukegan Road, in Deerfield, Illinois, at approximately 11:00 p.m. when he struck Thad Martens ("Martens") in the 1950 block of Waukegan Road as Martens was riding his bicycle alongside the road.

After hitting Martens, Respondent returned home, leaving the van and taking another automobile back out to get food at Wendy’s. While Respondent was gone, his wife...began looking in the house for him and when she checked to see if he had left in a car, she saw the van’s windshield, side mirror and side window had been broken.

Upon Respondent’s return home with the food, he ate his food and his wife questioned him about the damage to their van. Respondent told his wife that he hit a bike that was in the middle of the road.

At approximately 12:00 a.m. on August 15, 2004, [his wife] asked Respondent to take her to the place he hit the bike. Respondent and [his wife] then returned to the scene of the accident and observed Thad Martens lying on the ground by the roadside, unconscious. Respondent and [his wife] then returned home and discussed what they should do.

On August 15, 2004 at 1:42 a.m., Respondent and his wife appeared at the Deerfield Police Department to report the incident. Shortly thereafter, while at the police station Respondent submitted to a breathalyzer test which registered .097.

Martens sustained multiple injuries due to the August 14, 2004 incident including four broken limbs, severe brain trauma, and partial paralysis. He died several months later after contracting pneumonia in a nursing home.

A news report in the Deerfield (Il.) Review about the trial states that prosecutors alleged that the lawyer ate a cheeseburger and fries while the victim lay dying.

In a disciplinary proceeding, the conviction is accorded conclusive effect. The lawyer may not offer evidence to negate any essential element of the offense.  Here, the failure to report appears to be a strict liability offense without a "knowing" element. The lawyer may be able to contend that he did not realize he hit a person until the return to the scene and that the facts do not show indifference to human life. The almost two hour delay in going to the police will certainly be a problem as the statute requires a report within a half hour. If he is an alcoholic and in recovery, he might avoid disbarment here under Illinois precedents.

Where there is plea, the attorney is bound by any admission of fact made in connection with the plea. When there is a contested trial, it is more difficult to precisely determine what underlying facts have been conclusively proved. Of course, the attorney also will be bound any admissions made in the criminal case. (Mike Frisch)

Public Information Promotes Public Protection

Here's a nice new feature of the web page of the Michigan Attorney Discipline Board-- petitions for reinstatement to practice law are now posted on line. The petition has notice that persons interested in either supporting or opposing the application for readmission should contact the responsible disciplinary counsel.

I think that this is a great idea that should be followed by all those jurisdictions (such as Arizona, Pennsylvania, Louisiana and Illinois) that have consumer (i.e. public) friendly web pages should incorporate into their sites. All jurisdictions that don't have consumer friendly web pages should but will not until someone (HALT, perhaps) pushes the issue. All public information about attorney discipline proceedings should be available on line if we are serious about public protection as the primary goal of legitimate self-regulation. (Mike Frisch)

Well-Intentioned Neglect Results In Suspension

The New York Appellate Division for the First Judicial Department resolved a disagreement over the appropriate sanction by imposing a three month suspension in a matter involving two instances of client neglect. A hearing panel had recommended a six month suspension. On review, a referee favored a public censure. As one might suppose, the attorney sought a private reprimand rather than censure; disciplinary counsel supported the six months. The court here split the difference.

The court's view of the misconduct:

As found by the Referee and conceded by the Hearing Panel, the evidence

"clearly indicated that the respondent, although taking on matters that he was not prepared to handle, sought to assist members of his community who did not have access to appropriate legal assistance and/or did not have the funds to procure such assistance. His motives and intentions were clearly those of a person who sought to do good deeds. In many cases he took on matters without compensation, hoping that eventually he would be able to resolve the matters to the benefit of his clients. However, he often lacked the expertise and finances to attain these goals."

The conclusion, endorsed by the Hearing Panel, is that respondent's neglect of the client matters was inadvertent and that misuse of his attorney escrow account was the result of confusion with his personal account, which is maintained at the same bank and bears an account number ending with the same two digits.

As to sanction:

Respondent admits that he finds being a solo practitioner to be overwhelming and should seek employment with a law firm to avoid similar problems in future. He adds that he suffers from seasonal depression and has received therapy, which he has found to be helpful. Although respondent has produced no expert medical evidence to establish a causal connection between this condition and his neglect, the Committee concludes that his failure to exercise suitable diligence is the result of taking on more matters than he could handle, including many cases resulting in little or no payment for his services.

While public censure is a suitable sanction for neglect of client matters if an attorney has no history of misconduct warranting disciplinary action, where the attorney has previously neglected legal matters and received admonitions, a period of suspension is appropriate. In view of respondent's extensive pro bono work, service to his community and the lack of venal intent, a period of suspension of three months consitutes the appropriate sanction.

(Mike Frisch)

 

OK To Serve

The Judicial Ethics Advisory Committee of Florida has rendered an opinion on the following question:

The Inquiring Judge’s synagogue has a committee comprised of several members of the synagogue that review applications submitted by prospective members who assert that they cannot afford to pay full membership dues. An applicant may submit personal financial information to be reviewed by the synagogue committee to determine if the applicant qualifies for reduction of membership dues, and if so, by how much. The only personal contact that the synagogue committee has with applicants is when, in rare instances, applicants request a face-to-face meeting with the committee to present their case. Although the synagogue committee tries to keep its membership anonymous, the names of committee members can be determined if this information is sought.

The Inquiring Judge wants to know if a judge may be a member of this synagogue committee.

Answer: Yes.

(Mike Frisch)

     

Probation Failures Lead To Disbarment

The California State Bar court recently granted a motion to publish a 2007 decision alerting the Bar to the consequences of non-cooperation with the disciplinary process. The attorney has almost no California practice; rather, he practices in Washington State. He has struggled with alcoholism but has been sober for over a decade.

He was subject to a public reprimand in Washington for wrongful retention of a $1,700 advanced fee (since repaid after the client obtained a judgement) that resulted in a reciprocal California sanction of private reproval with conditions attached for 12 months. His failure to fulfill the terms resulted in a series of sanctions that ultimately led to disbarment:

Had [he] complied with those [initial] conditions, he would not be facing disbarment. Howver, since his private reproval, [he] has had his reproval period extended by one year, has received a six-month stayed suspension and two years' probation, has had his probation revoked and has suffered a six-month actual suspension. This increasingly strict discipline should have provided [him] with both the incentive and opportunity to comply with the conditions of his probation, and yet he is before us a fourth time for violating another court order. 

I am reluctant to criticize any decision that underscores the obligation to cooperate with the disciplinary system, but there is a fair argument that the initial probationary conditions (not imposed by the disciplining Washington court) for a lawyer with virtually no California practice should not have been imposed. This has led to a significant drain of limited bar resources to little beneficial end. (Mike Frisch)

Malpractice Findings Do Not Bind Disciplining Court

The Wisconsin Supreme Court imposed a 60 day suspension in a matter involving sloppy trust account administration and other misconduct:

Here, eight of the alleged counts of misconduct involved sloppy and careless trust account violations.  Accurate trust account records are important to ensure clients and the public have confidence in an attorney's management of client funds.  We are mindful, however, that the referee found clients were not adversely affected by the trust account anomalies that occurred here.  Attorney McKloskey stipulated to this misconduct and argued, in mitigation, that he relied on an assistant to handle these matters. 

The remaining three counts of misconduct reflect serious errors of judgment, but again, there was no finding that Attorney McKloskey was dishonest or that he benefited financially from the misconduct he committed in connection with these complex and interrelated matters.  Therefore, we agree that a 60-day suspension is reasonable in this case.  The referee also recommended the court impose the costs of this litigation on Attorney McKloskey, and we accept that recommendation as well.

The court agreed with the conclusion of the referee that certain findings in a related legal malpractice action (finding no attorney-client relationship with a putative client) were not entitled to preclusive effect in the bar discipline case:

In proceedings before the referee, Attorney McKloskey advanced a number of affirmative defenses to the charges of misconduct relating to his handling of these matters.  He noted that in the civil malpractice action he was found to have represented the company, TJC, not D.C.  So, in proceedings before the referee, he argued that issue preclusion should apply, and he took the position that he did not represent D.C. in the Westerfeld litigation. 

The referee was not persuaded by these arguments.  Wisconsin courts hold that even when there is no express attorney-client relationship, such a relationship may be implied under the circumstances of a particular case, depending on the nature of the work performed and the circumstances under which client confidences may have been divulged. 

 As the referee noted, the range of disciplinary charges filed by the OLR was far broader in scope than the malpractice claim.  The referee also noted that Attorney McKloskey had represented D.C. on a number of related matters and had communicated directly with him regarding these matters, including consulting him about a $100,000 settlement offer in the Westerfeld matter.

In other words, D.C. reasonably relied on Attorney McKloskey to represent his interests in the Westerfeld matter.  Attorney McKloskey also knew about the parties' divorce and knew that it was acrimonious.  The referee thus found that "[D.C.] was a client" and noted that Attorney McKloskey's testimony in his own defense "left much to be desired."  The referee concluded that "[Attorney] McKloskey should not have blindly accepted oral check writing instructions from [T.C.]." 

The attorney had represented a closely-held company and was found to have ceased to communicate with one of the two principals of the business during the course of complex litigation and the eventual resolution of the matter. (Mike Frisch)

No Boxes For You!

An opinion from the South Carolina Advisory Committee on Standards of Judicial Conduct:

RE: Propriety of a probate judge seeking donations of cardboard boxes in order to facilitate the Probate Court's move to a new facility.

FACTS

The Probate Court in a particular county is moving to a new facility. The Probate judge has been informed that the judge will need to seek donations of cardboard boxes from local businesses in order to facilitate the move. The judge is concerned that seeking such donations might constitute a violation of the Code of Judicial Conduct.

CONCLUSION

A Probate Judge may not seek donations of supplies to facilitate the Probate Court's move to a new facility.

OPINION

A judge shall not accept a gift or favor from anyone except in connection with a public testimonial, a bar-related function, or activity devoted to the improvement of the law. Canon 4D(5), Rule 501, SCACR. Furthermore, Canon 2.B of the Code of Judicial Conduct, Rule 501, SCACR, provides that a judge shall not lend the prestige of the judicial office to advance the interests of the judge or others. For the judge to seek out donations of boxes from local businesses, the judge would be asking for a gift or favor not related to a public testimonial, a bar-related function, or activity devoted to the improvement of the law. It would also require the judge to lend the prestige of judicial office to advance the interests of the Probate Court and could induce pressure on the local businesses to donate. Thus, the Probate Judge may not seek donations of boxes or other moving supplies to facilitate the move of the Probate Court.

(Mike Frisch)

Misconduct:The Movie

A Louisiana hearing committee has recommended the permanent disbarment of a lawyer as a result of his federal conviction for bribery and conspiracy in connection with a program that received federal funds.  The attorney was the director of the Louisiana Film Commission (a post that presumably did not involve directing the films) and had submitted inflated budgets that caused fraudulent and inflated tax credits to be issued. His payoff was $67,000 in bribes.

According to the memo filed by the Office of Disciplinary Counsel (quoted in the report), "[h]is corruption of [the] process for his own personal financial gain has threatened to set back the filming industry in Louisiana and has cemented once again into the minds of citizens of this state and around the country the unfortunate belief that corruption runs rampant in this state."

A Washington Post article about the criminal case is linked here. (Mike Frisch)

Rule Violation By Disciplinary Counsel No Basis to Dismiss Misconduct Findings

The New York Appellate Division for the Fourth Judicial Department has censured an assistant district attorney who violated a court order that prohibited him from speaking to a testifying expert witness during a recess. He also had initially denied doing so. In an unrelated matter, the ADA had falsely informed a victim's advocate and the victim's family that he had objected to a plea bargain in the case.

The court found that disciplinary counsel had violated procedural rules by showing the ADA's response to the bar complaint to a witness. The pertinent rule allows only the complainant to see the response. However, the court found that the violation did not necessitate dismissal of the bar charges. The rule is designed to protect the attorney's reputation from potentially unfounded complaints and there was no public disclosure of confidential information.

This link will take you to the court's web page. The case is Matter of Rodeman, decided on July 2. Additional details may be found here. (Mike Frisch)

Both Sides Now

A Louisiana hearing committee has recommended a six month suspension with two months deferred in a matter where an Orleans Parish Assistant District Attorney continued to represent criminal defendants in the Parish after taking his oath of office as a prosecutor.  The complaint was filed by the New Orleans District Attorney.

The Committee was not entirely unsympathetic to the lawyer:

While the Committee finds clear and convincing evidence supports a finding that the violations were knowing, however, that evidence does not support a finding that the violations were intentional. It appears to the Committee that Respondent thought there would be no harm in his perfunctory appearences to assist in the winding up of the cases against his former clients. Respondent's letter to the Disciplinary Counsel raises at least the likelihood that disclosures of the conflicts were made and consented to by the courts and by those whose interests were conflicted...No countervailing evidence was offered.

One concern I have here is that the attorney, after submitting the letters referred to above, failed to participate in the disciplinary proceedings. I have some difficulty giving any weight to favorable claims in the letters that were not made under oath and subject to cross-examination. (Mike Frisch)

Improper Remarks No Basis For Reversal

The Delaware Supreme Court found that a prosecutor had crossed the line into improper closing argument by mocking the defendant's testimony as "ridiculous," "cute," and a "sales pitch" but declined to find reversible plain error and affirmed a second degree murder conviction. The court noted that the case was not close and that the defense had not objected to the improper remarks. (Mike Frisch)

Regret Is Not Enough

An attorney who had failed to file a personal injury suit and allowed the statute of limitations to expire was suspended for five months. The Tennessee Supreme Court reviewed and affirmed the sanction, rejecting the attorney's appeal seeking a public censure or shorter suspension. the court set forth the standard of review, concluding that the sanction was not arbitrary or capricious and was suppoted by substantial and material evidence. While the attorney had offered to pay the clients $9,000 and told them about the blown statute, he did not advise them of a possible malpractice claim or to seek the advice of independent counsel. the attorney had previouslt been suspended for 30 days for unlawful conversion from his law firm of an amount in excess of $90.000. The court here did not find that his "expression of regret is sufficient to merit a reduction of the sanction imposed...." (Mike Frisch)

"No Other Appropriate Sanction"

The District of Columbia Court of Appeals heaped praise on a hearing committee for its "meticulous findings and exlemplary analysis" and disbarred an attorney for a laundry list of seroius violations that included seeking to have his own mother declared incompetent and to put himself in charge of her substantial assets. He then obtained her signature on legal proceedings intended to benefit himself after she became incompetent.

The court stated:

Respondent has not challenged the Board [on Professional Responsibility]'s recommendation of disbarment. One can readily see why, for as the Board stated, "There is no other appropriate discipline on the facts and circumstances of this case."

(Mike Frisch)

Disclose, Disclose

From the California Bar Journal:

[An attorney]  was suspended for one year, stayed, placed on two years of probation and was ordered to take the MPRE within one year. The order took effect Jan. 3, 2009.

In 2005, [he] represented a defendant in federal court in Oklahoma although he was not a member of that state’s bar. He and his co-counsel incorrectly believed [he] could be admitted if the co-counsel sponsored and “waived” him in. When they learned that was not the case, [He] filed a formal application for admission to the Oklahoma District Court Bar.

As part of the application, he was required to disclose all legal proceedings in which he had been charged with the commission of a crime. Although [he] disclosed he had pleaded no contest to a charge of driving under the influence in 1996, he did not disclose that between 1989 and 2003, other criminal charges, including reckless driving and disturbing the peace, had been filed against him. Some were dismissed and some resulted in conviction.

[The attorney] stipulated that by filing an incomplete application, he failed to maintain the respect due to the courts.

He also was privately reproved in 2001.

(Mike Frisch)

Suing The Dead

An attempt to substitute a law firm for a deceased defendant was rejected by the New York Appellate Division for the First Judicial Department:

In December 2006, just before the statute of limitations expired (CPLR 214[5]), plaintiff commenced this action naming as sole defendant the driver of a car that had allegedly struck plaintiff's car, injuring plaintiff. However, that driver had died in December 2004. After trying to identify an administrator of the driver's estate and starting a second action against the driver's wife, on the mistaken belief that she was the administrator of his estate, plaintiff moved to substitute, as a party defendant, the law firm assigned to this matter by the deceased driver's liability insurer. That motion was granted on default and the court subsequently denied the law firm's motion to vacate the default and dismiss the complaint.

Since one cannot commence an action against a deceased person, this action was a nullity from its inception (see Marte v Graber, 58 AD3d 1, 2-3 [2008]). Consequently, the motion court lacked jurisdiction to hear and determine the initial action and erred in denying defendant's motion to dismiss.

(Mike Frisch)

Threat From Prosecutor Draws Reprimand

TwinCities.com reports:

The Minnesota Supreme Court has publicly reprimanded Dakota County Attorney James Backstrom for discouraging a medical examiner from letting a co-worker to testify in a Washington County murder trial.

Backstrom will pay a $900 fine.

In a one-page decision, filed today, the state's highest court followed the disciplinary recommendation issued last month by the Office of Lawyers Professional Responsibility.

The Minnesota Board of Public Defense filed the original complaint. The state public defenders argued that Backstrom overstepped his bounds by sending an e-mail to Dakota County Medical Examiner Lindsey Thomas telling her she could lose her job if she or one of the other doctors in her office testified for defense attorneys in neighboring counties.

Following the e-mail, a doctor in Thomas' office declined to testify as an expert witness for the defense in the Washington County murder trial of Nicole Beecroft, 19, who was later convicted of first-degree murder and sentenced to life in prison for killing her newborn daughter.

Backstrom accepted the recommendation of the Lawyers Board last month and agreed to the fine. He issued a public apology for sending the email, acknowledging that it gave the appearance he was interfering in an ongoing court trial.

"I did not intend to adversely impact the Washington County trial in any respect," Backstrom wrote. "However, sending this email at the time I did represented a lack of judgment on my part for which I apologize."

The court's order is linked here. Thanks to Professor Maury Landsman of the University of Minnesota Law School for advising us of this disciplinary action. (Mike Frisch)

Law School 4.0: Are Law Schools Relevant to the Future of Law?

[posted by Bill Henderson, crossposted to ELS Blog]

Paul Lippe, a well-known Silicon Valley GC and founder of Legal OnRamp (LOR), recently posted an essay on the Am Law Daily that essentially argues that law schools, at least in their present form, are not relevant to the future of law.  [Lipshaw recently opined on Lippe as well.] Here is Paul's opening graph:

If I need some insight into the future of medicine, I might head over to Stanford Medical School. If I wanted to learn about likely directions in finance and hedge funds, I might visit Penn's Wharton. If I were looking to make investments in computing, I might arrange a tour of a lab at MIT. If I decided to learn something about where legal practice, law firms, and legal departments will be in 2014, where would I go? Not to law school.

According to Paul, it is not that we are working on irrelevant stuff.  It is worse than that:  we are enjoying a comfortable living while loading our students up with debt and having a low opinion of practicing lawyers and the clients they service.  Paul recounts a recent meeting with law school deans in which he "asked the question, 'If you decided the purpose of law school was to maximize the comfort and income of the faculty, what would you do differently?' The answer: 'Nothing.'" 

Some people might be tempted to lump Lippe together with Judge Harry T. Edwards, who wrote several withering critiques of legal education during the early and mid-1990s.  See, e.g.,  Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich L. Rev. 34 (1992); Harry T. Edwards, A Postscript, 91 Mich. L. Rev. 2191 (1993).  Such lumping together is a mistake.  Edwards' criticisms were largely centered on the present--that professors where disengaging with doctrine and increasingly irrelevant to judges and practicing lawyers. 

In contrast, the gravamen of Lippe's remarks are about thought leadership and the ability to identify future solutions to macro-level problems.   Consider the following trend-lines, which are representative of the types of issues that Lippe often discusses in his LOR and Am Law Daily columns:

• Nature and Cost of Civil litigation.  With the proliferation of electronic documents, civil litigation is becoming more time-consuming and expensive.  Thus, disposition of cases is increasingly influenced by the financial wherewithal to wage prolonged campaigns in court rather than the merits of underlying disputes.  A thought leader would be proposing (a) how to re-engineer the civil justice in a way that reduces costs and improves access, or (b) how to anticipate and avoid legal disputes through systems that keep clients out of a broken civil justice system. 

Mediation and arbitration are just the beginning, not the end.  For example, the credit card industry has eliminated virtually lawyers from consumer-vendor  disputes.  See Morriss & Korosec, Private Dispute Resolution in the Card Context (working paper, June 2005).  Some would argue that this is a good thing for business and consumers.   Further, the lawyers who innovate through designing such a system will always get a prime seat at the table. In contrast, lawyers wedded to established ways may find fewer buyers of their services.

• Shifting Nature of Clients. Because of the shifting economics of the profession, an ever large proportion of law graduates earn their living as "thing" lawyers rather than "people" lawyer.   Believe it or not, in the 1930s, the dean of Yale Law School was preoccupied with the oversupply of lawyers. Why? Because the majority of Yale grads became general practitioners--i.e., people lawyers--within the local New England economy.  See Charles E. Clark & Emma Corstvet, The Lawyer and the Public: An AALS Survey, 47 Yale L. J. 1272 (1938).  That world no longer exists.  The overwhelming majority of law school graduates will serve as "thing" lawyers, either for government, private industry, or a public interest cause.  Yet, hearkening back to the time of Dean Clark, our entire regulatory framework is premised on the idea of a client who is a single, natural person. 
  

We lawyers claim to be responsive to economic and social forces and readily profess our commitment to the public interest.  See Preamble, MPRC para. 6 ("As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. ... A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.").  Yet, for nearly a century, the pace of regulatory reform for lawyers has been either glacial or non-existent.  And all-too-often, the changes that have occurred are driven by "parochial or self-interested" motives. Id at para. 12.

Under Lippe's thought-leader ideal, members of the legal academy would be re-conceptualizing the assumptions underneath lawyer regulation and proposing an institutionally coherent strategy for altering the regulatory landscape in a way that simultaneously helps ordinary citizens, business, and the democratic process.  In theory, we've got the time, resources, and brain power.  Where is the leadership?

• Cost and Quality of Legal Education.  Over the last 30 years, the cost of a legal education has increased approximately three times faster than the average household incomes.  Yet, it is difficult to identify a corresponding innovation within legal education that justifies the higher cost.  A thought leader conceives of ways to reduce the cost of legal education or equip graduates with a larger skill set that is likely to provide a substantial return on investment.  Here, I am not talking MacCrate-type skills, as important as they might be.  Rather, I am thinking legal-process engineering and the ability to standardize and commoditize legal products in a way that increases predictability and drives down cost.   See, e.g., Richard Susskind's collected works. 
  

If lawyers solve problems, perhaps traditional legal disputes and transactions are a mere subset of  the services we might provide.  What skills are especially relevant to the 21st century global economy?  Once again, because of our time, resources, and brain power, Lippe is surprised we are not leading the conversation.  Maybe he has a point.

More after the jump ... 

Continue reading "Law School 4.0: Are Law Schools Relevant to the Future of Law?"

New Illinois Ethics Rules

The Illinois Supreme Court has issued a press release announcing that it has adopted new Rules of Professional Conduct effective January 1, 2010. Highlights in the new Rules include provisions setting forth ethical duties to prospective clients and a new provision dealing with receipt of confidential information due to a mistake (only obligation is to notify sender).

The full text of the new Rules is linked here. (Mike Frisch)

No Writ But Governor Ordered To Appoint Judge

A retiring Florida judge sought a writ of mandamus compelling Governor Crist to appoint his successor within 60 days from a list submitted by the Judicial Nominating Commission for the 5th Appellate District. The commission had submitted six names after receiving applications from 26 individuals. Governor Crist did not appoint from the submitted list and asking for consideration of three African-American applicants on order to promote diversity on the bench. The commission declined to reconsider and the position has remained vacant.

The Florida Supreme Court held today that a plain reading of the Florida Constitution leads to the conclusion that the Governor has no authority to reject the commission's list. The court declined to order the issuance of the writ as it expressed its belief that the Governor will accept the holding and name a new judge from the submitted list. (Mike Frisch)

Three Partners Suspended

In a lengthy and interesting decision, the Louisiana Supreme Court suspended three law firm partners for six months with three months stayed. The firm had represented the complainant in complex commercial matters since 1985. In 1996, the firm and client executed a revision of a 1992 retainer agreement.

The 1996 agreement was the subject of the disciplinary proceedings. The court found that the "highly unusual [fee] arrangement" created a conflict of interest that violated Rules 1.7(b) and 1.8(a). Even if the fee agreement was fair and reasonable, the firm did not advise the client to seek advice from independent counsel. The court also concluded that the client's business acumen was no substitute for otherwise complying with business transactions with a client provisions of the Rule. Further, the firm's submission of 922 pages of billing document did not establish compliance with the record-keeping obligations of Rule 1.15(b); rather, the submissions made an "utter mockery" of accounting requirements. The firm also violated Rule 1.16(d) in its withdrawal from representation.

A dissent would find no violations ans would not suspend for the violations found by the majority. According to the dissent, the 1996 agreement provided benefits and positive incentives for both the client and the law firm.

(Mike Frisch)

"See Y'all Later"

The Louisiana Supreme Court has suspended a judge for 30 days, rejecting as insufficient the public censure proposed by its Judiciary Commission. The judge was found to have "exhibited improper temperment and demeanor, as well as impatience and discourtesy" in his dealings with a woman seeking a temporary restraining order for domestic abuse. The judge criticized the mother for taking the kids to eat at Subway (which the judge later characterized as an "inside joke"). He then said "good for you" to the father when he said he would bloody his daughter's booty. Then, the ruling;

Heat, big smoke, no fire. You want a divorce, you get a divorce. You're not getting a TRO. See y'all later.

The judge had a well-publicized incident of prior discipline for going to a Halloween party in an Afro wig and then applying black face when the wig did not get the laughs he expected. The court took the prior discipline into account in imposing a suspension here.

A dissent would impose the public censure recomended by the commission. (Mike Frisch)

Boo to Billable Hours

Posted by Jeff Lipshaw

Appellate lawyer and author John Derrick has asked us to put in a link to his book Boo to Billable Hours: A Lawyer's Guide to Better Billing, the contents of which are available on his website for free.  We don't usually do commercial endorsements, but, as far as I can tell, free in this case means free.  So why not?

Here's the blurb:

THE BILLABLE HOUR dominates the legal profession, but is gradually eating away at its soul. It chills the attorney-client relationship. It penalizes efficient lawyers, while rewarding plodding ones. It leads to arbitrary, irrational, and suspect results, in which time is distorted and sometimes invented. It disconnects the amount that is charged from the value delivered. And it fails to produce what it promises, transparency. Its effects are all the worse in law-firm pyramids that impose excessive billing requirements. This straight-talking book critically dissects the practice of billing by the hour, examining how time is actually recorded in a variety of contexts that raise ethical as well as practical concerns. The book is not all about criticism. It also advocates alternatives that shift the focus away from time expended and onto value delivered.

Much Lesser Sanction

In a case decided today, the Wisconsin Supreme Court rejected proposed discipline of a lenghty suspension in favor of a 60-day sit down. the court explained its sanction decision as well as its analysis of the imposition of costs:

The OLR [Office of Lawyer Regulation] charged 13 counts of professional misconduct.  The referee found a failure of proof as to five counts, including the four counts arising out of Attorney...'s representation of J.K.  The four counts involving J.K. provided the impetus for the OLR to commence its investigation into Attorney...'s conduct in 2004.  The OLR would not have learned of Attorney...'s representation of R.M. had it not been for the grievance filed by J.K.  The OLR did not appeal the referee's decision with respect to the J.K. counts.

The most serious allegation of misconduct found by the referee was Attorney...'s alleged $9,630 overcharge in the R.M. personal injury settlement.  It appears that the question of what was the appropriate fee in the R.M. settlement was the most hotly debated issue in this case, and that this single issue accounted for a substantial amount of the total time——and resulting fees and costs——expended by the OLR in prosecuting this matter.  We have concluded that the OLR failed to meet its burden of proof on its allegation that Attorney...overcharged R.M.  We also rejected the OLR's cross-appeal and agreed with the referee that Attorney...fully cooperated with the investigation into his conduct. 

 We agree that the remaining counts of misconduct are serious failings which warrant a suspension of Attorney...'s license to practice law.  However, the failure to maintain proper records is a technical violation, and although we did not overturn the referee's factual findings as to why Attorney Molinaro deferred income from one year to the next, we did agree that his explanation for the deferral was plausible.

While the OLR sought a two-year suspension and the referee recommended a 30-month suspension, this court has deemed it appropriate to impose a much lesser sanction, a 60-day suspension.

Attorney...has practiced law for almost 30 years and has no prior disciplinary history.  This matter has been pending for a significant period of time.  The conduct at issue occurred between 2001 and 2003.  The OLR's investigation lasted for 30 months before the matter was referred to the preliminary review committee.  A complaint was not filed until 2007.

In view of all of these factors, we conclude that it would not be fair under the circumstances of this case to hold Attorney...responsible for the full amount of costs.  We conclude that extraordinary circumstances are present and that Attorney...should be required to pay $12,000 in costs.

It seems appropriate to me that costs should only be imposed where misconduct is found. (Mike Frisch)

Decade Of Criminal Conduct Draws Disbarment

From the California Bar Journal:

LOEL HARRIS SEITEL [#192999], 42, of New York was disbarred Jan. 9, 2009, and was ordered to comply with rule 9.20 of the California Rules of Court.

Seitel was sentenced to five years in prison in 2007, following a conviction for conspiracy to obstruct justice. He and several other people agreed to provide false and misleading information to the government concerning the nature of a relationship between him, his law partner, Marc F. Desiderio, and an individual who ran a drug smuggling operation.

While practicing law in New Jersey in 1993, Seitel was introduced to Jeffrey Tobin, who said he was a loanshark. In fact, according to a decision by State Bar Court Judge Richard Honn, Tobin ran an organization that purchased thousands of pounds of Mexican marijuana in California or Arizona and then moved the drugs to the New Jersey area for distribution along the eastern seaboard. Tobin asked Seitel and Desiderio to help him procure stash houses to store drugs and money.

Over a 10-year period, Honn said, Seitel and Desiderio rented three houses for Tobin’s use and in 2001, they purchased real estate for Tobin in Florida. They were paid cash for the leased residences and $500,000 in cash as collateral for the real estate. Although they were told the cash was from Tobin’s loanshark business, in fact it was from marijuana distribution.

When they became aware of an FBI investigation, Honn wrote, Seitel, Desiderio, Tobin and others agreed to provide false information to investigators about the nature of their relationship.

Seitel also represented a defendant before the grand jury, but when the government tried to have him disqualified because of his relationship with Tobin, he falsely told the court there was no conflict of interest because the Miami property transaction was legitimate.

In 2006, Seitel was charged with conspiracy to launder money, concealing money laundering, conspiracy to obstruct justice and obstruction of justice. He pleaded guilty to conspiring to make false statements to the government.

Saying Seitel’s disbarment “is amply warranted,” Honn agreed with bar prosecutors’ arguments that he engaged in a continuous course of criminal conduct for 10 years and that his conduct involved moral turpitude.

(Mike Frisch)

Personnel, Not Policy

The California Bar Journal has the following report:

The State Bar Board of Governors declined last month to reappoint its chief trial counsel, Scott Drexel, but reconfirmed its support of the strong public protection measures that Drexel enforced.

“This was a personnel, not a policy decision,” said bar president-elect Howard Miller. Added Richard Frankel of San Ramon, chair of the board’s discipline committee: “Nobody should read into this that the board is kowtowing to any particular group.” Both Miller and Frankel stressed that the board approved of Drexel’s “aggressive prosecutorial standards” and said they expect the prosecutor’s office to maintain its strong public protection policies.

Deputy Chief Trial Counsel Russell Weiner will serve as interim chief trial counsel until a successor to Drexel is named. The board expects to hire a legal search firm to field candidates for the four-year term of chief trial counsel. The board has asked Weiner to give a report at its meeting this month in Los Angeles outlining policies the discipline unit intends to follow as well as any changes it might wish to make.

Citing confidentiality in personnel decisions, board members declined to say why Drexel was not reappointed. In a letter to the chairs of the Senate and Assembly judiciary committees and Senate President Pro Tem Darrell Steinberg, Frankel wrote, “the board is not looking for a change in policy direction and has made clear that it expects the vigorous public protection efforts pursued during Mr. Drexel’s term to continue unchanged … The board expects the chief trial counsel to hold all attorneys in this state fully accountable for their actions regardless of their employment status.”

Drexel proposed a series of measures that toughened the bar’s disciplinary rules during his tenure as chief trial counsel. Although the board adopted those measures, they drew criticism from several quarters. Defense lawyers who represent attorneys charged with misconduct felt Drexel was overzealous and sought punishment harsher than deserved. Several recent high-profile prosecutions of deputy district attorneys from throughout the state also caused unhappiness among county prosecutors, who tried unsuccessfully last year to push legislation to reduce the bar’s disciplinary power.

“In no way was our decision reflective of any political issues whatsoever, whether respondents’ bar, district attorneys or any pending matter,” Frankel said.

Drexel, 60, was appointed chief trial counsel in 2005 by the board of governors and confirmed by the California Senate. He came to the job after 16 years as chief court counsel and administrative officer for the State Bar Court. As chief trial counsel, he oversaw more than 200 employees and a $40 million budget in the bar’s disciplinary enforcement office, which includes the investigation and prosecution of attorneys for professional misconduct.

Drexel said he was disappointed by the board’s decision. “I felt I had done my best both to protect the public and to serve the profession and to implement what I understood to be the expectations of the Supreme Court. I’m proud of what my office accomplished during my term. I would not change anything I did.”

(Mike Frisch)

Power Of Attorney

The Illinois Administrator has filed disciplinary charges against an attorney alleging that he had notarized the signature of a client on a document granting power of attorney to her spouse that had not been signed in the attorney's presence. It is further alleged that the spouse used the POA to secure mortgages against jointly owned property and that the wife learned of the mortgages for the first time during marriage dissolution proceedings. (Mike Frisch)

Asserting Personal Knowledge

The web page of the Massachusetts Board of Bar Overseers reports on a public reprimand of a prosecutor:

On November 13, 2003, a jury trial was commenced in Norfolk Superior Court in a first-degree murder case against two co-defendants. The respondent was the assistant district attorney representing the Commonwealth.

The Commonwealth alleged that the two defendants shot and killed one man and severely injured another in retaliation for the killing of two members of the defendants’ gang. Two former gang members agreed to testify for the Commonwealth in exchange the Commonwealth’s agreement to recommend a reduced sentence on various charges, an agreement to not bring additional charges, and a nolle prosequi entered on murder charges. During the trial, their credibility became a key issue, and the defense vigorously attacked their veracity during closing arguments.

During the respondent’s closing argument, he made statements that improperly vouched for the credibility of these two witnesses. In one instance, the respondent told the jury that he did not offer one of the witnesses any deal until after he personally verified the witness’s account by following the route to the crime scene that the witness had described. The respondent improperly vouched for the second witness by telling the jury that the witness had turned his life around after serving time in a federal prison. The respondent told the jury, “And I spoke with [the witness], and I looked at him, and I looked at what he had become.”

The respondent also improperly implied to the jury that they should avenge the victims. At the end of his closing argument, the respondent told the jurors, “It is your turn to put in work”. This phrase, as explained during the trial, was used by gang members to connote a form of revenge.

The murder conviction of one co-defendant was appealed and overturned by the Supreme Judicial Court in Commonwealth v. Williams, 450 Mass 894 (2008). The court ordered a new trial due to the respondent’s improper closing argument.

By asserting his personal knowledge of the facts in issue and vouching for the credibility of witnesses, the respondent violated Mass. R. Prof. C. 3.4(e), 3.8(h) and (i) and 8.4(d). For urging the jury to put in “work,” implying to avenge the crimes, the respondent violated Mass. R. Prof. C. 8.4(d).

The matter came before the Board of Bar Overseers on the parties’ stipulation of facts and rule violations and an agreed recommendation for discipline by public reprimand. On May 11, 2009, the Board of Bar Overseers voted to accept the parties’ stipulation and to impose a public reprimand.

The case is Matter of Nelson, Public Reprimand No. 2009-13. (Mike Frisch) 

No Disability Suspension

The New York Appellate Division for the First Judicial Department declined the implement the Departmental Disciplinary Committee's proposal to convert a suspension for failure to cooperate with a disciplinary investigation into a disability suspension. Rather, the court continued the indefinite suspension until the lawyer is able to participate in the proceedings. The court's reasoning:

In support of its motion, the Committee avers that it had been advised by respondent's counsel that respondent, an 80-year old practitioner, has continued to deteriorate both physically and mentally and thus would not be capable of participating in the disciplinary proceeding. The Committee received a copy of a June 11, 2008 neuropsychologist's evaluation of respondent, as well as a letter from his treating physician. Collectively, these documents demonstrate that respondent suffers from cerebral vascular disease, and that his level of mental function has declined since entry of the order of suspension, as reflected in memory loss, cognitive impairment and significant depression, thus making it impossible for him to defend himself in the pending proceedings.

In issuing the prior order of suspension, we noted that " The Committee has presented clear, uncontested evidence of respondent's professional misconduct which immediately threatens the public interest. We further noted that "his failure to challenge the allegations that he engaged in professional misconduct by neglecting legal matters and failure to refund legal fees, except in one instance, constitutes uncontested evidence of professional misconduct. Additionally, his willful failure or refusal to pay money owed to a client, which debt is demonstrated by a judgment constitutes grounds for suspension.

While we are not unmindful of respondent's age and current physical and mental condition, the Committee has not submitted reasons nor precedent for its motion to vacate the prior order of suspension in toto.

This matter is factually indistinguishable from Matter of Fusco (18 AD3d 81 [2005]). There, as here, the respondent was initially suspended from practice on the basis of uncontested evidence of professional misconduct, as well as failure to cooperate with the Committee's investigation. Subsequent to that order, the respondent submitted evidence of physical and mental incapacity and the Committee sought a further order suspending respondent on those grounds.

We granted the motion and vacated that portion of the prior order which dealt with respondent's lack of cooperation with the Committee's investigation, based upon the medical evidence submitted to the Committee.

There is no reason to depart from that precedent in this case. The evidence of respondent's professional misconduct is uncontested and, while the evidence before us explains his inability to defend himself at these proceedings, it does not explain nor controvert the findings of professional misconduct alleged herein. There is no basis to disturb the suspension based upon professional misconduct on the record before us.

I find this result rather harsh as the medical information indicates that this does not appear to be the type of disability that can be remedied. The public is as protected by a suspension based on disability as by an indefinite suspension. (Mike Frisch)

Bad Ad

From the web page of the Virginia State Bar:

On June 8, 2009, a Virginia State Bar Fifth District, Section I, Subcommittee imposed a public reprimand with terms on [an attorney] for violating professional rules that govern responsibilities regarding nonlawyer assistants, professional independence of a lawyer, unauthorized practice of law, communication and advertising about a lawyer's services, and firm names and letterheads. The misconduct involved the management of [his] law office and his advertisements, which used the name and likeness of a disbarred attorney. This was an agreed disposition of misconduct charges.

(Mike Frisch)

Grease Is The Word

An Arizona hearing officer rejected a number of ethics charges filed against an attorney by a former client and recommended an informal reprimand for failing to provide the client with a written retainer agreement. The rejected charges involved the following: that the attorney "went to a party and took multiple drags from [a] marijuana joint," that he had told the client he had once paid for a blow job, and that he had thrown a malfunctioning hand-held tape recorder in a pique or anger during a meeting with the client.

The hearing officer:

The squeaky wheel is not always entitled to be greased. In this case Complainant is the loudly squeaky wheel that caused the Arizona State Bar to file an ill-advised complaint, although to its credit the Bar first winnowed out the more flagrant of Complainant's accusations. Nonetheless, Complainant seems likely to emerge with what he was most after, escape from paying a legitimate substantial bill for legal services.

The hearing officer concluded that there was no evidence that the lawyer's performance was in any way impaired by the charged incidents and rejected the Bar's contention "that a lawyer's character flaws and weaknesses, independant of any effect on his actual practice of law, can be ethical violations simply because he or she is a lawyer." (Mike Frisch)

"Stun Belt" Reversal

The New York Court of Appeals has reversed a criminal conviction of a defendant charged with the murder by strangulation of a 14 year old victim. The trial court had ordered the defendant to wear a "stun belt" restraint during the trial. The court here reversed the affirmance of the conviction by the Appellate Division, concluding that forcing a defendant to wear the belt absent any showing that he was a danger at trial that would justify the use of the belt.

A dissent would hold that the presumption of innocence was not implicated: "...defendant failed to show that the stun belt was visible to the jury or otherwise compromised the fundamental fairness of the trial; he never objected that the stun belt impaired his ability to communicate with his attorney or meaningfully participate in his defense. Since I therefore do not believe that the defendant has shown any actual prejudice, I would affirm his conviction." (Mike Frisch)

CLE-Related Judicial Misconduct

A South Carolina magistrate judge was sanctioned for misconduct relaing to fulfilling his CLE obligations. The South Carolina Supreme Court described the misconduct as follows:

 In this judicial disciplinary case, respondent Magistrate Judge...admits altering a court order and a letter from the Commission on Continuing Legal Education and Specialization (hereinafter “CLE Commission”).  The record supports the recommendation of the Commission on Judicial Conduct (hereinafter “the panel”), and we retroactively suspend respondent.

Respondent failed to comply with Rule 510, SCACR and report his CLE hours for 2006-07 timely.  Therefore, this Court suspended respondent.  Subsequently, respondent complied with Rule 510.  Thus, the CLE Commission issued respondent a letter finding him in compliance and instructing him to contact this Court to be reinstated.  This Court then reinstated respondent by court order, and the court order specifically stated the reinstatement was not retroactive.

Respondent then retook the bench.  While conducting bond court, respondent was asked to submit evidence of his reinstatement to the county administrator.  Respondent faxed copies of the CLE Commission’s letter finding him in compliance and this Court’s order reinstating respondent.  The version of the letter and this Court’s order sent by respondent were altered.  Specifically, respondent removed the references that his reinstatement was not retroactive.  Respondent explains the alterations of these documents as an innocent attempt to obscure notes he made on the documents as he did not have time to obtain the originals.  Respondent admits he failed to notify the county administrator of the papers’ alterations.

The magistrate has been on interim suspension since October 12, 2007 and the court held that the served suspension was sufficient under the circumstances as a sanction. (Mike Frisch)

Substantial Threat

The North Dakota Supreme Court imposed a suspension pending the disposition of disciplinary proceedings in a case where the lawyer has been charged with, but not convicted of, criminal charges. The court describes the charges:

The Application [for suspension] states that a criminal complaint has been filed in District Court, County of Ward, Northwest Judicial District charging [the attorney] with Criminal Conspiracy - Unlawful Possession of a Controlled Substance (Cocaine) in violation of §§ 12.1-06-04 and 19-03.1-23. The offense is a Class C felony. The Application also states that he has been charged with two separate offenses of DUI in a matter of three days. The substance of the criminal complaint for Criminal Conspiracy is that [the attorney] encouraged and solicited a client, whom he was representing in a trial on charges of unlawful delivery of a controlled substance, to secure cocaine for him.

The suspension was imposed pursuant to a provision that empowers the court to act in matters of substantial threat of irreparable harm to the public. (Mike Frisch)

No Sanction For Judge

The Louisiana Supreme Court agreed with a finding of its Judiciary Commission that a judge had violated the Code of Judicial Conduct but rejected  the proposed public censure sanction because the "wrongdoing does not rise to the level of misconduct warranting the imposition of a disciplinary sanction." The judge sat in a high-volume drug court and had regularly ordered that defendants pay a fine for the benefit of the "I Care" drug program while serving on the program's advisory council. The fines totalled $83,550.00

The court states:

In making this decision, we rely on [his] unblemished record on the judicial bench. Moreover, any potential appearence of impropriety subject of these proceedings stems solely from his admirable personal and judicial efforts to improve his community through substance abuse prevention and education. While we in no way condone his actions and strongly caution him to refrain from similar judicial misjudgment in the future, we do not find his actions to rise to the level of sanctionable misconduct.

(Mike Frisch)

A Comment on Law School 4.0

Posted by Jeff Lipshaw

An op-ed by Paul Lippe (no relation) at the Am Law Daily on what law schools ought to do to cure THE PROBLEM has gotten a fair amount of buzz in the blogosphere, including from our own Bill Henderson. 

Here's my quick reaction:

1.  The descriptions of Phases I to III (reading law; Langellian case method; "law and ...") seem accurate to me.

2. This statement strikes me as a relatively fair generalization:

Even in 1981, when I went to law school, the faculty generally held law firms in low regard, and clients were presumed unethical without the constant guidance of lawyers (when I spoke to a law school dean the other day, she immediately equated client with "Enron"). It's nuts for law school to be primarily about understanding appellate decision making and not at all about understanding clients.

This is particularly the case when discussing the politically-infused area of corporate governance. I still marvel at individuals in various institutions (academia, Congress, state governors, corporations) who have no compunction about calling the motives of other individuals in other institutions into question (i.e. conflicted, greedy, short-sighted, etc.) without stepping back and looking at their own.  For example, I'm still not convinced that faculty governance has any moral superiority over corporate governance, and clearly Governor Sanford's recent escapade tarnishes the purity of the bully political pulpit. I'm willing to accept a middle ground, which is that none of us embodies an Archimedean moral fulcrum.  Or to quote Robert Burns:  "O wad som' pow'r the giftie gie us, to see oursels as ithers see us."

3.  Mr. Lippe says:

-A much more empirical approach to practice, forcing much deeper inquiry, rather than just trotting out hypotheticals and issue-spotting--e.g., if choosing AAA arbitration is the right dispute resolution clause, do we know that a higher percentage of deals with no arbitration clause ended in a contentious dispute?

This statement strikes me as not fully thought out, but certainly an area in which inquiring minds ought to be engaged (I try to be, as evidenced in this recent piece about legal "cures" to social problems).  First, I'm not sure we've fully probed the empirical foundations of statements of this sort enough to use them as the basis for advice. You have a rare form of cancer. Overall, the cure rate with the best treatment is 20%. We can at least make some fairly reliable predictions as a result of natural science, to get at real cause-and-effect. As a general matter, that's far more challenging when we draw social science conclusions.  Second, the analogy to medicine highlights the issue. Is the information a helpful piece of data in deciding whether to take the treatment?  My son, Matthew, starts med school in six weeks, with a beginning unit that touches on evidence-based medicine.  My guess is that data is helpful, but not ultimately dispositive, in making forward-looking judgments about care.

Drinks At Shanghi Red's Leads To Judge's Resignation

WGRZ.com reports on a judicial misconduct matter:

Erie County District Attorney Frank Sedita says State Supreme Court Judge Joseph Makowski and local attorney Anne Adams conspired to try and make a DWI case against Adams go away.

Last September, Makowski and Adams met for drinks at Shanghai Red's on the Buffalo waterfront.

Afterwards, Adams was driving home through Hamburg, with Makowski following behind her, when Adams was spotted driving erratically and was pulled over by police.

A breathalyzer test showed her blood alcohol level was more than twice the legal limit.

Despite that, Makowski in attempt to cover up the case, submitted a sworn statement to a judge saying that Adams' driving had been fine. He also stated that she had had only two drinks.

The following day, Adams, in her attempt to have the case against her dismissed, had her blood drawn.

By then, it showed just a trace amount of alcohol in her system, but Adams then claimed in a statement to the court that the blood had been drawn the night of her arrest.

Late Friday afternoon, Adams pled guilty to the DWI charge, as well another two charges related to her tampering with evidence (the blood test).

"Her conduct was disgraceful and she is now being held accountable for that conduct," said Sedita.

Makowski recanted his statement and resigned from the bench.

He will not face any criminal charges.

Scott Brown: "Knowing that Judge Makowski lied in his sworn statement, why not prosecute him?"

Sedita: "Under the law, if Judge Makowski chose to come before the grand jury and recant, there would be no criminal charges against him, so we fashioned a result where he recanted before the grand jury met, he must resign from the bench, and that means his reputation is disgraced."

Adams is scheduled to be sentenced in April, that sentence can range from probation, to two years in prison.

There's a chance that both Adams and Makowski could lose their licenses to practice law.

The bottom line says Sedita, "They tried to fix a case Scott, and they got caught."

This situation isn't sitting well with the local Mothers Against Drunk Driving organization.

Elizabeth Obad, The president of the Erie County M.A.D.D. chapter, calls this situation a disgrace and wants to see a stiff penalty for Adams when she is sentenced in April.

"We look up to our attorneys and our judges and expect them to enforce the law and I think it's horrible when someone who could have possibly been sitting on the bench and someone who was on the bench to do something like this," said Obad. "I think it's absolutely horrible and I would like to see some still penalties in this matter."

The proceedings before the New York Commission on Judicial Conduct leading to the judge's resignation from the bench are linked here and here. WIBV.com reports that the attorney was a former prosecutor and was sentenced to imprisonment for the driving incident. (Mike Frisch)

The End of an Era: the Bi-Modal Distribution for the Class of 2008

[posted by Bill Henderson, crossposted to ELS Blog]

NALP has just posted its entry-level starting salary for class of 2008--i.e., the lawyers who started their jobs just as Bear Sterns and Lehman Bros unraveled and the credit markets completely froze up. 
 
Of the 22,305 law school graduates, a remarkable 23% (5,130 members of the class of 2008) reported an entry-level salary of $160,000.  In contrast, 42% of entry level lawyers reported salaries in the $40,000 to $65,000 range.  Once again, the central tendencies are a poor guide to the distribution as a whole: whereas the mean salary is a $92,000, the median salary was $72,000.   Further, the two modes ($50,000 and $160,000) are separated by $110,000.

Amidst all the layoffs, deferrals, salary cuts, and apprenticeship programs announced in 2009, it is safe to venture that the bi-modal era has peaked.  Every law school class for the foreseeable future will graduate to a much different economic landscape.  Although many students will regret the opportunity to earn such a big payday upon graduation, it brought with it intense billing pressure, client resentment, heavy leverage, and very little substantive training for new hires.  I would argue that profession as a whole (including current and future graduating classes) is better off with a lower entry level salary. 

Admittedly that is a long-term view for the profession as a whole.  In the short term, current students and recent graduates are in a world of hurt.  Specifically, law school debt loads continue to climb.  Thus, law schools are (rightfully) going to be under increased pressure to deliver value to our students.  I don't think most law professors and law school administrators fully appreciate the difficult times ahead.  For a provocative take on the current state of legal education, see Paul Lippe, Welcome to the Future: Time for Law School 4.0.

For some perspective on how this crazy market evolved, see:

• Henderson, Distribution of Starting Salaries for 2006: Best Graphic of the Year (Sept. 4, 2007)
• Henderson, How the Cravath System Created the Bi-Modal Distribution (July 18, 2008)
• Henderson, Class of 2007:  A More Extreme Bi-Modal Distribution (July 30, 2008)
• NALP, A Picture is Worth 1,000 Words (Sept. 2007).

After the jump are the distributions from 1991, 2006, and 2007.  The primary takeaway is that the bi-modal did not exist in the early 1990s.  It first emerged in 2000 (with the dot.com salary wars) and became progressively more extreme as the decade unfolded.  On Wednesday, I have an article coming out in the NALP Bulletin, entitled "The Bursting of the Pedigree Bubble," which will provide some additional analysis.

Continue reading "The End of an Era: the Bi-Modal Distribution for the Class of 2008"

No Reciprocal Discipline

Adhering to the reasoning of a recent opinion that we posted, the Georgia Supreme Court dismissed a reciprocal discipline matter involving the suspension of an attorney in the United States District Court for the Southern District of Georgia. The court majority holds that "the State Bar is not authorized to utilize the reciprocal discipline process when the disciplinary action at issue was taken by a federal district court."  The court dismissed a second matter on the same grounds. (Mike Frisch)

Trucking To Suspension

An attorney who engaged in multiple instances of driving under the influence exacerbated by flight from the scene and a false claim that his car was being driven by a stripper was suspended for three years by the Louisiana Supreme Court. He had endangered his young daughter by holding her in his arms as he vandalized the truck of his estranged wife's boyfriend with a shovel, breaking the truck's windows and doing body damage as well (which he also had falsely denied).

He also "...most significantly...attempted to disrupt the ODC's investigation by unjustifiably invoking constitutional protections and offering false testimony" in the bar proceedings. (Mike Frisch)

Louisiana Disbarment

The Louisiana Supreme Court Court disbarred and revoked the license of an attorney for misconduct in several matters. In one case the attorney made a false representation to a court in the course of representing her sister in a domestic relations matter. In another, she made "obscene hand gestures" to opposing counsel and said "f*** you" to counsel. In a third matter, she continued to file pleadings after discharged by her client, accusing the client of perjury and opposing counsel of child molestation, perjury , and destruction of evidence. Another count involved the failure to return artwork that was held by the attorney in trust pursuant to a court order.

Disbarment was deemed appropriate because "a common thread running through [the] misconduct is that it is knowing and intentional [and] has caused significant actual harm." (Mike Frisch)

No Right To Rummage

The New Jersey Appellate Court has issued a decision concerning an employee's rights with respect to emails sent to her attorney on a computer provided by the employer:

...we address whether workplace regulations converted an employee's emails with her attorney-- sent through the employee's personal, password-protected, web based email account, but via her employer's computer--into the employer's property. Finding that the policies undergirding the attorney-client privilege substantially outweigh the employer's interest....we reject the employer's claimed right to rummage through and retain the employee's emails to her attorney.

The employee had been the employer's executive director of nursing and had filed claims of discrimination against her former employer. Counsel for the employer was able to obtain the emails by extracting and creating a forensic image of the computer hard drive. The emails were discovered while reviewing the employee's Internet browsing history. Counsel then used some of the emails in its papers and fought disclosure of the material to plaintiff.

The court discusses the ethical obligations imposed by DR 4.4(b), which obligates counsel to cease reading known privileged documents, notify and return the documents to the adverse attorney. Rather, here:

[the law firm] appointed itself the sole judge of the issue and made use of attorney-client emails without giving plaintiff an opportunity to advocate a contrary position.

The court remanded the matter for a determination whether the employer's attorneys should be disqualified as a result of reviewing the emails and directed the employer to provide all recovered emails to the employee. There is also an extended discussion of the impact of company computer policies on the issues presented.  (Mike Frisch)

Advertising Issue, Other Misconduct, Draws Suspension

The Wisconsin Supreme Court ordered a six-month suspension of an attorney for ethical violations in a number of matters. One case involved the attorney's submission of an expert's bill for payment by the State. The State paid the bill but the attorney used the proceeds for her own purposes.

Another involved the following findings:

R.B. arrested Attorney...on September 7, 2004.  Attorney...was initially charged with disorderly conduct and resisting arrest.  The police report indicated Attorney...recorded a preliminary breath test with a blood alcohol concentration of .117%.  After her arrest, Attorney ...paid for the following advertisement in a local newspaper:

In Pursuit of Justice:

Stop Police Misconduct

Former Officer R.B. of the

MTPD has pepper-

sprayed minor females

until rendered helpless and

then committed a sexual

assault against them.  To

pursue a civil rights

action, send statement to [address]

Attorney...did not list her name in the advertisement but used her post office box and telephone number.

The attorney has been previously reprimanded on two occasions and was suspended for five months last August for unrelated misconduct. The six-month suspension will remain in effect until the attorney pays costs and restitution. (Mike Frisch)

Federal Law Preempts Unauthorized Practice Rules

The Ponca Tribe of Nebraska ("Tribe") filed a motion to intervene in an appeal of a child custody matter  involving two children who are members of the Tribe. The lower court had denied the motion because it was not signed by a member of the Nebraska Bar. The Nebraska Supreme Court reversed, holding that the Tribe's right to intervene in the proceeding was granted by federal law (the Indian Child Welfare Act or "ICWA"). The lower court had refused to allow the Tribe's representative to participate notwithstanding the lack of objection from any party to the proceedings.

The court here holds that federal provisions preempt Nebraska's rules governing the unauthorized practice of law. The court notes that the non-lawyer representative designated by the Tribe was experienced in matters governed by the ICWA.

The court should be commended for not allowing unauthorized practice rules to silence the voice of a qualified non-lawyer representative. (Mike Frisch)

Gross Misjudgment

An attorney was suspended for five years by the New York Appellate Division for the Second Judicial Department for a number of ethical violations. He had, among other things, jointly represented a husband and wife in drafting a separation agreement and thereafter acted as the husband's lawyer in the ensuing divorce. There were also neglect and escrow violations. The court sets out its sanction analysis:

In determining an appropriate measure of discipline to impose, the Grievance Committee points out that the respondent's disciplinary history consists of three Letters of Caution, one dated April 22, 2004, and two dated March 15, 2004. Those matters involved neglect, failure to forward settlement funds to the complainant, and failure to maintain an escrow account in good order and to make the bank accountable for its errors and inconsistencies. The respondent failed to take the opportunity to request a hearing with respect to those letters and should not now be permitted to recast them in a way he would like them to be viewed.

By way of mitigation, the respondent submits that he was merely trying to help out Mr. and Mrs. Freedman, who had little or no liquid assets and who sought his help in terminating their marriage and resolving related issues. He asks the Court to view the Comis matter as a reflection of the inexperience of himself and his staff in maintaining records and tracking the status of a case. He asks the Court to also consider the nature of a small, one-attorney practice and his cooperation with the Grievance Committee.

While the respondent may not have converted Mr. and Mrs. Freedman's funds for his own benefit, he did convert their funds held in his escrow account by turning them over to Mr. Adler, another client. While law office failure may have played a role in the initial handling of the Comis matter, the respondent should not be permitted to rely on that excuse for providing a false document to the Grievance Committee.

The respondent's misconduct, which includes neglect of two legal matters, failing to safeguard funds entrusted to him in escrow, failing to properly identify his escrow account, and simultaneously representing parties with divergent interests, evinces gross misjudgment. Accordingly, he is suspended from the practice of law for a period of five years.

(MIke Frisch)

Rehearing Denied

The District of Columbia Court of Appeals entered an order yesterday that denied a motion for rehearing or rehearing en banc in a case where the court had not imposed an interim suspension for a felony conviction. Bar Counsel had filed the motion after a three-judge division of the court had declined to order suspension and instead referred the matter to Bar Counsel for an investigation of the underlying facts and circumstances. Note that the court adds a footnote to its earlier decision that clarifies the procedure in circumstances where the attorney has filed an opposition to the proposed interim suspension order submitted by Bar Counsel. (Mike Frisch)

"An Isolated Series Of Bad Choices"

An Arizona attorney who had been convicted of extreme DUI, leaving an accident scene and endangerment as a result of an accident with a motorcyclist was the subject of a bar discipline proceeding. A hearing officer's proposed dismissal of the charges was not accepted and remanded by the Disciplinary Commission based on the hearing officer's failure to accord conclusive weight to the underlying conviction. A new hearing officer has found misconduct, although the crimes were an "isolated series of extremely bad choices" and recommended a public censure and one year of probation. (Mike Frisch)