Monday, November 20, 2006

Angry in Nebraska

by Mike Frisch

The Nebraska disiplinary system apparently takes a dim view of ad hominem attacks on its Counsel for Discipline. In State ex rel. Counsel for Discipline v. Beach, the Supreme Court disbarred an attorney for what appears to be a severe case of overinvolvement with his client. Retained to assist in a probation revocation, the attorney wrote a series of unauthorized letters that disclosed confidential information, including a profane attack directed to the client's husband, whom he urged to commit suicide. He drafted a divorce petition without a request from the client. Although she was on probation and ordered not to drink, he took her to bars and bought her alcohol. When charges were brought, he attacked an attorney who assisted the now-former client and opined that "The practice of law was more enjoyable before feminazi [word omitted] like you came on the scene" and referring to disciplinary counsel as a "hitman." In imposing disbarment, the court held that "Hostile, threatening, and disruptive conduct reflects on an attorney's honesty, trustworthiness, diligence, and reliability and adversely reflects on one's fitness to practice law."

November 20, 2006 in Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Musical Theatre "Ethics Revue" Offers 3 CLE Credits in Denver 12/13 (Or: Your State's CLE Agenda Pales by Comparison)

Posted by Alan Childress

The bar announcement trumpets, "If you are only going to see one CLE musical this fall...."  This one is co-performed by the Colorado Bar Association's Ethics Committee--over dinner--and allows pre-registration here.  They admit:  "Your mental image of the 50-year-old CBA Ethics Committee is of sixty scholarly, Seventeenth Street solicitors whose average IQ is about 145. The last time one of them told a joke was in 1972. And it was dry. Dusty dry. The Ethics Committee's idea of a good time is reading disciplinary decisions from Delaware. They still sip sherry and wear three-piece silk suits."  Don't let that stop you from earning 3 hours of ethics CLE over chicken.  The event is Dec. 13 and a colorful PDF brochure has detailed information. 

Alternatively, the same bar site front page yesterday touted a new article in it bar journal entitled, "Colorado Revisits the Rule Against Perpetuities," thereby putting some poor trusts-and-estates author in the equivalent position of following animals or children on-stage.  Let's face it:  the rule against perpetuities is just not as sexy as it sounds, at least not since 1981's Body Heat.

Anyway, back to the CLE program: actual topics include conflicts of interest, confidentiality, witness prep, and deposing opposing counsel -- while actual songs, really, are entitled: 517854_pure_music_1_2

  •   >>  "It's the Most Ethical Time of the Year"
  •   >>  "The Twelve Days of Conflicts-Checking Diligence"
  •   >>  "Super Lawyer"
  •   >>  "Pro Bono Obligation Song"
  •   >>  "A Spooky Little Witness Like You"
...although we add that apparently New Jersey attorneys will get no CLE credit for the Super Lawyer segment and may even have to cover their ears while humming "Henery the Eighth" to block it out.

November 20, 2006 in CLE, Ethics | Permalink | Comments (0) | TrackBack (0)

Northwestern U. Law Review Colloquy on Admitting Foreign LL.M.s to the Bar

Posted by Alan Childress

The Northwestern University Law Review now publishes an on-line Colloquy as well, linked here, Silverca_5 and has just posted an interesting piece by Northwestern's Carole Silver {left} and Mayer Freed {below right}.  It is entitled, "Translating the U.S. LLM Experience: The Need for a Comprehensive Examination."  An abstract is below the fold.  As summarized by Colloquy editor Mark Spottswood:

The authors discuss the present status of legal education for foreign students Freedmaof U.S. law, focusing especially on the ways that the U.S. bar examination system may fail to meet the needs of both foreign LLM students and their future employers.  They then discuss an alternative: a comprehensive examination on United States law for foreign lawyers.

Continue reading

November 20, 2006 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (1)

World Bank

Speaking of penalty for early withdrawals...  Teaching at GW this year, I am next to the World Bank up here in chilly DC.  Let me tell you, that bank is not user-friendly.  Barricades where the parking should be.  No ATMs or tellers I could find.  Lots of security guards everywhere, sure, but none would tell me where the ATM or tellers were.  What gives?

I'm guessing no toaster to open a new account either.  Maybe that's why it seems to be picketed every other week.  No problem controlling unruly protesters, though.  Next to the bank is the Impossible Mission Force building with even more security.  [Alan Childress]

November 20, 2006 in Childress | Permalink | Comments (0) | TrackBack (0)

Penalty for Early Withdrawal

by Mike Frisch

Classic misappropriation in violation of Rule 1.15 involves the unauthorized use of funds entrusted to the lawyer for eventual payment to the client or a third party. But what if the funds are advanced fee payments that the lawyer holds in trust to pay herself when earned? Courts have treated such premature withdrawals as misappropriation but have tended to view the conduct as somewhat less blameworthy than the more classic form. An example may be found in a decision of the Michigan Attorney Discipline Board in Grievance Administrator v. Boffman.

The client had paid a $5000 retainer to the attorney that obligated the lawyer to perform 50 hours of legal services. Three months later, the client discharged the lawyer and sought a refund. After the lawyer repaid a portion of the fee, the dissatisfied client filed a lawsuit and a grievance against the lawyer.

The hearing panel concluded that the fee advance was a "general retainer" and thus exempt from Rule 1.15 duties. The Board held otherwise but noted that "a prior contrary decision of the Board and the fact that many respected and thoughtful practicioners have divergent views" on the proper handling of fee advances justified a prospective ruling. To the extent that fee agreement was unclear, the ambiguity must be construed against the party who drafted it. In the future, fee advances must be escrowed and held in trust until earned.

November 20, 2006 in Ethics | Permalink | Comments (0) | TrackBack (0)

Sunday, November 19, 2006

Winning, Burn-Out, and Other Random Thoughts in an Airport on Sunday Morning

Posted by Jeff Lipshaw

My philosophical musings several weeks ago on the joy of winning were tested severely last night as Bogdanski my beloved Wolverines fell to Ohio State 42-39.  I remember watching the Stanford moot court finals many years ago (in which, as I recall, Lewis & Clark Professor Jack Bogdanski, left, was a finalist) where one of the judges was the late A. Leon Higginbotham of the Third Circuit Court of Appeals.  Either in post-argument or pre-argument comments, the judge said "a well-prepared lawyer never loses; the client may not prevail, but the lawyer never loses."  Is it mere rationalization, am I getting more mature (unlikely if you have seen me teach!), or does the outcome just not matter as much to me as heart and valor, even in defeat, and respect for a great opponent?  Congratulations to the Buckeyes.  You earned it.

On a completely different matter, the New York Times Business section this morning has a profile on Philip Kent, currently the chairman and CEO of Turner Broadcasting.  What struck me was the peripatetic nature of his career, from ad sales in the media business, to producing and selling news inserts for TV stations, to being a Hollywood agent at CAA (of Michael Ovitz and Disney fame), to running a book publishing and video distribution business at Turner.  I don't think the track of the typical law professor's career encounters this, and perhaps it is just me, but I've concluded after all these years that spending an entire law career, as many do, in the same firm, doing the same kind of work, progressing in the level of oversight and client contact, is still not a natural act.  There was kind of an unwritten rule in the corporate world that three to five years in most jobs was about the time it took to learn the job, do it well, and then begin the slide toward boredom (or in the extreme case, burnout).  I don't know if there is empirical data, but it seems to me that career angst - boredom, combined with attractive incomes that make it difficult to change - is relatively more common among lawyers than perhaps other professions (though I wonder what keeps filling cavities as a dentist new and fresh year after year).  But it always seems like the ex-yuppies running a B&B in Maine were big firm lawyers.

November 19, 2006 in Billable Hours, Law Firms, Lipshaw, Straddling the Fence, The Practice | Permalink | Comments (0) | TrackBack (1)

Various State Bars Resisting "Culture of Waiver" of Attorney-Client Privilege

Posted by Alan Childress

Interesting article this morning on law.com called, "State Bars Push Back on Privilege Waivers," by National Law Journal's Sheri Qualters.  It is about various state task forces "convening to counter 'Thompson Memo' waivers" cajoled by DOJ directive, the states using different resistance strategies.  One new such state mulling ethics-rules ways to mute the DOJ policy is Michigan, and its task force chair (Samuel Damren of Detroit's Dykema Gossett) has a nice quote about pushing back the "culture of waiver" such government policies create to "erode" traditional privilege.  One method is to make government attorneys in the state subject to new ethics rules forbidding a demand of corporate waiver as proof of cooperation and innocence: "If the prosecutors and regulators aren't going to Damrenchange the rules, it's not just in their hands, it's in the hands of the bar."  Damren's task force is linked here.  [Damren is shown right and his P number is a relatively-prestigious and forgetfulness-resistant 25522 -- er, change your ATM code today, Damren.]  Several other states likewise are looking at  their ethics rules.

Many other states are imploring the DOJ to change its policy.  It may be listening some, according to a related post today by Ellen Podgor (Stetson) on White Collar Crime Prof Blog, called "Perhaps a Step in the Right Direction."  She links to a thorough Bloomberg News story by Robert Schmidt about what Podgor deems to be welcome but baby steps being considered at DOJ.  And she provides several useful links to background on the DOJ issue and debate. Yet it appears that the "the changes won't be dramatic," reports Schmidt--leaving it in the hands of the states to push back as described by Damren. 

More pressing, I'm off to fight the crowds at ToysRUs for a game system for my son.  What we do for our kids.  Maybe the DOJ should spend more time investigating the phenomenon of "intentional shortage retail frenzy" (ISRF) and less eroding privilege. Oh, my mother-in-law wants that masochistic Elmo too.

November 19, 2006 in Ethics, Privilege | Permalink | Comments (0) | TrackBack (0)