Monday, April 30, 2007
On April 12, the Mississippi Supreme Court upheld the conviction of Edgar Ray Killen for the 1964 murders of Michael Schwerner, James Chaney and Andrew Goodman. The court rejected a variery of contentions on appeal of the manslaughter conviction. The court found no error in the jury instructions and rejected the claim that the statute of limitations had run as there is no statute of limitations for manslaughter. The court rejected the claim that the defense had been prejudiced by the delay in bringing the matter to trial. In particular, the court found no basis to grant relief on Killen's contention (which the court accepted) that conviction would have been less likely if the case had been tried to an all-white jury in 1964. The court responded: "We shall do no more than add that we find this argument has no merit, and we are surprised it is made." (Mike Frisch)
And Yet My School's Spam Filter Is Thrown By CiaLI$ and Thinks Doggie Style Is About Innocuous Pet Grooming
Posted by Alan Childress
This from New Zealand, actually News.com.au:
A WOMAN'S email to the help desk of Telecom New Zealand was rejected by a computer system because her name was Gay and "inappropriate for business-like communication".
Gay Hamilton, from the northern South Island town of Nelson, said while she was actually gay, she was concerned that the country's biggest public company was spending its time and resources on trifling issues, the Herald on Sunday reported.
"If they do have to put content filters on, then maybe they should ensure that it only gets genuinely abusive words," she said.
I am shocked that someone of any name would normally expect a response from a telecom's Help Desk. Must be a NZ thing. Anyway, the story is called "Gay's too gay for phone giant."
Hat Tip to the media law blog Freedom to Differ by Peter Black, a law prof at Queensland, who linked the story in his post, "Well, this is just silly." Elsewhere he reports (from tomorrow, in fact) some interesting (and unsilly) internet and speech issues such as noting, "One of Egypt's most prominent political bloggers has decided to call it a day, citing harassment by security services as his main reason to quit." And this report from Sydney, echoing our own recent worrying about public presences and bar licensing applications:
A woman denied a teaching degree on the eve of graduation because of a MySpace photo has sued the university. Millersville University instead granted Stacy Snyder a degree in English last year after learning of the web-published picture of her, which bore the caption Drunken Pirate.
It's day 1 of our move. Cats are locked in the bathroom downstairs, w/a picture of cats on the door and a "please don't open the door--cats inside" sign on the door. I tell the movers not to open the door, the cats are our life, yadda, yadda, yadda. I run an errand and, when I come back, I find that "someone" has let the cats out of the bathroom. The garage door was open, and I spent an hour worrying that the cats had not just escaped inside the house but had actually made a break for it outside (and they're INDOOR cats). An hour and a half after I came back home, we found Grace and Shadow. At the risk of embarrassing myself worldwide, I have photographic evidence of what happened when I put Grace back into the downstairs bathroom.
Beat that, Jeff!
Posted by a very sore Nancy Rapoport.
We are set to move in mid-June from Indianapolis to the Boston area, and it occurred to me, what with Larry Solum's list of 160+ new law professor hires, and the extensive list of lateral moves over at PrawfsBlawg and Concurring Opinions, that a schematic of all those moves would look like the orbital paths of a heavy atom.
I figured, come September, there should be some truly memorable stories of moves gone terribly, terribly wrong. It seemed to me that we here at LPB could offer some consolation in advance. So we'd like to announce the "Most Likely to Induce Heartfelt Sympathy" Moving Story Contest. Even as your furniture is being broken, or your car scratched, or your books lost, or your apartment not ready, or your basement flooded, or your buyer in the old house backing out of the closing two days before you have to close on the new house, you'll have a chance to tell the story and, if our judges like it (they are currently residing in an undisclosed location), you'll have a chance to win the pictured t-shirt (or a reasonable facsimile thereof) right out of Alan Childress's top drawer.
Here are the contest rules:
1. You must be eighteen years or older to enter, and must be moving your household more than fifty miles in connection with a full-time entry level or lateral law professor job. Tawdry and/or sickening tales of area code marriages and awful commutes are not welcome (that's what Delilah is for).
2. Stories may not exceed 250 words unless they are capable of peer review scrutiny in which case please don't send them to us.
3. We cannot guarantee that we will acknowledge receipt or even read them. Funny is good. Sending a link to a well produced You Tube works.
4. All decisions of the judges are completely, totally, and irrevocably final, unless we make a mistake.
5. Delivery of one Harrier jet to Alan Childress's house in River Ridge, Louisiana (please don't park it on the street) along with a word for word perfect recitation of the opinion in Leonard v. Pepsico, Inc. will make that entrant the presumptive winner.
6. If Alan doesn't want to give up that t-shirt, the sponsors have the discretion to substitute any other valueless khazzerei as the prize.
7. Offer void where prohibited and to anyone moving to assume a chair endowed by a resident of Kalispell, Montana.
8. The best stories will be published here, and submission constitutes permission to publish. Consider this when submitting stories about disputes with the dean about reimbursement.
9. Employees of Legal Profession Blog and their families are not eligible to participate.
10. Entries must be e-mailed, postmarked, or sealed with a kiss before 11:59 p.m. on September 30, 2007.
Ethics Stories This Morning: On Logos as Deceptive Ads, Judge+Prosecutor In Camera, and Suing The Pants Off Someone
Posted by Alan Childress
New today is Blawg Review's survey of recent blogposts of interest, hosted this week by Blawg IT and written by Iowa patent attorney Brett Trout. In addition to recognizing Jeff's ode to lawyers knitting as a "great summary" of the top ten reasons, Brett covers three LP-related posts.
First, he links this David Giacolone "f/k/a" post on the Florida Bar's rather inconsistent dealings with logos: lion good, panther bad -- that sort of thing. That was especially problematic for a firm named Panter, Panter, and Somebody (so the bar seems to have eventually relented there), leading David to refer to the "Florida Bar’s Dignity Police and Advertising Nannies." The logo-debate's most recent incarnation is going after a firm (our story here) for its pitbull icon and the phone number 1-800-PITBULL. That firm defends itself with this post.
Second, Brett reports on possible ethics charges up to disbarment for a prosecutor and a judge in Colorado, linking from Al Nye. The AP news account is "Ex-judge, prosecutor face discipline for admitting having sex in judge's chambers." Brett notes that "I have had that happen to me several times -- but it has always been in more of a metaphorical sense." We have previously noted the issue of prosecutor-on-prosecutor action in the stadium ladies' room during a Seattle Seahawks football game (you know you are getting old when you think: don't they realize those tickets cost a fortune?). We sincerely hoped Law & Order did not feature Fred Dalton Thompson in a story "ripped from the headlines" there. As for the new Colorado story, there is no truth to the rumor that Angie Harmon will return for a guest spot for yet another headline-ripped plot. Anyway, the prosecutor is fired and the judge's case is before the judicial review board.
Third, the Blawg Review links to this and this recent account of the D.C. lawyer/administrative law judge who is suing his dry cleaner for $67.3 million (not just a paltry $62.2 million), for a pair of damaged pants. Here is the take of the local newspaper from Ward 5 on that as well. Some pants. [UPDATE: WSJ Law Blog and its readers react here.]
Finally, and not via Blawg Review but via Yahoo!News (I still have trouble with an important newssource other than E! having an ! in its name), is this defense of Paul Wolfowitz at the World Bank, Wolfowitz: Ethics Panel Knew of Pay Deal. Really it is from the Associated Press.
Posted by Alan Childress
Bill Ong Hing (U.C. Davis), below left, has posted to SSRN Law & Soc'y: The Legal Profession his article, "Coolies, James Yen, and Rebellious Advocacy." His goal is "to remind contemporary rebellious advocates of collaborative possibilities" through the example of James Yen. Here is the first part of Bill's abstract, with the rest of it beneath the fold:
Those of us who engage in progressive legal work need to be constantly reminded that we do not know everything -- that we are not knights in shining armor swooping in to save subordinated communities. We should be collaborating: working with rather than simply on behalf of clients and allies from whom we have much to learn. Though lawyering for social change is arduous work, there is much to gain in these battles against subordination, not simply from the potential outcome but from the collaborative process itself: as our clients gain strength and confidence, we too are renewed. Thus invigorated by the talent, spirit, and innovation that our clients and allies bring to the table, we aspire to bring that same sense of renewal to those with whom we work.
As a legal services attorney, a law school clinical instructor, and a volunteer with the Immigrant Legal Resource Center (ILRC), I am constantly amazed by the talented clients and non-lawyer allies I have encountered. From my contact with such allies I have drawn the invaluable lesson that the fight against discrimination -- in essence, the fight against subordination -- is one that community lawyers wage most effectively with allies and clients. In their work, these allies demonstrate that the struggle requires skills, techniques, and approaches that, unfortunately, conventional law school classrooms neglect.
If we seek to become more effective collaborative lawyers, then we should keep our eyes open for individuals from whom we can learn. Long before I became a lawyer, I met such a person named Y.C. James Yen. Though perhaps little-known among contemporary community lawyers, Yen's work has merited accolades all over the world, as well as broadened and enriched my own perspective of progressive lawyering. [continued]
April 30, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)
Sunday, April 29, 2007
An assistant county attorney who had forged a judge's name to a court order in a juvenile matter was suspended by the Iowa Supreme Court for not less than nine months. The attorney had a prior record of similar misconduct as well as a previous sanction for a conflict of interest. The attorney had a history of depression but the court was not convinced that his mental state was sufficiently causally related to the misconduct to be treated as a substantial mitigating factor. (Mike Frisch)
On Law.com's Inside Opinions: Legal Blogs, Carolyn Elefant has a thoughtful and interesting post entitled, "Who's More Ethical: the Lawyer With the Client Who Lied or the Lawyer Who Withheld Evidence of the Lie?" She discusses a Florida med mal case involving a plaintiff who could actually walk (as caught on candid camera) and her own attorney's finding out about the defendant's Clients Gone Wild video much later, on a motion to dismiss for fraud -- after nearly two years of working on and investing in the case. The reader's comments after are worth reading too. She links to Mike Cernovich's post, "It's a Miracle!" Mike asks, "What would you have done?" His view, somewhat in contrast with Carolyn's: "I think [defense attorneys] made the right choice. By sitting on the evidence for a while, they prevented the plaintiffs from explaining it away."
The original Law.com account of the court's dismissal of plaintiff's claim adds: "Lawyers on both sides are facing ethical questions about their own conduct in the case, though both sides say no Florida Bar complaints have been filed."
The Kansas Supreme Court decided a disciplinary case last week that addresses an important and sometimes controversial aspect of professional regulation. The attorney had been a cocaine addict since 1981. He was able to control his drug use during a period of time when employed in a job that involved random drug testing. After leaving, he had periods of controlled and uncontrolled abuse of crack cocaine. For one year, he sat in his basement smoking crack. He also had been in treatment but had relapsed.
As one might imagine, he had a series of unhappy neglected clients. The bar prosecuted a case that found misconduct in a significant number of cases. The attorney has now been on a path of recovery since 2005.
What is the proper sanction? In light of the recovery, should the court order probation with conditions rather than suspension or disbarment?
Here, the court was not prepared to simply order probation in lieu of indefinite suspension with the prospect of reinstatement on a showing of continuing recovery and a solid plan for close supervision. The court considered the ABA Standards for disciplinary sanctions in reaching its result.
In its seminal case In re Kersey, 520 A.2d 312 (D.C. 1987), the D. C. Court of Appeals allowed immediate probation without suspension for an alcoholic attorney who had engaged in more serious misconduct including three instances of misappropriation. The attorney was farther along in his recovery than in the Kansas case and had a detailed probation supervision plan. The Board had recommended a one year suspension with probation to follow assuming continued recovery. The D.C.court has also declined to treat cocaine addiction as a mitigating factor in attorney discipline cases. (Mike Frisch)
1. password 6. monkey
2. 123456 7. myspace1
3. qwerty 8. password1
4. abc123 9. blink182
5. letmein 10. (your first name)
Says PC Magazine in May 8 issue, and threadwatch.org. [HatTip to Electronic Ephemera, which also suggests that "HintDropper.com takes the guesswork out of gift giving for you."] Quick, Jeff, change the LPB backdoor . . .to letusin.
Saturday, April 28, 2007
Friday, April 27, 2007
The Kansas Supreme Court suspended an attorney for three months. After a public censure, the attorney sent a lenghty letter to 281 people that characterized the sanction as a slap on the wrist and denounced the process by which discipline had been imposed. The court found that the content of the letter was prejudicial to the administration of justice in violation of Rule 8.4(d). A minority would have imposed a less severe sanction. (Mike Frisch)
One of my traditions in teaching professional responsibility is to show a film called "Legal Heroes" by Larry Dubin in the last class. It is the inspiring story of three lawyers of diverse backgrounds who made remarkable contributions to the cause of social justice. Watching the film last night called to mind my own legal hero, Father Robert Drinan. I encourage readers to take note of the flood of remembrances that came after we lost Father at the beginning of this semester. His impact on so many from all walks of life is an inspiration to all of us. He is greatly missed and dearly loved.
The other legal hero who has inspired me throughout my professional life is Professor Sam Dash. Sam was not just a legend in the law. He was a courageous champion of the less fortunate in society who battled injustice all over the world. He was also as dedicated and popular a teacher as I have ever known. His international stature did not make him in any way remote or inaccessible to his colleagues and students -- like Father Drinan, he was as loved as he was respected. (Mike Frisch)
The revelation that the Dean of Admissions at MIT falsified her academic credentials and was discovered 28 years after her hiring brings to mind our recent discussions about bar admission. It shows that a misrepresentation of credentials is a ticking time bomb to a professional career notwithstanding years of apparently high quality job performance.
There are a number of very interesting cases of lawyer impersonation. Perhaps the most famous D.C. case involved a "lawyer" whose real name was Daniel Jackson Oliver Wendell Holmes Morgan, an escaped convict who had an active practice under the name of L.A. Harris. He was outed after he was involved in a traffic accident with a real lawyer, who asked about his credentials in discovery, leading to him taking it on the lam. He was eventually arrested and convicted. The fascinating story is told in No Time For Dying, co-written by a client that Morgan had represented who was on death row when it was discovered that his trial lawyer was an impostor.
Then there was a case I prosecuted involving one Regis Toomey (I am not making these names up). He was admitted to the D.C. Bar but omitted mention of the fact that he had been barred and disbarred in Texas. The court revoked his license rather than disbar him, meaning that he could never seek reinstatement.
There was another fellow who slithered his way into the D.C. Bar when the D.C. Court of Appeals took over the jurisdiction of the bar from the District Court in 1972--he was discovered as a result of client complaints. (MIke Frisch)
Posted by Alan Childress
Lyman Johnson (W&L--Law), left, and Rob Ricca (atty, Fenwick & West) have posted to SSRN, "(Not) Advising Corporate Officers about Fiduciary Duties." It will be in 47 Wake Forest Law Review, 2007. Here is their abstract:
This Article explores the intersection of an important, unresolved corporate law issue and an overlooked professional responsibility issue persistently arising in the corporate milieu. The corporate law question currently unaddressed in Delaware law is whether the fiduciary duties of corporate officers, as agents, are the same as, or different from, the fiduciary duties of corporate directors. A related question is whether, in reviewing officer conduct, courts will apply the business judgment rule in the same broad (and protective) manner in which it is applied to assessing director behavior.
The professional responsibility issue concerns whether, and how well, lawyers are advising corporate officers about their fiduciary duties. In recent years, much attention has been given to the professional obligations of a corporate lawyer upon learning, ex post, of corporate wrongdoing, including director and officer breaches of fiduciary duty. Virtually no attention has been paid to whether, ex ante, lawyers are adequately helping to prevent such misconduct by fully and properly advising corporate officers as to the scope and thrust of their fiduciary duties. Fiduciary duties, as an element for shaping officer conduct to promote healthy corporate governance, are of little preventive value if not properly transmitted to officers, given that officers are unlikely on their own to understand those duties. As is the case with directors, lawyers are the obvious means by which such communications to officers would be expected to occur. How well are they fulfilling this vital role?
We obtained information on this subject in two ways. First, as a pilot project we sent a survey questionnaire to corporate lawyers serving primarily as outside legal counsel in major U.S. metropolitan areas. We intend to later survey in-house counsel by means of a separate questionnaire. Second, we examined the websites of fifteen major law firms to learn what they say about themselves on the topic of advising corporate officers as to fiduciary duties. Overall, the results from our initial survey and website research suggest that many lawyers do not provide full-bodied fiduciary duty advice to officers in their capacity as officers at all, much less advising them as to the possibility that their duties might be stricter than those of directors or cautioning that the business judgment rule may not apply to officer conduct in the same way it applies to directors.
The paper also offers several reasons why lawyers should advise corporate officers as to their fiduciary duties. Doing so serves to highlight the key governance role played by officers, thereby partially re-directing corporate law's customary and inappropriately exclusive focus on directors. The paper closes by describing a proposed procedure for assuring directors that legal counsel is regularly providing fiduciary duty advice to senior officers.
April 27, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)
One of the upsides of blogging on substantive issues is the immediate engagement between theory and events. One of the downsides is that the speed by which the blogger can engage means that the vetting in the more traditional venues does not occur. But, of course, one of the upsides, as institutionalized, say, in Wikipedia, is that the connection is transparent, and subject to readers' immediate scrutiny.
An insightful reader took issue with my characterization of speech act theory in connection with the Apple, Inc. backdating issues, and I agree it was imprecise. I've updated the post below. More on the relationship between speech act theory and deception, if you are interested, in Peter Meijes Tiersma, "The Language of Perjury: 'Literal Truth,' Ambiguity, and the False Statement Requirement," 63 S. Cal. L. Rev. 373 (1990).
MoneyLaw's currently talking about creating a market in law professors, akin to other types of markets. Take a look at the posts: Paul Caron (MoneyLaw2.0: The Law Prof Exchange), Jeff Harrison (Is There Hope for MoneyLaw?), and mine (A new market: law professors?).
Posted by Nancy Rapoport.
Thursday, April 26, 2007
Although Nancy Rapoport writes on the demise of the billable hour in the legal profession of The Future, there are still some pockets left of its occasional use. One webplace, The Billable Hour, sells traditional-style analog watches and clocks -- but divided by tenths of an hour rather than five-minute increments. They also sell law-related gifts and humorous greeting cards. The timepieces do look like lovely gifts for your Lawyer Loved Ones (that almost sounds oxymoronic), but really I don't think they are all that practical. Could become like giving Black's Law Dictionary to an aspiring lawyer: they may not use it much but it is traditional. Better than a tie or pen for Mother's Day or Father's Day.
More to the point, my tip for hiring a lawyer is to avoid any that really has trouble calculating tenths of an hour in their heads. Especially while being hopelessly distracted by the admittedly arbitrary and capricious norm that their regular clock draws a line every five minutes. [Alan Childress]
Travis Hodgkins has the letter here on a Hastings student blog, posting a letter from Dean Edley at Berkeley that was also sent to the Hastings community -- as well as a nice letter to Hastings from Boalt students. [Alan Childress]