Friday, May 4, 2007
The Louisiana Supreme Court recently held that a prosecutor must be removed from a case because he believed that the defendant had circulated salacious rumors against him and a member of his family. A court majority concluded that the defendant had shown, by a preponderance of evidence, that the prosecutor's personal feelings had influenced his handling of the case. The defendant was the police chief of Jena, Louisiana who was charged for failure to intervene in an assault by the mayor against a member of the town council. (Mike Frisch)
The Supreme Court of Texas held today that the work-product privilege protects prosecutors from testifying in a malicious prosecution suit. The release of the criminal file of the underlying case did not waive the privilege.
The case had its genesis in a nasty dispute between feuding neighbors who frequently called in the police "regarding such incivilities as barking dogs, obscenities yelled, cut cable lines, strewn grass clippings, trash left in a yard.." and other indignities. The malicious prosecution suit involved a complaint that had led to criminal charges which were dismissed when the "victims" refused to testify. The court majority found that the burden of proving causation in the civil litigation was not a "substantial need" for the testimony sought and that there was an insufficient showing of an inability to obtain the substantial equivalent of the DA's testimony without undue hardship. There were concurring and dissenting opinions. (Mike Frisch)
Posted by Alan Childress
Anyone who has actually practiced law knows my title is true and not at all patronizing. I am reminded of a secretary at MoFo during my days there (long ago) who was efficient and accurate in nearly every way. Even worked from dictation tapes. I once dictated an 18-page memorandum on the merger agreement at issue in the case. I got it back nicely typed and with no obvious errors, except for the 30 -odd references to the murder agreement (for which, context was clear, our firm was in full support -- even demanding that it be enforced). One might have thought the secretary would flinch or raise objection -- though perhaps not, out of personal fear -- but I honestly got the feeling that the secretary was just thinking, "meh, lawyers." I never raised the subject.
I was thinking of that today as it occurred to me that lots of Akin Gump attorneys will watch 20/20 tonight in an effort to find out which legal secretary or paralegal there is associated with the D.C. Madam's escort service, as reported by WSJ Law Blog. It's a story in which the firm's managers likely hope that there was no happy ending.
Posted by Alan Childress
The Arbitrary and Capricious blog posted this update: the county prosecutor won't file charges against the two canoeists ticketed for not wearing lifejackets as they tried to rescue a suicidal bridge-jumper. (Our prior story here, and the blog author's comment to it here, helpfully linking to this magicvalley news story.) This is a victory for prosecutorial and magistrate discretion (the latter also dismissed charges), to be sure. But I do wonder why most of the actors seem to fall all over themselves exonerating the officious deputy (whom I will call Barney Fife and misportray here as having told the canoeists, "Nip it in the bud.") for just doing his job. His job involves discretion and judgment, too. His job is not ticket-issuer; it is police officer. It was not just poor timing on the part of the deputy, as most people seem to say. Policing requires making wise and proper either/oar choices.
I suspect that, behind the scenes, Fife is being told to make some choices with thought and compassion, not just blind enforcement. But I wish the public statements were a bit more self-aware of the important role that discretion plays in law enforcement. They act as if everybody just did his or her job and the system worked. I think one part of the system had a minor breakdown.
I prefer the distance-creating position of the City of Twin Falls in a press release the blog quotes:
Please do not take the actions of the deputy in question as a reflection of the way the rest of the community may think or act. ... The deputy that issued the citation to the canoeists does not work for the City but rather the County of Twin Falls.
It's those damn County Mounties! Apparently the city was being flooded with public outrage and felt it needed to respond:
One of the finest attributes of Southern Idaho is the caring nature of the people who live here. Generally speaking, they are friendly, outgoing and ready to assist a neighbor in need.
I love the qualifier generally speaking. And their included links to the county sheriff's and even county commissioners' email addresses. Now for some modern-day direct democracy.
Thursday, May 3, 2007
The Florida Supreme Court decided a disciplinary case today that rejected a referee's report that proposed a public reprimand, probation and denying the Bar's request for fee forfeiture. Rather, the court suspended the lawyer for two years and ordered disgorgement of the fee to the Clients' Security Fund. A related case decided today rejected a proposed 60 day suspension and imposed disbarment against another firm lawyer who was the lead actor in the misconduct.
The lawyers were shareholders in a firm that represented 20 clients who sought to sue DuPont for damages allegedly caused from Benlate, a fungicide "suspected of causing severe crop damage and..recalled from the market in March 1991." Four firm lawyers were charged with misconduct involving entering into a secret agreement with DuPont for their own financial benefit. DuPont agreed to pay the firm almost $6.5 million in exchange for an agreement not to pursue future claims and "for the firm to possibly perform future work for DuPont on an hourly basis." The court held that disgorgement was an appropriate remedy for a prohibited fee.
The D.C. Bar prosecuted a similar case a few years ago that is cited by the Florida court. I wonder if any disciplinary action is contemplated against the DuPont lawyer/lawyers who made the offer. (Mike Frisch)
The Minnesota Supreme Court conditionally reinstated an attorney who had been indefinitely suspended from practice. Among the conditions are four years' probation, a requirement that he apply for malpractice insurance (he need not actually get such insurance "if he can demonstrate... that it is unavailable or unduly expensive") and a two-year prohibition against solo practice "unless [he] demonstrates...that he cannot find other employment as an attorney." (Mike Frisch)
A recent Delaware Bar ethics opinion concludes that partners in a Pennsylvania LLP composed of licensed attorneys that is considering formation of a Pennsylvania limited liability company that "will qualify in Delaware as a foreign limited liability company and engage in the practice of law in Delaware" will not violate Delaware Rule 1.5(e) regarding fee divisions between lawyers who are not in the same firm. Nor will the arrangement violate Rule 5.4, which prohibits forming partnerships and sharing fees with non-lawyers. The opinion notes that the arrangement must comply with Delaware Supreme Court Rule 12(d) which requires a bona fide office in Delaware. A concurring opinion finds the majority approach to the issue to be confused and "fails in its more holistic purpose to provide guidance." (Mike Frisch)
The Nevada Supreme Court unanimously approved major changes to its rules governing lawyer advertising, according to a press release issued last week. The new rules will go into effect on September 1. Lawyers "must submit their ads to the State Bar within 15 days after publication or broadcast. If an ad is deemed to be inaccurate or misleading, it must be pulled." A lawyer may get approval of an ad from the State Bar by submitting it prior to publication. (Mike Frisch)
The National Organization of Bar Counsel designates a case of the month to highlight decisions of wide ranging interest or importance. This month's case is from Massachusetts and relates to bar records concerning Judge Maria Lopez (who now has her own show on Sony TV). Michael Kettenbach unsucessfully sought access to non-public information concerning the bar status of Judge Lopez, who resigned from the bench in the face of charges of judicial misconduct. Kettenbach is the son-in-law of the late Telemachus "Mike" Demoulas, who was a litigant who lost before Judge Lopez in a case concerning the Demoulas family's highly profitable grocery store chain. I have an article on certain aspects of the case (which resulted in a three year suspension for a former president of the Massachusetts Bar and a pending disbarment recommendation for a former ethics counsel to two Massachusetts Governors) that will be published in the Georgetown Journal of Legal Ethics. (Mike Frisch)
Posted by Jeff Lipshaw
Over at Concurring Opinions (now a limited liability company), the always interesting and often provocative Frank Pasquale offers up some thoughts on normativity posing as objectivity, particularly in law and economics scholarship, highlighting James Hackney's book, Under Cover of Science: American Legal-Economic Theory and the Quest for Objectivity. I haven't read Hackney's book, but according to Frank it takes a CLS-approach to the implicit normative assumptions underlying law and economics. But you don't need to be a crit (a) to believe that there is something either tautological or self-evident in the welfare over fairness position (or is it "welfare is fairness"), or (b) to criticize reductionist approaches to making sense of the world. Over at Legal Theory Blog, Larry Solum has posted the abstract of Kim Ferzan's new piece "Some Sound and Fury from Kaplow and Shavell" (as well as a plug for Larry's own Virginia Law Review article, "Public Legal Reason").
I thought this excerpt from Frank's post was interesting. "Toward the end of the book [Hackney] tentatively points a way forward for the discipline, urging greater humility about theoretical claims and greater reliance on empirical work. In other words, the cure for scientism is genuine science." That's a mouthful and worthy of some unpacking.
I was in Bloomington the day before yesterday, paying personal homage to my new dean, Fred Aman, and happened to pass the office of that non-pareil empiricist, Bill Henderson. I banged on the door, was admitted to the statistical sanctum sanctorum (where, I'm telling ya, you can cut the heteroscedascity with a knife), and we got to be talking about the value of empirical work in establishing whether there is a problem for the theorists to be working on. As Carl Hempel (right) and others have pointed out in the philosophy of science, the scientist makes a pre-empirical theoretical leap in creating the hypothesis and constructing the experiments to test it. That probably doesn't raise significant issues of the normativity and objectivity in the method by which we study physics or geology or botany. We really do stand apart from the thing being studied. But I now cannot help but keep coming back to the problems of self-reference when we are studying ourselves. How sharply can we draw the line between the "is" and the "ought" when the scientist is part of the group being studied?
Well, in any event, I am looking forward to seeing Frank's promised piece!
Posted by Alan Childress
Josh Bowers (a Bigelow Fellow at the Univ. of Chicago) has posted to SSRN's journal on legal ethics and professional responsibility his article, "Punishing the Innocent." Here is the abstract:
Scholars highlight an “innocence problem” as one of plea bargaining's chief failures. Their concerns, however, are misguided. In fact, most innocent defendants are far better off in a world with plea bargaining than without. Plea bargaining is not the cause of wrongful punishment. Rather, inaccurate guilty pleas are merely symptomatic of errors at the points of arrest, charge, and/or trial. Much of the worry over an innocence problem proceeds from misperceptions over (i) the characteristics of typical innocent defendants, (ii) the types of cases they generally face, and (iii) the level of due process they ordinarily desire. In reality, most innocent defendants are recidivists, because institutional biases select for the arrest and charge of these repeat players. And most cases are petty. In these low-stakes cases, recidivist innocent de-fendants face high pretrial process costs (particularly if they are detained). But inno-cent defendants also enjoy low plea prices, because prosecutors ultimately prioritize work avoidance over sentence maximization. Moreover, defendants possess certain underappreciated bargaining advantages in these low-stakes cases. In the end, the costs of proceeding to trial often swamp the costs of pleading to lenient bargains.
Put differently, many recidivist innocent defendants are punished by process and released by plea. Thus, plea bargaining is no source of wrongful punishment; rather, it is a normative good that may cut punishment short, and (for the innocent at least) less punishment is a positive. Accordingly, the system must provide the innocent access to plea bargaining. Current vehicles for rational choice pleas -- like no-contest pleas and equivocal pleas -- are not up to the task. Instead, the system should re-conceive of false pleas as legal fictions and require defense lawyers to advise and assist innocent defendants who wish to enter into plea bargains and mouth dishonest on-the-record words of guilt.
Wednesday, May 2, 2007
Posted by Alan Childress
My GW colleague David Fontana has published this editorial in the National Law Journal on the U.S. Attorneys controversy and how the U.S. versions of politicized prosecutors, beyond this controversy, make other countries scratch their heads. It is called "APPOINTING PROSECUTORS: Make it less political." Examples from the U.S. and abroad, he argues, point to the balance we need to find between independence and accountability.
UPDATE: David is publishing an article tomorrow in The New Republic online, and it is called, "Reevaluating Hamdan v. Rumsfeld: Pyrrhic Victory." More below the fold.
Posting the top ten downloaded papers (as calculated by SSRN for the last sixty days) in the Legal Ethics and Professional Responsibility Journal is not the most exciting blogging that one can do, particularly when there has been no change whatsoever from the standings the last time around.
There is a certain congruence in this, I think. I'm up here in the home office, procrastinating about (or taking a break from, depending on your viewpoint) grading, and I suspect the dearth of downloads since April 19 is the result of everybody else grading. Which means it's time to link to Dan Solove's instant classic post on the stairway method.
So here again are the top ten.
1 Integrity: A Positive Model with Applications to Corporate Governance and Finance (PDF file of Keynote Slides), Michael C. Jensen, Werner Erhard, Steve Zaffron, Harvard Business School, Independent, Landmark Education Business Development.
2 Tax Opinions, David T. Moldenhauer, Clifford Chance LLP.
3 Disparities Between Asbestosis and Silicosis Claims Generated by Litigation Screenings and Clinical Studies, Lester Brickman, Yeshiva University - Benjamin N. Cardozo School of Law
4 Explaining the Value of Transactional Lawyering, Steven L. Schwarcz, Duke University School of Law
5 Screed or Scholarship: The Days of Whine and Roses, Jeffrey M. Lipshaw, Suffolk University - Law School
6 The Relationship Between Law School and the Bar Exam: A Look at Assessment and Student Success, Lorenzo Alan Trujillo, University of Colorado at Boulder - School of Law
7 The Corporate/Securities Attorney as a 'Moving Target' - Client Fraud Dilemmas, Marc Steinberg, Southern Methodist School of Law
8 The International Judge: An Introduction to the Men and Women Who Decide the World's Cases, Daniel Terris, Cesare P.R. Romano, Leigh Swigart, Brandeis University - International Center for Ethics, Justice and Public Life, Loyola Law School Los Angeles, Brandeis University - International Center for Ethics, Justice and Public Life
9 Incentivizing Institutional Investors to Serve as Lead Plaintiffs in Securities Fraud Class Actions, Charles Silver, Sam Dinkin, University of Texas at Austin, Affiliation Unknown
10 On Full Economic Costing, Thom Brooks, University of Newcastle upon Tyne (UK)
Posted by Nancy Rapoport
I'm cross-posting a version of this at MoneyLaw (What's going on at Ave Maria Law?). Jeff & Alan pointed me to this story: Crisis at Ave Maria Law. That post certainly looks awful for folks at that school, and my only caution here is that people on the outside of this controversy remember that they won't ever know the real story. It's all too easy to take sides, but only those inside the school have first-hand knowledge. (Even then, I doubt that any one person has complete knowledge of what's happening there. Deans don't know the whole story of anything; nor does the faculty. People know what they've seen and heard, but people also filter things through their own experiences.)
I'll never be able to put myself in the places of the UHLC faculty and staff members during that last year that I was dean. I wish I could, but I can't. Nor can any of them experience what that year was like for me, even though there are plenty of good-hearted people at UHLC who empathized with me. I'm certainly too far removed from the life of law students to pretend to imagine what those last few months of the 2005-06 academic year were like for them.
If folks want to weigh in on the generalities of the issues raised by the Ave Maria post above, that's one thing, and that's completely appropriate. But I just want to caution you that weighing in on specifics--unless you have first-hand knowledge--probably won't do much for anyone. If you want to get a feel for what it was like to have complete strangers weigh in on UHLC's issues last year, see my blog, under "Preview of some Managing By Ambush material" (on the right-hand side of the blog).
Posted by Alan Childress
Ronen Perry (Univ. of Haifa--Law) has posted to SSRN Law & Soc'y: The Legal Profession an essay that seems not particularly about legal ethics but is included here because I like the title and his abstract is clever too. The title is "De Jure [sic] Park" and his abstract is:
This Essay, solicited by the Connecticut Law Review for the inauguration of its online companion CONNtemplations, discusses the main structural deficiencies of student-edited general interest paper-based law reviews, namely that they are student-edited, general interest and paper-based.
The New York Attorney Malpractice Blog, here, links to this blog and quotes a detailed New York Daily News article on a slew of NY lawyers stealing client funds and overcharging clients. The news report, by William Sherman, is "Rotten lawyers face raft of raps in ripoffs." The examples, and in some cases the response by the bar, are sure to make Mike's blood pressure shoot to 300/200. The story begins:
Meet some of New York's lousiest lawyers.
One spent $131,000 of his clients' money on vacations, jewelry, lingerie and home improvement. Another charged 76 clients $11,500 each for filing a simple application that should have cost no more than $700. And a third deceived an elderly couple into investing their life savings - $222,000 - in a suspect real estate deal.
All three lawyers are among the scores of attorneys cited for misconduct last year by judges of the Appellate Division of State Supreme Court. None has been disbarred.
However, to control Mike's BP, I note that some of the article's examples appear to involve interim suspensions while the bar process -- which may well lead to disbarment -- runs its course. It does not help that in several instances the bar discipline inquiry is slowed by the fact that the lawyer is being flatly unresponsive.
Tuesday, May 1, 2007
Posted by Alan Childress
Grading exams, I missed my law school class reunion last weekend. Nevertheless, there were protests and heckles. As it turned out, the Attorney General showed up, prompting some quick-action protests themed around Abu Ghraib. Here is the story, from a Flickr website, Gonzales protested during harvard law reunion photoshoot. And their photo of the '82 class photo, also featured on this Stop Torture site. Protesters actually yelled "I don't recall" while the photographer was prompting "cheese." I think I recognize Stu the Philly labor union lawyer to his right and down one.
A case set for oral argument in the D.C. Court of Appeals tomorrow concerns the consequences of a false omission on a bar application. The applicant to the Virginia Bar failed to disclose that he had been arrested for murder and convicted of manslaughter while on leave from military service in Jamaica. He was sentenced to two years of hard labor and permitted to retire from the Marine Corps with the rank of captain, a reduction from his rank as a major.
In the Virginia bar case, he denied his guilt and "offered evidence intended to cast doubt on the integrity of the Jamaican proceedings and system of justice." Virginia rejected the collateral attack and suspended him for three years. The D. C. Board rejected Bar Counsel's argument that non-identical discipline of disbarment should be imposed as well as the attorney's argument that the matter should be dismissed.
Oral argument before the D.C. Court may be heard in real time by accessing the court's web site at www.dccourts.gov. (Mike Frisch)
Posted by Alan Childress
Whether or not Nancy has already "sewn up," and therefore preempted competition in, Jeff's ProfMove contest, she certainly has proved the History of Blogging, a nice graph added by Ian Delaney of London, UK, to his Flickr photo site:
More to the point, her story supports the thesis of one commenter to Ian's site: "the internet is just a pr device created by cats. one day they will rule us all." I add: Once again we are all saved, for the time being anyhow, by inertia and the lack of opposable thumbs. Anyway, Nancy may not have made history with her post but she is part of it. Good luck in Vega$!
Posted by Alan Childress
From the Idaho news site magicvalley.com [and HT to Arbitrary and Capricious] is the story, "Canoeists who pulled suicide victim to shore ticketed -- Man says deputy could have used some discretion in issuing citations for having no life jackets." Quotes the news report:
"The body was right there," said Bohrn, 58, of Twin Falls. "A girl deputy was trying to console everybody. Then a sergeant walked up. He said, 'I see you don't have any life jackets so I am going to give you a citation'. It seemed a little cold."
But surely Bohrn could appeal to the good judgment of the deputy's supervisor? Uhhmmm, no:
The sheriff stands by his deputy's conduct. "(Not carrying life vests) is against the law and the deputy is doing his job," said Twin Falls County Sheriff Wayne Tousley. "Just because somebody helps you in one incident doesn't mean you can't take care of the other incident. Is it wrong? No, it's not wrong. Could it have been done at another time? He had a discretion."
The key word there is "discretion." [I am reminded of the point made by Inigo Montoya to Vizzini in The Princess Bride: "You keep using that word. I do not think it means, what you think it means."] Actually, to be more precise, the "deputy cited them twice for not carrying life vests in either canoe." Each citation is $85.
Discretion matters. It is a police officer's lesson sort of learned by Sgt. Nicholas Angel of the London police
force service (far right) in the new and funny movie Hot Fuzz. But as is amply illustrated by recent events in North Carolina, D.C., Seattle, and Phoenix, there has to be some residual of discretion, too, in a prosecutor's office. Real discretion, not the kind of pretend discretion that would mail Bohrn his unflinching tickets the next day.
Bohrn's identity of the solution, like the sheriff's--patience?--is a bit more formalistic than mine:
"Maybe you get kind of cold in that job," Bohrn said. "I think there is a time and a place. They should use common sense. Maybe his superiors could tell him, 'Next time, wait until they get to the dock and the girls aren't crying.' "
Or not ticket them? See Jerome Skolnick's landmark law-and-society book Justice Without Trial: Law Enforcement in Democratic Society.