May 12, 2007
Proof of Fitness
The D. C. Court of Appeals will hear oral argument in In re Lea next Tuesday. A hearing committee found that Lea had failed to respond to lawful demands for information from disciplinary authorities, conduct prejudical, and failing to comply with Board orders to respond. There were attempts to get a response to Bar Counsel for over a year. The attorney still has not responded to the initial complaints after unfulfilled promises dating back for literally years. The hearing committee recommended that the attorney be required to prove fitness prior to being permitted the privilege of practicing law: "this is a truly egregious case, in which [the attorney] has managed to stonewall the disciplinary system for 3 1/2 years. [The attorney] evinces no sense of responsibility to account for conduct called into question by the underlying complaint."
The D.C. Board rejected the hearing committee's recommendation and has asked the court to permit automatic reinstatement. Yes, and the Board now de facto represents the non-participating attorney before the court, arguing against a fitness requirement despite six years of failure to respond. Bar Counsel and the Board will argue the point before a panel consisting Judges Farrell and Ruiz and Senior Judge Terry.
This case is the first major test of the so-called Cater standard that the Board majority has developed in failure-to-cooperate cases. Note that there were concurring/dissenting and dissenting opinions from the Board report (although the issue is not the fitness standard). Under the Board's formulation, a suspended attorney will be automatically reinstated unless Bar Counsel establishes "clear and convincing evidence that casts a serious doubt upon the attorney's continuing fitness to practice." Common sense will not suffice. There are some commentators (well, at least there's me) who think that the "standard" is a hypertechnical attempt to make it harder to protect the public from lawyers who have no business practicing law.
The link to the Board opinion is down. The case is Bar Docket No. 197-01(that means that the investigation began in 2001). The argument can be heard in real time at this link. The case is third on the morning calender. (Mike Frisch)
May 10, 2007
"Civil Law Is Not An Oxymoron"
The line between zealous advocacy that is offensive/obnoxious and unethical in the sense that it violates professional conduct rules can sometimes be hard to draw. The Delaware Supreme Court overturned a finding of no misconduct by its Board on Professional Responsibility in a case where the lawyer had accused opposing counsel of fabricating legal grounds to challenge a decision by an administrative agency. The court held that the "unfounded allegations" that impunged the integrity of the agency violated Rule 3.5(d). Because the lawyer's "use of offensive and sarcastic language" required a judicial response, the waste of resources violated Rule 8.4(d). Quoting a Justice of the Indiana Supreme Court : "Civil law is not an oxymoron." Sanction: public reprimand in the form of the linked opinion. (Mike Frisch)
AALS Section Newsletter Contains Wealth of Updates, Resources
Posted by Alan Childress
The AALS's Professional Responsibility Section, chaired this year by Russell Pearce at Fordham, has generously agreed to let LPB post its Spring 2007 newsletter for access to those who did not already receive it via membership or subscription channels such as email. It can be downloaded as a pdf file from this link: Downloadspring2007newsletter.pdf. Thanks to its general editor, Randy Lee at Widener-Harrisburg (right), as well as Russell Pearce and the board of the section, for making this available. I know that I read the newsletter regularly and assume that many others would appreciate it too, regardless of section membership. For example, I would think new and occasional teachers in the field, who have not joined the section, would benefit from its contents.
This installment has a wealth of updates and resources in the field, useful not only to teachers and writers on the legal profession and professional responsibility, but also to practitioners, judges, and observers of the profession interested in the subject of legal ethics. Russell Pearce offers an editorial on the place of teaching legal ethics and ethics scholarship in the hierarchy within law schools. Some schools are recognizing its importance but there have been a few worrying steps backward as well.
Member announcements include a conference on public obligation October 17-19 at Samford's Cumberland School of Law, and one next March at South Carolina on mentoring and professionalism.
Fred Zacharias (San Diego) provides a comprehensive bibliography of recent published scholarship and symposium issues in the field. And Roy Simon (Hofstra) has helpfully summarized many state actions on ethics rules, national developments, and ABA rules changes. For the state-by-state recent developments, Roy provides links. Susan Carle (American) summarizes and organizes recent developments in the case law. All of these contributing editors encourage submissions and give their email addresses.
The newsletter is designed and produced by Paula Heider at Widener.
Confidentialty vs. Privilege
A case decided today by the D.C. Court of Appeals provides an excellent teaching example of the distinction between the duty of confidentiality and the attorney-client privilege. The case provides guidance to an attorney faced with an attempt to compel disclosure of arguably privileged information relating to the representation of a former client.
Attorney Koenick represented a client who claimed she had been fraudulently deceived in the sale of her real property. The defendants sought dismissal on statute of limitations grounds, claiming the plaintiff had been aware of the basis for suit as early as August 1999. The factual support for this contention was a demand letter sent by Koenick dated August 16, 1999. Defendants sought Koenick's deposition. He appeared but declined to answer questions, invoking the privilege and Rule 1.6.
On appeal, the court approved the attorney's ethical approach of invoking privilege, declining to answer and appealing the order of the trial judge to disclose. The court holds (quite correctly) that an attorney must (not "may" as Rule 1.6 provides) answer questions when required by law or court order. After making "every reasonable effort" to test the issue through appeal, the lawyer must disclose otherwise confidential information that is not protected by the privilege. Here, the topics that the defendants sought to explore did not relate to communications between Koenick and the client and were not privileged. Because the exact date that Koenick received his client's information was not intended to be confidential, such information also must be disclosed. (Mike Frisch)
May 9, 2007
Consent Reprimand Affirmed
The Michigan Attorney Discipline Board affirmed a consented-to disposition in a case where the attorney had been charged with a number of ethics violations including neglect, failure to communicate and misrepresentations to a client. The lawyer had filed suit on behalf of the client against a casket company. The suit was dismissed with prejudice and the lawyer failed to advise the client. He also wrote her a post-dismissal letter that indicated that the suit was progressing. The lawyer and Bar Counsel agreed that he had violated the neglect-type charges and the dishonesty-type charges were dismissed as part of the consent process.
Interestingly, the appeal of the reprimand came from the former client, who felt the consent was too lenient and was concerned about the agreement to not pursue the dishonesty charges. The Board affirmed the consent notwithstanding the victim's concerns, finding no basis to second-guess the exercise of prosecutorial discretion by Bar Counsel. (Mike Frisch)
Generalists Versus Specialists
Posted by Jeff Lipshaw
I have recently been dipping my toe into an area that is new to me, and a colleague who I respect as much or more than anyone in the world offered the wise and well-meaning FWIW counsel that this may be something you don't want to try at home. That may be par for the course in the funny hybrid that is legal academia, and a source of the prevalent (and by no means trivial) sense that "law and . . . " requires a deep level of expertise, if not an advanced degree, in the ". . ." In this particular case, the warning was that the specialists in the particular field believed that attempts to generalize or analogize from the specialty were usually off-base, because you had to be a specialist truly to understand the point, and most non-specialists screwed it up.
That is counsel worth taking to heart, but is it the end of the story? It certainly bespeaks caution, and in my case it was a wake-up to respect the precision of the particular specialty. But I started wondering about several things.
First, I drew on long practical experience to say "I have a natural distrust, born of many years of being a generalist dealing with specialists, of specialists telling me that only specialists can really understand the subject matter of the specialist, but being unable to tell me why because I'm not a specialist." When you are the generalist sitting "atop" an acquisition, for example, it's often the case that you compromise the optimum position in a specialist's area, whether it is real estate, or environmental, or insurance. But it's also possible really to hack up something if you don't understand it - I'm thinking in particular of transitional service agreements that are common when the buyer of a division needs the seller to provide a set of services to the business for a period after the closing. I have seen instances where the generalists did not understand, for example, how the SAP contract allocates "seats", because of insufficient specialized knowledge, with the result that the buyer either ended up paying more to resolve the issue, or simply had no support service.
Second, as to counseling businesses more generally, you can think of a Venn diagram with overlapping circles representing law and business, respectively. My position was always that the lawyers were responsible for understanding the overlap and being able to explain it to the business people. It didn't mean that a lawyer had to be an accountant or a manufacturing engineer, but it meant understanding enough of the cross-discipline to get the overlap right. (Many litigators love being litigators because they have to become "experts" capable of communicating to fact-finders the essence of something as to which they are not experts over and over again.)
Third, I have written before on a Harvard Business Review article from the early 1990s by Womack and Jones, the authors of the classic industrial organization study The Machine that Changed the World, entitled The Myth of the Horizontal Organization. As businesses within diversified corporations became more "empowered" and "decentralized" and "specialized," and the organization got "flatter," the question was who would be responsible for seeing the opportunities that lay between these specialties. By and large, it couldn't be the specialists.
Fourth, there's no question that scientific theories take on an analogized popular meaning. If you say something outside of quantum physics about the Heisenberg Uncertainty Principle, you are probably not talking about issues of particle momentum and position, but instead some kind of polarity in which being precise about one pole means that you cannot be precise about the other. I don't know how nuclear physicists feel about that. Do they just shake their heads and say - "what can you do?" Relativity and Freudian psychology have produced similar effects.
But does that mean the analogies, or the popular sense of the scientific principle, are invalid? Do you have to be an expert in both disciplines to be cross-disciplinary? Am I wrong in saying the great 20th century philosophers of science were not scientists? Do philosophers of science and scientists of philosophy (brain science?) have anything to say to each other? Perhaps a dose of pragmatism is helpful here: if the analogy is useful, regardless of its technical bona fides, then it is worth something.
Letter Of Recommendation
The Massachusetts Supreme Judicial Court reduced a one-year suspension imposed by a single justice in a disciplinary case where the accused lawyer had represented a client in 1994 who was alleged to have posed as a lawyer and converted entrusted funds. The client was exposed as having misrepresented his academic credentials and legal bona fides at a deposition attended by the accused lawyer.
Several years passed and the accused had "joined a large [but unidentified] Boston law firm as a partner." The former client, who had kept in touch, advised him that he had resolved his bar status in California and was doing legal work at a Boston bank, which the accused attorney confirmed. The former client then applied for a position with "the [accused lawyer's law] firm's technology consulting affiliate as a banking and technology specialist." The accused gave him a positive reference, which was his only involvement in the hiring process.
The firm believed that the former client was admitted in California and was eligible for admission in Massachusetts. The accused wrote a letter of recommendation for the former client's admission in Massachusetts that noted "in the face of adversity, I have found his conduct to be honest, honorable and professional. I am confident he will uphold the highest standards of the bar." The unspecified "adversity" was apparently a reference to the former client's family life.
The firm then discovered that the former client had never been admitted in California. While he was fired, "his significant practice at the firm remained a serious matter" that the accused lawyer was assigned to deal with. The accused was personally named in a malpractice suit arising from the former client's work. He filed an affidavit in connection with a motion to dismiss denying any involvement in the hiring process.
The court held that the meaning of the affidavit was a question of law and rejected the finding of dishonesty made by the special hearing officer. The court found it "eminently believable" that the accused lawyer had been duped into believing his former client had been admitted in California. However, the letter of reference to the Board of Bar Examiners was found to be misleading, warranting a two-month suspension, which the accused had already been serving prior to the full court's decision.
Why have a special hearing officer if the crucial credibility finding with respect to the affidavit can be overturned by calling it a question of law? If you have a problem with the link, the case is Matter of Slavitt, decided May 2, 2007. (Mike Frisch)
May 8, 2007
Favor Leads To Suspension
A Magistrate who set bond for a police officer's friend was suspended from his judicial duties for six months. The officer wanted the friend released to go to work the next morning. the magistrate's court was not open and he was not the magistrate on call; nor did he make any effort to ascertain the properly designated judicial officer responsible for setting bond or notify the chief magistrate of the special bond hearing. The victim, who wanted to be present, was also not notified. The South Carolina Supreme Court noted that he had a prior record of similar misconduct. (Mike Frisch)
Letters Of Caution
New York retains a confidential sanction called a letter of caution. To get some sense of the type of ethical misconduct that results in such a sanction, we provide a link to the report from the Appellate Division, Fourth Judicial Depatment that summarizes (without identifying information) the findings that resulted in the warning. Click on Attorney Grievance and a menu will appear that provides access to the report. (Mike Frisch)
More Illinois Bar Discipline Cases
My recent review of new hearing board reports from Illinois led to a number of interesting matters that shed some light on problems in both practice and private affairs that can jeopardize a legal career. One involved an associate at a Chicago law firm who "falsely billed clients for work she had not performed." The lawyer's practice involved litigation in defense of hospitals and doctors in med mal claims. She was required to keep time records detailing time, work and client matter involved. While she initially excelled, her productivity declined, leading to conversations with her supervising attorney. The billing misconduct was discovered by an internal firm audit after the attorney had moved to a new firm. The attorney denied the allegations, which were based on a lack of records of the work allegedly performed.
The hearing board found that the attorney had engaged in the misconduct, which involved 88 hours of work billed at $12,450. The panel notes: "We presume the Respondent's primary motivation in engaging in false billing was an attempt to meet the number of hours she was required to bill during a time when she was having difficulty achieving the required number of hours." Further, "she did not act out of greed or direct financial self interest."
Two questions: how can a panel assume a non-fraudulent motivation when the lawyer denies misconduct? Is 30 days a tad light for a pattern of billing fraud in excess of $12,000?
The second case I find more difficult and sympathetic. The attorney has never had a client-initiated disciplinary complaint. She did have a longstanding problem with alcohol and drug abuse. During the course of a custody proceeding for her minor child, she was ordered by a judge to produce a urine sample. Concerned about recent cannabis use, she went back to her law office and sought a clean sample from two people, each of whom refused. She was reported by a partner. There also were two DUI convictions that were not reported to bar authorities as required. The attorney presented evidence of significant alcohol abuse and her present sobriety. Her treating doctor and the bar's expert witness diagnosed "bipolar disorder, alcohol dependence, and cannabis and cocaine abuse." While treatment was ongoing, the bar's expert expressed concerns and suggested that the lawyer participate in a "relapse prevention program."
The hearing board rejected the bar prosecutors recomendation for a stayed suspension with probationary conditions. Finding that she does not "fully understand" the misconduct, the board recommends a six month suspension with 60 days actually served, followed by probation for two years with 16 enumerated conditions.
Because there have never been any client complaints, I'd be inclined to trust and adopt the bar's probation recommendation. In any event, it is hard to understand why this case merits twice the suspension proposed for the billing fraud. (Mike Frisch)
May 7, 2007
Wendel and the Curmudgeon on Good Judgment
Posted by Jeff Lipshaw
Brad Wendel has another thoughtful piece over at Legal Ethics Forum on the rescission of the job offer previously extended to the law student who helped run Auto Admit, the purported law school discussion board that turned into a haven for anonymous and horrific chatboard colloquy.
It's always a pleasure to read Brad's insights on practice because, as they say, he's been there and done that in the large firm environment. Here's a sample:
I could write a long post on the concept of judgment at a big law firm, but for the purposes of this discussion, one of the aspects of good judgment is not unnecessarily exposing the firm (or clients, of course) to risks. Associates who wrote boneheaded letters to opposing counsel, filed overly aggressive motions to compel, acted like Paulie Walnuts in depositions, and yelled at secretaries and paralegals were deemed to exhibit poor judgment. The firm tried to avoid hiring new lawyers who would create "judgment" problems, and in every class of summer associates there was at least one person who didn't get an offer -- or got one only after a long discussion on the hiring committee -- because of fears that this person would do something stupid as an associate.
Way back when I was a second year associate, we had a member of our entering associate class who apparently finished in eighth place in the Detroit-Windsor Marathon. Since that meant running a marathon in about the 2:20 range, by and large the finishers at that level were professional runners and all knew each other. Nobody could remember ever seeing him until the last couple miles. The Free Press, which was the primary sponsor of the race, began an investigation and contacted the firm. As I recall, the associate was indefinitely and later permanently suspended for refusing to cooperate with the investigation. Just recently I got into a knock-down drag-out argument with a friend who questioned why a law firm would fire an associate under those circumstances (and whether it had the legal right to do so).
And speaking of practical good judgment, I just opened an envelope and pulled out a copy of Mark Herrmann's The Curmudgeon's Guide to Practicing Law, published by our very own ABA Section of Litigation. I'd say about 50% is good common sense (how not to abuse e-mail, how to write a law firm memo, etc.) and about 50% is the Curmudgeon's Guide to Practicing with the Curmudgeon (example: the Curmudgeon doesn't like to get notes passed to him during arguments or examinations; I had a working relationship with a partner who liked getting notes and incorporated them seamlessly into what he was doing). But it is a fast, fun read.
I particularly liked the chapter entitled "The Curmudgeon on Couth." The Curmudgeon focuses mainly on the practice itself, and not on uncouthness like summer and permanent associates drinking too much at firm gatherings. Here's my particular piece of advice, given that the season is just about upon us. I like a drink as much as the next guy, but professional gatherings, and particularly law firm parties, are not, despite the bar, drinking occasions. (There is even some debate whether they are occasions during which you should expect to have fun. My vote is no, but reasonable people can differ.) If you pour some sparkling water into a highball glass and throw in a lime, it looks like a gin and tonic. When you are twenty-five and buzzed, you endanger your career by acting like an idiot. When you are sixty and buzzed, you endanger your career by hitting on the twenty-five year olds. (Trust me, I have seen it all.) Here it is thirty years later, and I still don't drink (you may see me holding one, but is it being consumed?) at professional gatherings.
May 6, 2007
Lord Of The Litigation
As a follow on to my recent post regarding access to disciplinary case information, I have been taking a look at hearing board reports on the web page of the Illinois Attorney Registration & Disciplinary Commission. One case involves charges against a lawyer who represented a client who had spent a weekend in Las Vegas with Lord of the Dance Michael Flatley. She claimed that she had been sexually assaulted. The lawyer wrote Flatley a letter claiming that he had gathered evidence to support the claim (in fact he had not) and demanding $30 million in damages. Rebuffed, the lawyer filed the suit. Flatley filed suit in Los Angeles against the lawyer and client alleging fraud and extortion. The suit against Flatley was voluntarily dismissed.
The bar prosecuted the lawyer for violations of a number of ethical rules including threatening to present criminal charges to obtain an advantage in a civil matter, asserting a position merely to harass or maliciously injure another and conduct involving dishonesty/fraud. The lawyer failed to participate in the bar proceedings. The hearing board majority recommended a one-year suspension that will continue until further court order (the further order requirement related to the lawyer's failure to participate). A dissent felt that the conduct was sufficiently egregious to warrant disbarment. (Mike Frisch)
Travels with Jeff: LPB Hits the Road
Posted by Jeff Lipshaw
I'm beginning eight days that will take me from the hotel room here in Chicago (a family wedding last night) back to Indianapolis this morning, to New Orleans tonight where I will, except for grading the 1L Contracts II exams, close out my year as a visitor at Tulane, pack my worldly possession into the Prius, pick up Alene at the New Orleans airport on Wednesday evening, and on Thursday morning, hit the almost direct northeasterly route the interstate system seems to have created between New Orleans and Boston.
Nobody will ever quite match Frank Snyder's Late Night Thoughts on Blogging While Reading Duncan Kennedy's 'Legal Education and the Reproduction of Hierarchy' in an Arkansas Motel Room but we will see if there are some legal profession insights along the way.
Here are a couple initial observations. The Four Seasons Hotel in Chicago posts "An Act for the Protection of Innkeepers" in a gold frame and very nicely done matting at the elevators on each floor. The print in the reproduced section of the Illinois statute is very small. Before the doors opened, I learned that the hotel has a lien on the baggage I brought into the hotel for any unpaid charges. I wonder if there is an auction market in sweaty gym clothes?
This was a very elegant black tie Jewish wedding. I was relieved to find that but for the waist of the pants, which probably could be taken out an inch, the tux I bought sixteen years ago still fit. I like the classic white shirt and black tie look, or for a day time wedding the Solicitor General in the Supreme Court morning coat look. I don't like the vest and straight tie thing, which seemed to be big among the my son's prom-going friends.
More to the point of the blog, I am one of the world's Olympic-caliber party poopers, particularly when my dinner does not start before 10:30 p.m. On the other hand, I'm a cheap drunk, and a couple of Glenmorangies got me into a philosophical frame of mind about law and norms. The Jewish wedding actually consists of the betrothal and the marriage, and the centerpiece is the marriage contract, or ketubah. (For more on ketubot - that's the plural form of the word - see my wife's website at Pickwick Arts LLC.) There is also the custom of yichud, in which the new bride and groom have a few moments alone after the ceremony, supposedly to symbolize - symbolize, mind you - the consummation of the marriage.
All of which got me to thinking about how many layers upon layers of law and custom and ritual are entwined around what is at the core of all of this: sex.
At which point I fell asleep.
Ethics Journal Winter Edition Hits Street
The Georgetown Journal of Legal Ethics has published its Winter 2007 edition. One article in particular is dear to my heart -- The Case for Less Secrecy in Lawyer Discipline, by Professor Leslie C. Levin of the University of Connecticut School of Law. Professor Levin argues convincingly that increased transparency will allow the public and the profession to more accurately evaluate whether self-regulation operates in the public interest. I absolutely agree that there should be far greater access to information concerning disciplinary matters than most bar regulatory regimes presently permit.
As a blogger with an interest in the legal profession, I regularly visit the web pages that provide information about lawyer discipline. The sites for the highest court or state bar in each state are my primary sources. I have learned that public access to information concerning bar discipline varies widely from jurisdiction to jurisdiction -- for instance, Illinois provides information concerning pending charges against lawyers and trial level reports. By contrast, the District of Columbia does not have on its web page (or anywhere else as far as I can determine) any readily accessible information regarding pending charges, scheduled hearings, the identity and background of hearing panel members, or hearing committee reports finding misconduct. The court's rule governing disciplinary procedures mandates that such information is a matter of public record (see section 17).
The lack of public access to the hearing committee reports is particularly frustrating to me -- you can't evaluate the quality of a disciplinary system without ready access to the crucial trial level findings. Indeed, in D.C., it is my experience that you often need to read Bar Counsel's post-hearing briefs to understand a case -- as the hearing committees sometimes simply ignore facts or evidence that is inconvenient to their conclusions.
I recently was involved in a forum to discuss proposed "reforms" to the D.C. bar discipline system. The signature proposal is an unworkable proposed rule for consent dispositions that will make it virtually impossible to resolve cases short of disbarment by consent. Under the rule, it would be far easier for a criminal defendant to plead guilty to first degree murder and be sentenced to life in prison than for a lawyer who has engaged in a single act of neglect to agree to a public censure. Obviously, swift and efficient administration of discipline is not a goal of the proposal.
The proponents justify this consent disposition rule under the guise of a need for transparency. Notably, the committee that studied the disciplinary system held no public hearings prior to issuing its report. It held a single public hearing after issuing its draft report that resulted in thoughtful criticism that did not change a word of the recommendations. I guess transparency is in the eye of the beholder.
I would be more sympathetic to the invocation of a need for transparency as justification for an unworkable rule if all public information about pending D.C. cases was available to the public on line. As indicated above, it is not. (Mike Frisch)
May 6, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack