May 19, 2007
Where Is The Conflict?
The Supreme Court of Washington suspended an attorney for 18 months based on findings of misconduct in representing multiple longshoreman clients in a civil rights action. The court majority found that the attorney had represented conflicting interests and engaged in improper billing practices. The case is somewhat unusual in that there is an impassioned dissent that attacks the conclusion that the representation was improper ("Even if we ignore the paucity of evidence and agree with the specific facts found by the board, these facts do not establish unethical behavior") and suggests that the lawyer should be commended, not disciplined, for bringing the litigation to a highly successful resolution. (Mike Frisch)
May 18, 2007
Suspended Means Stop Practicing
The New York First Judicial Department disbarred an attorney who had previously been suspended for three years. After the suspension, the former attorney continued to purport to act as counsel for an architect that the opinion identifies as "Eva". He also bounced two checks from his escrow account and did not respond to the disciplinary investigation. Two strikes, he's out. (Mike Frisch)
A lawyer who overbilled two elderly and vulnerable sisters by "continuing to perform legal work to collect money that had been stolen...by their former attorney despite the unlikelihood that he would recover enough funds to justify his fees" was disciplined by the Ohio Supreme Court. The first lawyer had misappropriated over $800,000 in assets. The lawyer here padded his bills with "unnecessary and repetitive tasks." The court rejected the proposed sanction of public reprimand. Rather, the court ordered a six month suspension followed by probation, a requirement that the attorney notify probate courts of the discipline in future cases and payment of $50,000 restitution.
Why did the Ohio Board of Commissioners on Grievances & Discipline conclude that suspension was too harsh for taking advantage of vulnerable clients? I suppose that volunteer Boards just have a hard time accepting that it is possible to overcharge a client. Fortunately, the court has the ultimate authority and responsibility to consider the public interest and the integrity of the profession. (Mike Frisch)
Public Service Announcement: Moving
Chances are that boxes were not included in the estimate. Ask your mover if there are used boxes you can get for free. In any event, buy wholesale from the mover and not retail at a self-storage facility. The big wardrobe boxes were almost $16 at the storage facility where I have kept stuff for a couple years; the moving company didn't have any used, but the new ones were only $7.50.
Also, chances are that you have a moving allowance and not an all-expenses paid deal. I had one of the latter once - de rigeur in the corporate world. If you have ever watched the movers pack, it's amazing how much paper and how many boxes they can pull out of the truck. Doing it yourself (and, say, packing the fragiles in towels or clothing or whatever) saves a lot of money and is safer.
You cannot move a propane tank. I wonder if there is a business in being a clearinghouse for the exchange of gas grill propane tanks for moving professors. There must be somebody moving to Indy who needs a 3/4 full tank, and somebody who is leaving one behind in Boston.
Theory of Contract or Theory in Contract?
Posted by Jeff Lipshaw
Two of my favorite bloggers, Gordon Smith and Nate Oman, each have something posted on contracts casebooks, though I realize now that Nate's was on the AALS Contracts listserv and for my purposes has disappeared into the ether. I stand to be corrected, but I believe Nate was endorsing the Jody Kraus and Robert Scott book for its incorporation of both law & economics and deontological approaches to contract theory. Gordon was lauding the Macauley Wisconsin materials for their de-emphasis of the usual endless doctrine on offer and acceptance.
As to Nate's comment (which I cannot find, much less link, thanks to my new IMAP versus POP mail server, so this is a little unfair) I would love to offer a seminar some day on advanced contract theory, something like the one Avery Katz offers at Columbia, to self-selecting students who actually care about this stuff. The closest I'm able to bring myself to theory in first year contracts is the tension between notions of contract law as traditional deductive or inductive self-contained doctrinal system versus the kind of result-orientation of critical or realist thinking. That, it seems to me, is at least a theoretical issue with which any contract litigator (or any litigator period) has to grapple. But all of my short forays into deeper theory have met with something between stone silence, uncomfortable squirming in seats, or the inevitable "will this be on the exam?" One of my new colleagues at Suffolk said something to me I thought was perceptive as we were discussing some of my wilder jaunts into the intellectual Van Allen belts: "it's good you have those outlets in your writing so that you don't have to foist it on your students."
As to Gordon's comment, I agree, but I'm not sure what in contract law really does make a difference. Consideration is really the doctrinal entry point for a discussion of the theoretical question about the distinction between promises and contracts. Who in practice ever debates this? Statute of frauds and parol evidence have some impact, I guess, although I only recall one instance of facing an S/F issue in practice (that real estate brokerage agreements in Michigan have to be in writing - this in response to a broker who was trying to squeeze us for a commission he claimed had been verbally promised to him), and parol evidence really is an evidence issue. Here's a bold assertion: 98% of contract work - ex post and ex ante - is interpretation, and it constitutes about one twenty-eighth of the normal first year contracts curriculum. On the other hand, I can't help but think that mind-numbing inculcation in lawyer-like anality is a good thing, because it transfers to the interpretation exercise, which is at the core of everything.
Learn To Share
A recent decision of the Florida Supreme Court suspended an attorney for one year for misconduct in two matters. The first complaint involved an ownership dispute between the accused and another attorney (now disbarred for a felony drug conviction) over a building that housed their separate law practices. The accused executed a promissory note for a 1/3 interest and rejected offers to sell the interest back. He then filed a police report alleging that the other lawyer had assaulted him and removed his files. Litigation- one case involving a meritless request by the accused for an injunction against violence from the other lawyer, the other for partition of the building- ensued. The partition matter settled and the accused filed an affidavit changing his story about having seen the other lawyer with a loaded pistol in the office. He also made accusations against the judge in the partition case and a former paralegal of the other lawyer. The second complaint involved contempt for two instances of in-court bad behavior.
The Florida referee found the accused had violated numerous ethics rules involving frivolous litigation and false statements to a tribunal. There was prior discipline, a pattern of misconduct and a failure to acknowledge wrongdoing. The referee also found, and the court agreed, that the attorney's "inability to grasp the problematic nature of his conduct are enough to raise the issue of [his] mental stability." The court rejected the referee's proposed ninety-one day suspension in favor of a one year time out because the accused had lied under oath. The court aptly notes in quoting an earlier case: "Our condemnation of this type of misconduct is not of recent vintage."(Mike Frisch)
May 17, 2007
More on Similarities Between Programming Language and the Language of Law
Posted by Jeff Lipshaw
James Grimmelmann (NYLS) has posted a sequel over at PrawfsBlawg to his earlier post on the similarities and differences between programming language and the language of law. There is a lot to chew on, and I agree and disagree in part.
1. Both disciplines do, as James notes, invoke issues of language. Moreover, both invoke a translation from putatively less precise words and sentences to those designed to accomplish certain ends.
2. James recognizes the limits of the parallel, but I think those limits are deeper than show up in the post. The closest analog (no pun intended) to programming language is not the discourse of a courtroom, but the construction of a contract or a code (think Internal Revenue Code or Securities Act of 1933 and its regulations). The parallel is that both lawyers and programmers seek to map their symbols onto a discrete reality, and seek to have the program operate to accomplish the intended result. Both have the possibility of internal and external bugs. I have written (unfortunately) complex contracts with the equivalent of inescapable feedback loops. I have also written drafts of contracts that worked internally, but failed fully to map the intended deal. I am sure the same can be said of legislation. I know both flaws can occur in programming.
3. Here are a bunch of problems with the parallel in no particular order:
- There is no equivalent in programming language of a perlocutionary act - that is, a sentence that imparts meaning to the recipient beyond the illocutionary act.
- There is no equivalent in programming language to the issue of "family resemblances" ("shew the children a game, etc." in Wittgenstein). Ambiguity and inconsistency is a hallmark of language itself, not just of law.
- Programming language is a wholly deductive formal system. There is no mystery, if we have premises A, B, and C, due to the rigid rules of inference, what the conclusion will be. Wittgenstein also showed that language invoked inductive rule-following, in which there is a leap to the conclusion that is not determinate by language alone. That is to say that our language is based on mutually understood bedrock concepts that infuse the words with meaning, rather than the other way around.
- Programming language is not the language of compromise or agreement. That is to say, the human beings who desire the program may disagree as to what the program was intended to accomplish, but the program itself can only serve one master. Legal language, on the other hand, involves speech acts (indeed, performatives) intended to accomplish the expression of a mutual intention. The combination of the inherent imprecision of language (the fact of family resemblances between words and meanings), the role of rule-following, and exigencies of human desire, I have contended, are what give rise to ex post opportunism in hard cases. Programs, like logic, cannot be opportunistic; they just are what they are.
Limited Liability For Partner Misdeeds
The Lawyers' Manual on Professional Conduct reports on an interesting recent decision of the North Carolina Court of Appeals. A partner of a lawyer who had misused trust funds from an estate had been sued by the successor trustee. The court held that the state limited liability company law protected the partner from civil suit so long as the innocent partner had no actual knowledge of the defalcations. The court further found that the partnership agreement of the firm did not create any duties to third parties that could be enforced in civil litigation absent evidence of an intent to confer such benefits on the purported third pary beneficiary. (Mike Frisch)
May 15, 2007
Wendel, Perlman, and Freedman Discuss the Goodling Controversy
There are bloggers, and there are scholars who blog, and Brad Wendel demonstrates the latter again over at Legal Ethics Forum, with a post on l'affaire Monica Goodling - US Attorney, followed by comments from Andy Perlman and Monroe Freedman. Check it out.
Which Came First: The Guilt or the Billable Hours?
I have only "billed hours" for about twenty months in the last fifteen years (my short stint as "of counsel" in my old law firm between corporate jobs), but my shpilkes today remind once again of the age-old question: do Type A people create billable hour guilt, or does billable hour guilt create Type A people? Back in my younger lawyering days, I always knew that if I took a two-week vacation, it was going to cost me (this is going to sound quaint, but it was a midwestern large firm in the 1980s) about 70 billable hours. (Aside: one of the primary benefits of going in-house, particularly in the automotive business, was NOT reduction in hours or more control over schedule; I worked longer and harder in-house than I ever did in the law firm, but that's a whole 'nother story. No, the best thing was that the entire automotive industry shut down between Christmas and New Year's Day, and not only did you not have to worry about not billing hours, but when you got back in the office, by and large, there was very little waiting for you that hadn't been there when you left.)
So here it is May 15, I'm back home in Indiana (they should make a song out of that idea), I can't grade exams because they won't get here until tomorrow at the earliest, but I feel like I should be doing something productive. I can no longer remember if this predated my thirteen plus years (1979-1992, the Wonder Years, when you grow to 90% of your adult income) as a billable hour producer. Maybe it's a genetic predisposition that is triggered by environmental factors.
* Acknowledgment to lawsandlaugh.com for the cartoon. I just discovered the site. It looks like fun.
Knowing Waiver Of Rights?
The United States Supreme Court yesterday issued a 5-4 decision (Justice Thomas writing for the majority) overturning a Ninth Circuit order that had found that a district court abused its discretion by refusing to hold a hearing on a habeas petition. A Ninth Circuit panel decision denying relief had been overruled en banc. The petition had alleged ineffective assistance of counsel in a death penalty case. The defendant had prevented his attorney from presenting mitigating evidence in the penalty phase, telling the judge "I think if you want to give me the death penalty, just bring it on. I'm ready for it."
The majority concluded that the claim was never presented to the state court and that an evidentiary hearing was thus barred. Further, no specific colloquy on waiver of the right to present mitigating evidence is required and the defendant "clearly understood the consequences" of his decision to forego such evidence.
The dissenters (Justice Stevens joined by Justices Souter, Breyer and Ginsburg) focus on the fact that significant mitigating evidence of a serious psychological problem that shed light on the defendant's conduct was unknown at the time of trial and sentencing. "No one, not even the Court, seriously contends that counsel's investigation of possible mitigating evidence was constitutionally sufficient." The dissent takes strong issue with the suggestion of a knowing waiver of rights, suggesting that the defendant is at least entitled to a hearing. Further, "the Court thoroughly misrepresents [the defendant's] mitigating evidence" and "ignores [his] organic brain disorder, which would have explained not only his criminal history but also his repeated outbursts at sentencing." (Mike Frisch)
May 14, 2007
Form Over Substance
The Iowa Supreme Court denied compensation in excess of the $1000 statuatory maximum to an attorney who was appointed as guardian ad litem to a juvenile in a child-in-need of assistance proceeding. The attorney's claim for excess compensation was filed untimely and denied on that basis by the public defender. The juvenile court ordered the public defender to pay over $2000 on a theory of quantum meruit. The public defender then petitioned for review. The Supreme Court disagreed with the juvenile court, although it expressed appreciation for the lawyer's services and had no doubt that a timely petition for excess payment would have been granted. (Mike Frisch)
Department of Small World - Degrees of Separation Division
After I did the post, I sent an e-mail to James Grimmelmann (see below) and mentioned that a very smart history Ph.D. candidate named Jan Grimmelmann graded my first history paper in the fall of 1973 at the University of Michigan, and was and is a long time friend of one of my best friends, Andy Achenbaum (Houston - History, Gerontology, Social Work), and was he related?
James: "yes, she is my mother."
Improper Witness Payment
An attorney was suspended for three years, with 18 months deferred, by the Louisiana Supreme Court last Friday. The attorney was one of eight appointed members of a Plaintiff's Legal Committee ("PLC") in a federal class action arising out of an explosion at a Shell Oil Company facility. He was introduced to a longtime Shell employee who told him that Shell's lawyers were destroying evidence and "teaching witnesses to lie." The employee made it clear that he expected to be compensated for his help. The attorney agreed and paid the employee/informant $5,000. Thereafter, the attorney failed to correct statements of co-counsel to the tribunal that denied that there had been such payment.
The attorney was found to have violated the ethical prohibition against payments to a fact witness and to have misled the tribunal by failing to correct the inaccurate representations. The federal court imposed a one-year suspension. The Louisiana court rejected a majority Board recommendation of disbarment over the dissent of a single judge who would have imposed a "more severe" sanction. (Mike Frisch)
Grimmelmann on Pragmatics and Theory in Law and Programming
Posted by Jeff Lipshaw
Close readers of this blog will know that I have been thinking about mathematics and law recently. I agree with Carolyn Elefant's comment about the gray areas that exist in the product of lawyers' work (versus programmers' work), but I think it goes deeper than that.
Perhaps the main difference between mathematics, logic, and programming, on one hand, and what lawyers do, on the other, is the difference between provability and empirical truth, and beyond that, normativity. There is no normativity in logic - we build from axioms and rules of inference, often in almost indecipherable complexity. A theorem in logic or mathematics isn't good or bad, it just is or is not.
Programming is interesting because of the human interface. The program will do exactly what the axioms and rules of inference within the program make it do; the frustration comes when what it does is not what we want. A program can be bad, but not because of the logic. It can be more or less complex, take up more or less CPU capacity, or take longer to run, but that is normative because of something that exists outside of the logic of the system - a human who is impatient, or has decided that fewer lines of code are "better."
Here's the irony, at least to me. Theory is less important in programming because normativity plays such a small role in what a programmer does. Theory is important in law because we need to continue to test the result of our exercises in pragmatics against something else - ethics or morality or something - and that something pulls theory far closer to the surface of what we do every day. Conversely, we can make a pragmatic justification for pure theory in mathematics or science because it is a bottomless well the pragmatic use of which may come some time in the future. Is there really any analog in "pure theory" of law (with apologies to Hans Kelsen)? Can our "research" as legal academics lead to a previously undiscovered normative "light bulb" going on?
May 13, 2007
Ten Observations on the Road from New Orleans to Boston
I have not posted anything for a couple days, as we have been driving from New Orleans to Boston. First, a happy Mother's Day to all mothers, children of mothers, husbands and partners of mothers, and mothers of mothers.
1. The first night, we wanted to stop in Roanoke, but the Virginia Tech commencement is this weekend and the hotels were full for a couple hundred miles in each direction. We ended up in Lexington, Virginia, home of the Virginia Military Institute and Washington & Lee, and where you cannot get a New York Times until the bookstore opens at 8:00 a.m.
2. Cracker Barrel provides one of those peg puzzles on each table (a triangle - you jump the pegs). The instructions said you were dumb as a rock if you didn't get below three. I was dumb as a rock. Repeatedly.
5. Rick Reilly's Shanks for Nothing, the sequel to Missing Links (one of the funniest books I have ever read), is not nearly as good as its predecessor (he is rushing his swing), but it is still a very good "book on tape" for the road.
6. Nobody called while my test was being administered (I think we were in Chattanooga by then). That was a relief.
7. I highly recommend the cooked, not instant packaged, oatmeal at the Residence Inn by Marriott.
8. We pulled into Cambridge (where we bought a house this past January) on Saturday morning, and did the first important errands - The Home Depot in Watertown, and signing up for an athletic club.
9. Our house is off Porter Square, and it's about a 30 minute walk to Harvard Square, where we had dinner. On the way home we were treated to the Zombie March, which had started in Davis Square and was heading down Mass Ave.
10. This morning we walked all the way from the house into downtown Boston, where we encountered the Public Garden tulips in full bloom, and the Duckling Day Parade in progress.