May 22, 2007
Another Unfit Judge
The Alaska Supreme Court recently censured a judge of the District Court for the State of Alaska based on a stipulation that the judge had (1) pre-signed bail orders and made the documents available to prosecutors to fill in the blanks; (2) allowed speedy trial times to lapse, resulting in dismissals of "a significant number of criminal cases;" (3) engaged in improper ex parte communications and gave preferential treatment to a defendant in a case where he should have recused himself; and (4) made inappropriate sexual comments to female court employees in the workplace.
The judge had vacated his judicial office and agreed not to seek or hold any such position in the future. The matter can be revived if he does seek such office. The written censure was deemed sufficient -- he does not need to personally appear to have the censure administered. (Mike Frisch)
The South Shall Rise Again!
South Carolina recently entered an order reinstating the law license of one Robert E. Lee. There is no discussion of the underlying misconduct, which presumably did not involve armed insurrection against the United States. (Mike Frisch)
The U. S. Supreme Court decided a case yesterday that reversed a judgment of the Sixth Circuit that had dismissed an appeal for lack of counsel. The parents of a child with autism spectrum disorder had worked for years with the Parma Ohio schools to develop an individualized education. The question presented in the case was "whether parents...may proceed in court unrepresented by counsel though they are not trained and licensed as attorneys." The court majority held that the rights conferred by the Individuals with Disabilities Education Act ("IDEA") are "enforceable rights at the administrative stage, and it would be inconsistent with the statutory scheme to bar [the parents] from continuing to assert these rights in federal court." Significantly, the court declined to consider the broader questions relating to the rights of parents to litigate their child's claims pro se. Justice Scalia, joined by Justice Thomas, dissented.
The broader question of the extent to which a non-lawyer can proceed on behalf of another is an interesting and highly practical one. It would have been useful for the court to opine on that issue. (Mike Frisch)
What is the New York Times Rule?
Posted by Jeff Lipshaw
My MoneyLaw co-blogger Jeff Harrison has a riff on Attorney General Gonzales, but what was more interesting was his take on the New York Times rule, as well as the attribution of its source. His interpretation of it recasts what is widely considered to be a nice intuitive test of ethics as a source of cover-up and evasion. I have never run into anybody who uses Jeff's version: "don't write anything you wouldn't want published in the New York Times."
The New York Times rule (also known as the "Front Page of the Newspaper" Test) should properly be stated, in its broadest sense, as "don't do anything you wouldn't want published on the front page of the New York Times." That's a hard standard in the business world, because even there we consider some of our physical acts and speech acts to be public and some to be private. And there is a place, I think, even
in that environment for private acts that in themselves might be embarrassing or half-baked or even wrong, but which are not normatively or legally actionable as long as they are not public (I am glad there is no "YouTube" of my initial reaction, in the privacy of our office, to some events, say, like getting sued by a competitor in what I thought was a baseless, bad faith attempt to leverage us. I was certainly using words and allusions that I would not want attributed to me on the front page of a newspaper.)
Having said that, the distinction between private and public is a matter of degree, and so if you say it in a forum where you are not absolutely sure it's private (a conference of the Supreme Court justices? a meeting between lawyer and client? off the record on deep background between source and reporter? a corporate board room? an employee performance evaluation? pillow talk between husband and wife?) you are subject to the Sicilian maxim that a secret is only that which nobody else knows. So when you are in a board meeting, or an office hallway, you need to think about what you are doing, not just what you are writing. (For further evidence of this, see the Sullivan & Cromwell "gay bashing" case - an instance where the NYT rule was allegedly violated by abusive verbal words and action, not writing.)
And finally, writing conveys a sense of formality and completeness that most ordinary speech does not (but contrast highly prepared, highly public, or highly formal verbal speech). Most of us don't go through life as though every verbal comment is to be transcribed, and dissected and analyzed and read back to us by way of instrumental argumentation, particularly when we have opponents, competitors, or even enemies. (See Habermas on communicative action.) That's the danger of e-mail or blogging or chatboards, which have the effect of writing, even though they are used as verbal speech.
Finally, why "big law firms"? Is there empirical MoneyLaw-worthy evidence that big law firms are more dishonest than small law firms? Than postal employees? Than mathematics professors? Waste haulers? Than mom and pop? Do lawyers in small firms more often waive privilege on behalf of their clients? Not "woodshed" their witnesses before trial?
* Poster courtesy of AllPosters.com. Click on it for ordering information.
May 21, 2007
The Texas Board of Disciplinary Appeals remanded a case that merits some scrutiny. The attorney had been charged with violations in three client-related matters. The grievance commission panel consisted of four lawyers and two public members. It appears that a determination was made, come hell or high water, to finish in a day. After the bar had presented its case, the accused attorney sought a continuance, which was opposed by bar counsel, in order to make child care arrangements when the case resumed in the evening. The panel reconvened, but had lost an attorney and public members (and a quorum) by 8 pm. The accused again sought a continuance at around 11:45 pm (including a plea for 15 minutes to have another lawyer show up to help him plead mitigation). The bar counsel opposed giving him the 15 minutes! The grievance panel found misconduct and suspended the attorney for 18 months followed by 42 months probation.
The board held that the loss of a quorum rendered the disciplinary decision void and sent the case back for a new (and hopefully more sensibly conducted) hearing. I can only wonder what was really going on in this case, but it surely delayed resolution of the charges and ill-served the interests of both the lawyer and the public. (Mike Frisch)
Paul Virgo, former longtime prosecutor in the California bar disciplinary system, once remarked that no subject is as fascinating to the practicing bar as the arcane issues relating to the enforcement of attorney's liens. It is one of those pocketbook issues that inconveniently sometimes rubs up against the fiduciary requirements of ethical practice. The Nevada Supreme Court recently held that the lien cannot be enforced against property awarded in a divorce decree that is exempt from execution by a creditor. Further, the duty owed to the client trumps any obligation to a third party provider of services (an expert retainer by contract to render opinions). Thus, the expert's bill cannot be paid out of funds held by the attorney pursuant to a claimed lien. (Mike Frisch)
May 20, 2007
Grading Procrastination, Part VII: A Birthday Contemplation
Posted by Jeff Lipshaw
One of the really interesting things about having a second career is listening to young parents who are my professional contemporaries, like Christine Hurt, mull issues in child-rearing. Christine has a review of Shrek the Third over at Conglomerate. (Full disclosure: this post has nothing to do with the legal profession, other than that lawyers have children and generally seem to love them just like other human beings do theirs. I just finished Question 1 of the exam - 45 points out of 180, so I'm 25% of the way home - but it takes a lot of psychic energy to get ready for the second question.)
The reason for noting Christine's posts on children is that our youngest son, James, turned 18 today (that's James at left with his mom), and I started thinking about taking our kids to see movies (see below). In commemoration of the milestone, I started to write a post about best and worst child-rearing in twenty-three years (come this June 5) of parenthood, but then decided I couldn't do justice to the richness of the experience in a blog post.
One of the things I started to do, now that the children are adults and all seem happy, well-balanced, and productive (and not a one is going to law school, or has any intention of doing so), was a public declaration of things that I did only for them, and hated every minute:
* I have vague memories of sitting through Care Bears movies, Berenstain Bears movies (I think), Teenage Mutant Ninja Turtles movies. The movies were really awful, but I was good about falling asleep, so it wasn't so bad.
* Taking the boys to Indian Guides camp for the weekend thing. Freezing. Boring. Stupid names. Walking to the latrine from the bunkhouse when it was ten degrees below zero.
* Reading Richard Scarry books. I believe Richard Scarry accounts for 90% of all ADD.
* Middle school parent-teacher conferences. A mass of "appointments" in the school gym. Teachers had to look up your kid's name in the gradebook. No more elementary school love.
* Early Saturday morning YMCA swim meets. Four hours of sauna for thirty seconds of action.
There are more of these (most school projects that required parental involvement; any day I was "required" to attend Sunday School with them), but that's enough for now. But this is where I started to think the whole idea of the post was stupid - when I wanted to write down the good things, because they aren't really the best memories, just a few of the thousands of good ones:
+ We went through a string of really wonderful Disney movies I will always associate with my kids growing up: Beauty and the Beast, Lion King, Aladdin, The Hunchback of Notre Dame (though I could have done without Hakuna Matata).
+ The first time we all skied together.
+ The three children singing most of the libretto of Les Miz in the back seat of the car on trips to northern Michigan.
+ The canoe outing Matt and I took upon his "graduation" from Quarton School in Birmingham.
+ Eating take-away sushi and watching the strange BBC television shows when Arielle, James, and I rented a flat for a week in Mayfair while Arielle was doing her year at Oxford.
+ Playing tackle football with the boys in fifteen inches of snow in the backyard.
+ Arielle (age 12 or so, I think) and I causing a scene watching a community theater production of Noises Off because we were laughing so hard we fell off our seats.
And finally, the stupidest parental image I can come up with on short notice. Both boys were decent (not great) driveway roller blade hockey players (Matt the best, I think, because we made him take ice skating lessons early on). We had a great driveway apron in Indianapolis, and because the boys wanted me to play with them, I would lace up roller blades, put on wrist guards, elbow pads, mouthguard, helmet, and knee pads, and hope to God I didn't suffer a closed head injury.
The Misguided Law of Gasoline: A Prius Owner Speaks
Posted by Jeff Lipshaw
The New York Times had an article (remarkably balanced, by the way) this morning about some of the reactions in Congress to gasoline prices approaching $4.00 per gallon. Here is the interesting part:
Many Democrats, and a much smaller number of Republicans, remain convinced that there is a villain.
One freshman senator — Bob Casey, Democrat of Pennsylvania — has introduced bills to tax the “excess profits” of oil companies when oil sells for more than $50 a barrel.
On Wednesday, the Joint Economic Committee will hold a hearing titled “Breaking Up the Oil Companies” and ask whether consumers have been harmed by industry megamergers like those of Exxon and Mobil, Chevron and Texaco, or Conoco and Phillips. “It’s just an instinct, but my instinct is that the lack of real competition in different phases of the oil business could be causing longer-term problems,” said Senator Charles E. Schumer, Democrat of New York and chairman of the joint committee.
On Tuesday, the House Energy and Commerce subcommittee on investigations plans a hearing into evidence of possible price gouging and other market manipulation by oil companies.
The chairman of that hearing will be Representative Bart Stupak, Democrat of Michigan, who has introduced a bill that would define price gouging as a price that is “unconscionably excessive” or that “indicates the seller is taking unfair advantage of unusual market conditions.”
Ms. Cantwell, on the Senate side, has introduced a similar bill. But the two bills suffer from vague language that would probably prove agonizingly difficult to enforce. Both bills would instruct federal investigators to look for a “gross disparity” between prices before and after a supply emergency, without defining “gross”; or prices that represent “unfair leverage or unconscionable means” by a fuel supplier during an emergency, without defining “unfair” or “unconscionable.”
It goes without saying that gasoline retailers and oil companies will seek to maximize their profit, which usually means charging the highest price markets can bear.
But is that price gouging?
I don't often opine on matters of politics, but as one who cut his legal teeth on the Mandatory Petroleum Allocation Regulations of the Emergency Petroleum Allocation Act of 1973, I just want to put in my two cents that this legislative response is really stupid. I am neither Democrat nor Republican (which allows to me to gag on this as well as the idiocy in the Justice Department). One of my students raised an objection to the posting of class notes (which I did in a small case on the agreement that students would attend, but to counter the laptop stenography problem) on the theory that it was unfair to the student who attended. That's how I feel about this legislation. Our family has four drivers and owns the following vehicles with the indicated MPG (city/highway): 2003 Prius (52/45); 2004 Prius (60/51); 2006 Mazda 3 (26/34); 2006 Subaru Outback (22/28). We deliberately bought a house in our new city within walking distance of the mass transit. We are hardly anti-consumerism; we just don't get off on big gas guzzling cars (though in fairness, gas guzzlers don't guzzle nearly as much as they used to). But I think we were out ahead of the curve on responding to the issue of energy independence. Now all the guzzlers are going to get bailed out? Boo.
Gas prices need to go to their market level to encourage the correct market response. It seems to me it makes a hell of lot more sense to deal with shorter term dislocations by subsidy to, or enhanced public transportation for, low income people or whatever than to create artificial demand for gasoline by outlawing "price gouging" (whatever the hell that is).
Of course, that would mean having a coherent and moderate national energy policy which, of course, the Bush administration and the Congress out to be able to hammer out in a couple weeks. Right. Why is Al Gore sounding better to me all the time?