June 2, 2007
Carolyn Elefant has noted that, for solos at least, even a brief suspension may be a professional death sentence. At least, it is a major interruption. The Utah Supreme Court just decided a case that considers the question of the circumstances in which probation is deemed appropriate in lieu of suspension. This choice of sanction is hugely important in terms of career planning. In response to the request of disciplinary counsel for clear guidelines on the use of probation, the court consolidated two cases and declined to provide the requested guidance: "We are satisfied--indeed pleased--with the discretion currently being exercised by district courts in sanctioning attorneys for misconduct." The court declined to specify cases where the misconduct is such that probation cannot be considered, preferring a more flexible approach. (Mike Frisch)
A judge who discouraged a pro se defendant from consulting with counsel was the subject of a judicial discipline complaint. The Rhode Island Supreme Court rejected a proposed censure and "remanded the papers" to the Commission on Judicial Tenure and Discipline, noting that the judge had retired after 20 years of otherwise distinguished service and that the improper conduct did not rise to the level of coercion. (Mike Frisch)
Lawyer As Witness
The Rhode Island Supreme Court affirmed a criminal conviction in a case where the defense attorney identified himself as a potential witness during pretrial discovery. The lawyer proferred that he had had a telephone discussion with the victim, who made statements helpful to the defense. The lawyer offered to have other counsel examine him when he testified. The trial court held (erroneously) that an insufficient foundation had been laid for the lawyer's testimony. The court affirmed on other grounds, holding that Rule 3.7 precluded the lawyer from serving as both counsel and witness. The issue had surfaced in advance of trial and the lawyer chose to remain as counsel in the case. (Mike Frisch)
June 1, 2007
CLE Not Required
An attorney who was suspended by the Supreme Court of Wisconsin for 60 days will not be required to make "a satifactory showing to the [Office of Lawyer Regulation] that he has obtained appropriate CLE credits in the area of office management and ethics." The court rejected a referee recommendation for such a condition, noting that it generally has not imposed reinstatement conditions in cases where a suspension for less than six months is imposed. Further, "the recommended condition is vague and does not appear to be tied to the misconduct...[and] does not indicate how many credits must be obtained and what subjects the credits should address." (Mike Frisch)
May 31, 2007
Hit The Road, Jack
Most jurisdictions do not impose disbarment without possibility of reinstatement on a showing of present fitness to practice. The Ohio Supreme Court yesterday entered an order permanently disbarring an attorney as a result of a criminal conviction. The conduct involved "staging three burglaries at a former residence and in then submitting false insurance claims totalling $126,000." Aggravating factors included prior discipline and "refusal to acknowledge the wrongful nature of his conduct." (Mike Frisch)
Another Prohibited Transaction
The Iowa Supreme Court indefinitely suspended a lawyer without possibility of reinstatement for three months in a case where the attorney had solicited business (Iowa treats these offenses as strictly as any jurisdiction-- there is no "purpose of pecuniary gain" requirement to make the solicitation improper), engaged in conduct that adversely reflected on fitness ("no attorney should assert loose, unsupported claims for attorney's fees as a means to avoid contractual obligations"), engaged in conflicts of interest and improperly acquired a proprietary interest in a cause of action. The court found that the lawyer had "inserted himself into [the client's] litigation and agreed to represent [the client] in the litigation as part of the same transaction... the [acquiring interest prohibition] captures conduct where a lawyer is both a litigator for a client in litigation and a party to the litigation." The court noted that the attorney "is known as a bright and innovative advocate by other lawyers in his community." (MIke Frisch)
The Q Test for Lying
Link through Gordon Smith's post at Conglomerate. I too am a lousy liar.
Blogging Defendant Unmasked
From Howard Bashman's How Appealing blog comes a story in today's Boston Globe about a defendant doctor in a medical malpractice trial who abruptly agreed to settle the case after it was revealed on cross-examination that he had been posting blogs under the name "Flea" about the case and the lawyers. Let the blogger beware! (Mike Frisch)
Reprimand For DUI
A judge of the Marion Superior Court who was arrested and convicted for driving under the influence of alcohol was reprimanded today by the Indiana Supreme Court. The blood alcohol concentration level at the time of arrest was .15. (Mike Frisch)
A subcommittee of the Virginia State Bar imposed an agreed reprimand on an attorney who had filed a late response in a divorce case. The divorce was granted as uncontested as a result of the late filing. The lawyer then paid the client $40,000 "in exchange for an executed release from any malpractice liability from [the] falure to timely file..." The release further provided that the payment would be returned in the client prevailed on appeal. The lawyer then neglected the appeal. The parties in the disciplinary case agreed that the lawyer had failed to act with diligence and that the release violated Rule 1.8(a) (prohiibited business transaction). (Mike Frisch)
Failure To Respond Results In Disbarment
The Nebraska Supreme Court has little tolerance for lawyers who fail to adhere to the ethical obligation of an attorney accused of misconduct to respond to the allegations and participate in the proceedings. The court disbarred an attorney who was the subject of two complaints, one involving entrusted funds, and did not answer the charges or attend the hearing. The charges were established by judgment on the pleadings and disbarment was ordered. The attorney had been admitted in 2001--a short career at the bar.
Other jurisdictions--most notably D.C.-- are much more understanding of such studied indifference. (Mike Frisch)
May 30, 2007
Carle on Power in Lawyer Ethics Deliberations: Is "Clients-vs.-Justice" a False Dichotomy?
Posted by Alan Childress
Susan Carle (American Univ.) has posted to SSRN her article, "Power as a Factor in Lawyers' Ethical Deliberation." It is also in Hofstra Law Review, vol. 35, no. 1 (Fall 2006). Here is her abstract:
A fundamental disagreement among legal ethics scholars concerns the difference between client-centered and justice-centered approaches to lawyers' ethical obligations. Advocates of client-centered approaches put lawyers' duty to the client first. Justice-centered theorists critique the elevation of the client's interests over other important concerns lawyers affect through the work they do on behalf of clients. Scholars who adopt justice-centered approaches argue that lawyers' ethical obligations should be analyzed with a paramount focus on achieving justice.
Legal ethicists often view these two approaches as inconsistent with each other, but I argue in this Article that they are not necessarily so. Building on the growing awareness of the need for context-specific legal ethics analysis, I argue that a key factor responsible for the disagreement between client- and justice-centered legal ethics scholars is their focus on different practice settings, where different ethics concerns have priority. Ethicists concerned about the immense power of corporate clients to do harm to fragile structures of public regulatory law focus on lawyers' duties to concern themselves with the underlying justice of their representations, while ethicists immersed in practice settings involving the representation of relatively powerless clients or interests, such as in criminal defense and poverty law practice, are adamant about the need for client-centeredness. I argue that we can make much better sense of the debate between client- and justice-centered ethicists if we appreciate the importance of context in setting ethics priorities.
The challenge then becomes identifying the factors that vary with practice setting and account for the different emphases of justice- and client-centered approaches. I suggest that a key factor that accounts for ethicists' varying views about the appropriate balance to be struck between client- and justice-centeredness is the relative power of the lawyer's client in relation to other interests affected by the representation. Of course, power is not, and should not be, the only factor taken into account in calibrating ethics analysis to context, but it is an important one, which deserves further attention in legal ethics scholarship.
I next propose a normative standard for how relative client power should be taken into consideration in lawyers' ethical deliberations. In representations involving obvious and substantial power imbalances, lawyers representing less powerful interests should adhere to a client-centered, zealous advocacy approach, whereas lawyers for powerful clients should temper their representations with an eye to protecting consideration of the interests of the less powerful. I identify several reasons why considerations based on relative client power should factor into lawyers' ethical deliberations in this way. These reasons include the representation reinforcement function of zealous client advocacy on behalf of the under-represented interests and the fact that the liberal underpinnings of client-centered legal ethics support the protection of the dignity of natural individuals, but not aggressive advocacy for the interests of institutions that are mere creations of law. Factoring client power into lawyers' ethics analysis also avoids the powerful criticisms leveled against justice-centered models on grounds that these approaches call for the paternalistic substitution of lawyers' socially situated judgments about morality and justice on clients who are least able to resist such lawyer domination. Finally, consideration of client power provides an ethics norm that pushes back most directly against the moral hazards produced by self-interest in varying practice contexts. In the context of representing powerful clients, lawyers' incentive is to do too much for their clients; in the context of clients with relatively little power, lawyers' incentive is to do too little. An ethics norm that calls on lawyers to temper their advocacy when representing powerful clients but to pursue client-centeredness when representing clients with little power asks lawyers to correct for the specific pressures faced in their practice locations.
To test my theory, I apply a power-based ethics model to a series of hypotheticals drawn from the work of ethicists in the justice- and client-centered traditions. I show how considering client power in resolving difficult ethical dilemmas in situations of obvious and substantial power imbalance can help produce ethical judgments that are most appropriately tailored to varying practice contexts.
May 30, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack
Pearce on Value-Less Discourse in Traditional Legal Ethics
Posted by Alan Childress
Russell G. Pearce (Fordham) has posted to SSRN his controversial article, "The Legal Profession as a Blue State: Reflections on Public Philosophy, Jurisprudence, and Legal Ethics." It is also in 75 Fordham Law Review 1339 (2006). Here is the abstract:
What do lawyers and Blue State voters have in common? They subscribe to the view that values do not belong in public discourse and that, as Ronald Dworkin put it, “no person or group has the right deliberately to impose personal ethical values on anyone else.” This view animates both the legal profession's prevailing “hired gun” perspective and the principal political approach of voters who supported the Democratic presidential candidate in the 2000 and 2004 elections. This Essay suggests that this confluence is no accident, for both are grounded in the same public philosophy.
The Essay traces the history of how dominant public philosophies have shaped both jurisprudence and legal ethics. Prior to the Civil War, the republican combination of natural law and empiricism prescribed a distrust of majority rule. Within this framework, a governing class of virtuous lawyers devoted to the public good would protect rule of law and individual rights. Following the Civil War, elite public philosophy began a shift that enthroned empiricism and discarded natural law. From this period through the 1960s, commentators progressively narrowed conceptions of both the capability of lawyers and their governing class role. Eventually, the lawyer's role diminished to that of an “amoral technician."
In spite of this historical trend, lawyers continue to serve as a de facto governing class both through their disproportionate role in formal governance and their day-to-day work as intermediaries between the law and the people. The Essay concludes with a call for lawyers to “revive their capacity as a political leadership class,” even in a public sphere “inevitably full of value conflict and debate.” This would require lawyers both to accept responsibility for their own values and to “develop the ability to promote dialogue among and between people of different values.”
May 29, 2007
Grades, Participation, and Analogic Reasoning
Posted by Jeff Lipshaw
Grading at Tulane is completely blind. I taught four classes with an aggregate total of over 180 students and among non-LLM students I could never tell from the exam paper itself who was writing the exam. So it is always interesting to submit the final grades and then get back the translation sheet to find out who the numbers represent.
1. I just finished up and submitted grades for a large class. Of the reasonable number of full A grades, all but one were active contributors in the class discussion. On the other hand, I could only associate names with faces for 25% of the combined C and C- grades.
2. Of the A grade recipients whose names I could immediately associate with a face (i.e., all but one), most were not at all surprising given the cogency of class comments.
3. I did not take attendance, so I will never know if there was a correlation between attendance and grade, but I am thinking that the reason I could not remember some of the lower grade faces is that they didn't come very much.
4. My wife (an alumna of the Michigan Business School) passed along this link to a study purporting to rebut the "Jack Welch - GE" forced ranking system of evaluating employees. Here's a quote:
"The use of rankings to scale employee performance relative to that of their peers, instead of using predetermined goals, may negatively affect employees' willingness to maximize joint gains that will benefit the organization," said Stephen Garcia, adjunct assistant professor of management and organizations at the Ross School and assistant professor at the Ford School of Public Policy.
"Individuals will care less about performing better on a given task and will, instead, shift their focus to performing relatively better on a scale comparison---in other words, being surpassed in rank."
See Andy Perlman's post over at Legal Ethics Forum on whether interpersonal skills should be a factor in law school admissions. I sense there is a connection, but this is just a blog, so I will merely juxtapose rather than analyze.
5. In a new essay, "Law and Philosophy at Odds," Larry Alexander and Emily Sherwin pretty well put aside the possibility of any meaningful legal reasoning by analogy from case to case. As readers know, I have been reading Douglas Hofstadter's new book I am a Strange Loop, which ponders the essence of the self and consciousness, and finds the power to analogize at the very heart of thinking itself (the entry "analogies, serious examples of" runs over a full page in the index). My wife and I discussed this just now walking the dogs, although we digressed onto the subject of the old "analogy" questions on the SATs. Did those analogies actually test reasoning power, as though there is in fact a better analogy, or simply, as my wife contended, vocabulary, i.e., if you actually knew what all the words meant the analogy part was easy? So I posed this one: "Hockey is to goalie as baseball is to (A) pitcher, (B) catcher, (C) backstop, (D) batter." I could actually make arguments that each one is correct. Is one objectively better than the other, in the way that deductive reasoning from premises to conclusions either is or is not? Or is it more cultural, and "Family Feud"-like (recall Richard Dawson: "survey says.....!") [As usual in these discussions on the dog walks, it is not Venus and Mars, but terra firma (her) and outer space (me), so this issue was not resolved. She said the SATs would never have one like the hockey/baseball example; I said I remembered them all being like that.]
6. All of which is to say that it's probably the case that we are testing conformity, not creativity, on law school exams, but it's likely that conformity wins over creativity in the real world. Somebody just commented below on an earlier post:
That is why law school grading is broken and badly needs to be fixed. I love legal theory, unfortunately one time pressured exam at the end of the semester allows me almost zero opportunity to show that to my Profs. It also forces students to care exclusively about the end game rather than appreciating all that legal scholarship has to offer. The fact that you are met with blank stares and questions like, "will this be on the exam?" is sad in a doctoral program. This is all very fixable and would only require giving students the proper incentives.
I think that is a heartfelt and sincere sentiment, but I'm not sure I agree with its import. I wasn't looking for creativity on the exam, but nobody wrote an exam that forced me to say "wow, that is just a completely different and unique way of looking at the world of secured transactions or sales, and even though it doesn't really answer any of the doctrinal questions, I should throw out the answer key and give it an A." And I think that's the way most people expect it; they're here to learn the doctrine, and how lawyers think and operate, and the ones who like theory self-select into the appropriate upper-level seminars.
7. More on thinking in analogies to come. I hope.
Contempt Leads To Jail Time
A recent post mentioned that one potential consequence of continuing to practice after suspension or disbarment (at least for misconduct as opposed to an administrative suspension for failure to keep current on bar dues) is criminal contempt. Linked here is the current Washington Lawyer Bar Counsel page that makes the point in greater detail and with specific reference to the District of Columbia cases that have resulted in a period of incarceration. (Mike Frisch)
May 28, 2007
Thoughts on Law, Complexity, and Change While Walking Around Ann Arbor on Memorial Day
Posted by Jeff Lipshaw
Our peripatetic summer of moving around continues. I hauled a carload of stuff up to Michigan, acted once again as secretary to the annual meeting of our homeowners' association, and then came down to Ann Arbor to meet my son and attend last night's forgettable game between the Detroit Tigers and the Cleveland Indians (digression: Matt asked, and I cannot answer, how the Cleveland Indians' logo survives in this day and age. He asked: "What if the team were the New York Jews and the logo was an anti-semitic caricature?")
While Matt studied today, I took a long walk around my alma mater, thinking about the changes since the last of my three residential stays here eight years ago (once as student; once as young married; once as grown-up). Construction is everywhere: a new dormitory (North Quad on the site of what used to be the Frieze Building - appropriately named if you were walking there from the other side of campus for an eight a.m. class in mid-winter) and a refurbished and expanded one (Mosher-Jordan); reconstruction of the Mott Childrens' Hospital; major additions to the art and archaeology museums; completely new business school and public health school buildings. The Gerald R. Ford School of Public Policy is finished, as is the recently improvement to the old part of the law school building along State Street (and I understand there is to be a major addition with new faculty offices soon - Bruce Frier showed me the drawing a couple years ago). The Nichols Arboretum has been spruced up, with significant reclamation of the river bank of the Huron River. Something was going on in front of the undergraduate library (in the older version of which I spent three hours ogling for every hour of studying). There is an entire life sciences complex across the street from my freshman dorm (Alice Lloyd) where, as I recall, there were a power plant and facilities services. All of this with Michigan's economy significantly sucking wind, as I was reminded over and over again this weekend.
But, I suppose as it should be, the institution is so large that even with all this change, it still seems incremental in comparison, and the place is still fundamentally the one I remember from over thirty years ago. (And student living is still as squalid as I remember it.)
Looking at the contractors' signs - many of them clients from when I practiced around here - I wondered how much dispute resolution and litigation would arise out of the work. Here's an empirical question: however you want to define major construction, what percentage of projects require arbitration or litigation at their conclusion? My visceral reaction is that it is an overwhelming majority, and what that says to me is that the so-called complete contract really is a flight of the economic imagination. Whatever we can put in language is just too simple a model for the mind-bending complexity of a major project.
ABA In Chicago
The 33rd annual ABA National Conference on Professional Responsibility will take place in Chicago this week. Here is the link to the schedule. A number of panels will address topics of interest. One session will deal with overbearing partners; another wiill consider the ethics of lawyers in an organizational setting. There will also be a panel that will consider the ethical issues of lawyers who act as expert witnesses. A fourth panel will feature a retrospective on the famous New York "buried bodies" case with Frank H. Armani, one of the lawyers confronted with the ethical issue, Monroe Freedman and Thomas Morgan participating. (Mike Frisch)
The Attorney Grievance Board of Michigan ordered a reprimand of an attorney who belittled opposing counsel during the course of 14 depostions over a period of several years. Highlights of the "insulting and demeaning language" are contained in the appendix to the opinion. The Board increased the proposed sanction of reprimand by adding a two-year period of probation but rejected the Grievance Administrator's suspension recommendation. Michigan lawyers are warned that the presumptive sanction for such behavior in future cases will be suspension. (Mike Frisch)
Florida Bar on Immigration UPL/Lobbying Issues
The Florida Bar has addressed the problem of non-lawyers providing assistance to immigration clients. Non-lawyers will not engage in unauthorized practice by reviewing forms with spellcheck and other computer functions for obvious typographical errors. Any substantive communications on the documents will cross the line. The Bar has also provided guidance on ethics issues that arise under legislation that impacts on lawyers who engage in lobbying activities.(Mike Frisch)
May 27, 2007
The Grapes Of Wrath
A Hearing Panel of the Illinois ARDC found that an attorney engaged in misconduct in connection with his representation of the widow of John Steinbeck's son. The widow's concern's related to the withholding of royalty payments from her by the estate's literary agents. At their initial meeting, the attorney told Mrs. Steinbeck that he was the "perfect lawyer" to handle the case, that he had "connections in the literary world" and that he was "expert in extracting information in nefarious ways." The attorney had provided a series of false assurances over a period of two years that he had initiated bar discipline proceedings in New York against the agents based on the widow's concerns. The panel recommends a suspension for six-months and until further court order. (Mike Frisch)