June 8, 2007
Only Bar Counsel Can Prosecute Ethics Cases
A dissatisfied complainant has no private cause of action after Bar Counsel dismisses an ethics complaint, according to a holding of the Massachusetts Supreme Judicial Court. The complaint against former counsel had been investigated and, after disposition, reviewed by a Board of Bar Overseers member. The client then filed a civil suit to sanction the attorney. The court affirmed the dismissal of the suit, holding that there is no basis on which a private citizen can enforce disciplinary authority against an attorney. (Mike Frisch)
Four Strikes, Almost Out
An attorney who had his fifth run in with the disciplinary system was indefinitely suspended by the Court of Appeals of Maryland. The attorney "maintains a high volume practice concentrating on criminal, drunk driving and other motor vehicle violations" and neglected three client cases. The court found "an inexcusable lack of concern on [the attorney's] part for the welfare of his clients, an unwillingness, after four warnings, to make necessary improvements to his office management." He must wait a year to apply for readmission. A dissent would disbar: "If disbarment is not warranted in this case for these types of cases, with a respondent with this history, it will never be warranted." (Mike Frisch)
Without fanfare, the D.C. Court of Appeals yesterday disbarred Sandy Berger on consent. The matter must have moved promptly, as the Board report recommending that the court accept his consent is not yet available on the D.C. Bar's web site. (Mike Frisch)
Second Life: Does Virtual Reality Need a Lawyer?
Posted by Jeff Lipshaw
Oh my. More to come on this. My former Tulane co-visitor Eric Dannenmaier (IU-Indianapolis, left) and I attended an Indianapolis Indians baseball game last night. Eric is teaching property this coming fall, and was in the throes of syllabus-creation. But he told me about this website, Second Life, that is intended to be an online virtual community. He's interested in the property aspect of it, and knew it would stoke my epistemological and ontological juices. It's a philosopher's living thought experiment.
Here's the Washington Post article.
More on Law Firm Branding
Posted by Jeff Lipshaw
There's an article in this morning's New York Times about a lawyer-entrepreneur trying to create a worldwide network of small law firms. Here's the quote to the same point from my anecdote about my own experience as a young litigator:
"When I carried a Sullivan & Cromwell litigation bag and it said S&C on it, it was a reputable [sic] presumption that you were an amazing lawyer and brilliant. . . . And I am hoping that the [International Network of Boutique Law Firms] will similarly create a reputable [sic] presumption for all I.N.B.L.F.- approved attorneys."
Based on my own admittedly casual experience, I am skeptical about the power of organized referral networks, largely because they are inconsistent with the shape of compensation systems in many large law firms. If your compensation is based on your power over a book of business, it is more likely you are going to want to use your own personal networks (so as to increase the likelihood of personal cross-references) over institutional networks.
The Rationale for "Sweetened" Severance Packages at Dow Jones
Posted by Jeff Lipshaw
If you read both the New York Times and the Wall Street Journal on a regular basis, you know it's like Michigan-Ohio State, Yankees-Red Sox, or Coke-Pepsi. It's particularly interesting when the two papers are reporting on each other's businesses.
Dow Jones, which owns the WSJ, obviously is in the midst of a "bear hug" from Rupert Murdoch's News Corporation. The NYT reported this morning that Dow Jones had increased the number of managers covered by special severance contracts from 25 to 160 (and reported that in an SEC filing). I have the WSJ here and took a quick look at the "Index to Businesses" and don't see a reference to Dow Jones.
Whether or not it is justified empirically, there is a benign rationale for a board's decision to "sweeten the pot" in the face of a potential take-over, particularly here where the sweetening appears to be breadth of coverage rather than a pure money grab. You need to have been in a large business going through acquisition discussions to appreciate the level of distraction from the business itself. The board's perception will be that without some kind of incentive to stay through (and beyond) the consummation of a deal, managers are inclined to look for security, and are ripe for the plucking by competitors. The perception may or may not be justified, but it seems to me to be supportable under the business judgment rule. If there were to be an exodus, it hurts the value of a business, either in the long run if the deal does not go through, or in the short run to the purchaser.
Case in point. When I was with Great Lakes, we were recruiting an executive then with Honeywell. At the time, Honeywell was still to be acquired by General Electric (recall that the deal fell through as a result of merger enforcement in the EU). The executive's long term compensation, triggered either by longevity at Honeywell or by a deal with GE, made it impractical for him to consider leaving, and we didn't get him.
I know, in the present political climate, it is easy to be cynical about executive compensation "'intended to enhance the company's ability to retain and attract management-level employees' and to help them focus on their jobs," but sometimes a cigar is just a cigar.
June 6, 2007
One of the things I like best about bar regulation in Illinois is that after disciplinary charges are filed and served, the full text of the charge is posted on the ARDC web site. This access to public charges is pretty rare and would be treated in some states as a gross violation of the lawyer's reputational rights. Self regulation would be a lot more credible, or at least more transparent, if all information relating to ethics charges was as easily found as in the Land of Lincoln.
Here is an example of a recent charging document. Two lawyers are charged with criminal conduct toward a woman that they met in a club. The lawyers had been on a day-long drinking binge. They left the club at closing time and the woman was outside. They asked for a ride. When she asked "How do I know you're not some kind of weirdos, or something?", one replied "Well, we are lawyers." The conduct alleged thereafter (pled in great detail) recounts a two on one unconsented sexual assault. One lawyer was convicted of second degree reckless endangerment; the other of that same offense and two counts of sexual gratification in public. The convictions were based on conduct that took place in Wisconsin. The Bar Administator charges are based on the convictions as well as the underlying conduct.
After posting the recently-filed disciplinary charges, I remembered that the underlying criminal case was widely reported at the time and that there was criticism of the criminal disposition as unduly lenient. (Mike Frisch)
Massachusetts on Creating Client Relations By Linking an Email To a Website
Posted by Alan Childress
The Massachusetts bar has issued a new advisory opinion on the ethical implications (and duties to potential "clients") of having a website that links to an email address. The story here from Goodwin Procter's Doug Cornelius, a real estate attorney in Boston, from his KM Space Blog. Email sent via the firm's website creates duties of confidentiality different from purely-unsolicited emails, and may even disqualify the firm under conflict of interest rules. Doug recommends a disclaimer.
New Wellpoint CEO is a Woman, But She's Also a Lawyer!
Local news: Wellpoint, whose long-time CEO, Larry Glasscock, is retiring, appointed Angela Braly, its general counsel, as the new CEO. The Wall Street Journal article today rightly focuses on her prominence as a woman and CEO. (One of her first tasks was to deal with what appears to be a case of Men Behaving Badly: the CFO was fired for undisclosed violations of the company's code of conduct, and the only available public evidence suggests he had a very complicated personal life.) I note, of course, that she is a lawyer, and that it is not all that common for GCs to be promoted to CEO (Frank Blake at The Home Depot being a prominent exception). But if there is a place where lawyers are not operating under an occupational disadvantage for the CEO's suite it is the insurance industry, where the product itself is a legal document.
Sokol on the Whole Foods-Wild Oats Deal
Posted by Jeff Lipshaw
Our friend Danny Sokol (Hastie Fellow at Wisconsin; Visiting Professor, Missouri-Columbia) has a quote in this morning's Wall Street Journal on the FTC's decision to challenge the Whole Foods-Wild Oats merger, expressing the same intuitive skepticism about the challenge we felt at the Lipshaw breakfast table: it seems a little surprising. Alene evoked the "George H.W. Bush" regulatory model: "Probably the FTC lawyers have never been in a grocery store." Jeff responded by evoking the advice he used to give his business clients. "FTC staffers are not looking for antitrust truth. They are usually young lawyers looking for notches in their holster that are the ticket to advancement in the FTC or lateral partnerships at big law firms. So don't give them visceral and unfounded ammunition by writing unthoughtful memorandum." [Note to practitioners: merger enforcement lawyers generally have a Pavlovian response and begin salivating uncontrollably when reading the executive summary of the sale memorandum written by the investment bankers for the seller in a deal.]
I practiced or supervised the antitrust side of deal work for many years, and I admit to never quite understanding the relationship between the published merger guidelines and the enforcement decisions in practice. The merger guidelines used to provide (and I assume still do) for the definition of markets based on pricing power - you started with the core product or area, and continued expanding until a hypothetical monopolist in the hypothetical product or geographic market could hold a non-transitory five percent price increase. We never got far enough along, it seems to me, to test that proposition - the deals always seemed to hang on other deal characteristics. For example, is it a "4 to 3" merger or a "3 to 2" merger? Or in the auto industry, very little mattered because the oliogopsonistic purchasers were the best regulators.
Danny Sokol's reaction to this deal seems the right one to me. Regardless of the present state of the market, in which it's probably the case that there is a price premium built into the upscale natural-organic food store over the typical store, where are the barriers to entry if Whole Foods tries to expand the premium? The local Marsh stores in Indianapolis already look like Whole Foods from the spot where you walk in the store until the meat department, at which point it looks like an ordinary grocery store again. Since there are some things even the most organic of us cannot get at Whole Foods or Wild Oats (diet soda, what are known are "water beverages" because they contain flavoring and artificial sweeteners such as Propel or Fruit2O, good croutons, or a broad selection of frozen yogurt, to name a few), an upscale department in a more mundane grocery store would seem to be a competitive advantage.
Hmm. I need to check with some of my friends, like Weil Gotshal merger uber-lawyer Steve Newborn (above right), later today.
June 5, 2007
Critique of I Am a Strange Loop's Central Premise
Posted by Jeff Lipshaw
First, l love this book. There, I've said it. It is deeply personal and idiosyncratic and touching and hopeful. I also think Douglas Hofstadter's image of perception and consciousness is a powerful one: the mind as inordinately complex universal machine capable of considering its own existence. But I have also gotten to the point where Hofstadter's use of the Godelian analogy as a theory of everything does not work for me. In Chapter 20, he creates a dialogue between Strange Loop #641 ("a believer in the ideas of I Am a Strange Loop") and Strange Loop #642 ("a doubter of the ideas of I Am a Strange Loop.") Hofstadter is a close friend of Daniel Dennett, and the cross-influence is apparent here. Hence, he is committed to the idea that consciousness must be subordinate to physical law - there's no transcendental anything. Nevertheless, the complex universal machine that is the human brain has evolved to the point that it is capable of considering itself and creating what seems to be a very real, yet in fact an illusory, "I".
To Hofstadter, the power of Godel's proof is its mapping of meta-arithmetic within arithmetic itself, creating a system in which mathematics can think about itself in the language of mathematics. Moreover, the system is recursive and infinite. And computer language has the capability of being infinite and universal, almost but not quite human. And I don't have any issue with Hofstadter's characterization of the way each "I" may contain parts of another "I." Indeed, SL #642, the skeptic, is a straw man, and is not posing the right questions.
It's clear now that Hofstadter is committed to the idea that physics must trump any notion of Kantian autonomy. We are free only in the same way that chess only seems like a game and not a calculation: it's too complex to fathom all the moves. That's notwithstanding Hofstadter's own contagious energy and sparkle and sense of mystery. But more troubling is that he ignores one of the more significant parts of the analogy to Godel. SL #641, Hofstadter's alter ego, says:
One thing that gives people a sneaking suspicion that something about this "I" notion might be mythical is precisely what you've been troubled about through our discussion - namely, that there seems to be something incompatible between the hard laws of physics and the existence of vague, shadowy things called "I"'s. How could experiencers come to exist in a world where there are just inanimate things moving around? It seems as if perception, sensation, and experience are something extra, above and beyond physics.
But what did we spend much of the book considering? Godel proved, using the logic of Principia Mathematica itself, that there could be a true formula within the formal logical system of PM that was not decidable (i.e., neither the formula nor its negation was provable). Hence, the formal system was not complete; indeed, no consistent formal logic system could be complete, and no formal system could provide proof of its own consistency. To paraphrase Hofstadter, "how could an undecidable but true formula of PM come to exist in a world where, by axiom, true formulas were the result of derivation only by rules of inference from axioms or other provable formulas?" The answer is: we don't know. All we know is that paradox is something that seems to be part of our world, and even if we get everything just about complete and consistent, there's still another turtle at the end of some infinite regress somewhere. Why not transcendental or metaphysical? I'm willing to stay agnostic on the question.
I'm afraid there's nothing new under the sun. Hofstadter says: "[F]or a few people the battle starts to rage: physics versus 'I'. And various escape hatches have been proposed, including the notion that consciousness is a novel kind of quantum phenomenon, or the idea that consciousness resides uniformly in all matter, and so on. My proposal for a truce to end this battle is to see the 'I' as a hallucination perceived by a hallucination, which sounds pretty strange, or perhaps even stranger: the 'I' as a hallucination hallucinated by a hallucination." Therein lies the giveaway. He proposes to end the battle that started when Kant observed there did seem to be an autonomy within the person apart from and able to act upon physical cause, and a fundamental dualism to the way the world is organized that will never be the subject of a truce, all by the nature of reason itself. The Gordian knot is that we have a world in which even formal logic has an unresolvable paradox in its midst. A truce is precisely what we'd get: a cessation of hostilities but no resolution to an unresolvable battle. Unlike SL #642, I'm not all that troubled about whether my "I" exists and does so solely within me. I'm more troubled Professor Hofstadter (who I admire deeply) failed to account for the reality that Godel demonstrated but did not explain the very existence of paradox.
UPDATE: An Aussie by the name of Darby Higgs has let me know that he is collecting commentary on IAASL.
Appeal Not Dismissed
The North Carolina Court of Appeals declined to dismiss a civil appeal despite multiple failures to follow procedural rules governing such appeals. The court majority imposed costs rather than dismissal. A dissent would hold that the sole remedy for failure to adhere to procedural rules is dismissal, qouting from an earlier case suggesting that it is not the court's job to assist a litigant who can't follow procedure. (Mike Frisch)
More on the Process of Legal Reasoning & Gold on the Business Judgment Rule
In a post a few days ago, still hung over from grading, I made an off-hand and slightly, I think, inscrutable reference to more to come on analogical reasoning. It's in part what I am spending time reading this summer (going back and forth with very preliminary class prep for Securities Regulation) when I am not packing boxes, trying to do the Cesar Millan thing with our dog (Prozac is not a complete solution), or running unused household chemicals to the Indianapolis Tox Drop.
My reading and writing is iterative. If I think I will lose a thought, I will write a page or a paragraph, even though it may not link well or at all to the general thrust, and many times I figure out later that there was a connection. So it happened that I saw an article by Andrew Gold (DePaul, left) that attempts a deep dive into the process of reasoning from law to decision in a corner of the real world with which I have a more than passing familiarity, and I've decided to excerpt (edited and rearranged for the blog format) my little squibbet of writing about it.
* * *
One of my recurrent themes is that all forms of judgmental or decision-making reasoning, other than the purely deductive, have a moment in which there is an indeterminate or intuitive or mysterious leap. To the extent we see ourselves as scientists, it is difficult to let go of the hope of explaining that leap in scientific (read: predictive) terms, yet we soldier on, looking for, analogically, a way to square the circle.
An interesting and readable example of the “soldiering on” is A Decision Theory Approach to the Business Judgment Rule: Reflections on Disney, Good Faith, and Judicial Uncertainty by Professor Andrew Gold, the thesis of which is that the rational basis test is still the best standard of review under the corporate business judgment rule.* As he observes, boards make decisions in the context of “intractable empirical uncertainty." He thus turns to Professor Adrian Vermeule’s discussion of institutional choice and decision theory as a means, it seems to me, not of supplying a scientifically predictive means of decision-making, but of choosing which institution’s intuition will be given presumptive deference. I read the analysis to suggest that, given enough time, the decision-making could be scientifically predictive, but in the ex ante time frames decisions must be made, the issue is “trans-scientific.” (I am not sure how that differs from being “trans-cendental.”) In the decision theory model proposed here, uncertainty means that decision-makers know the payoffs of decisions but do not know the probability of those payoffs; ignorance means that they do not even know what the payoff will be. The purported value of decision theory is that it “permits decisions to be made without resorting to random guesses or raw intuition.”
If we cut through the jargon, the upshot is that there are analytical and reasoning tools – deductive, inductive, abductive, analogical – to approach or isolate the factors in a decision, or to weigh or quantify or anticipate or calculate, but ultimately the decision is a leap from what we know to what we do not, and in the moment of that leap all forms of reason (short of formal deduction) lead back to something that we seem only to account for empirically as something like “intuition.” In a 1996 Harvard Law Review article, Professor Scott Brewer said the following about analogical reasoning: “The mystics [referring to a particular group of scholars] are correct that there is inevitably an uncodifiable imaginative moment in exemplary, analogical reasoning.” We know the same to be true for rule-following. Has decision theory, a creation of economic models of behavior, really shed any light on the process? I'm not sure the theoretical solution is any more satisfying. And I would love to see, in follow-up perhaps, how Professor Gold's interesting dive into theory would work as a board of directors actually pondered a merger, or a sale, or the firing of a CEO.
* Professor Gold's abstract follows the fold.
Here is the abstract:
This Article presents an institutional choice perspective on the judicial role in enforcing corporate law, in light of the Delaware Supreme Court's recent formulation of a fiduciary duty of good faith. The Court's Disney decision allows for the possibility that director decisions will be reviewed under a more stringent standard of review than the traditional business judgment rule. This Article argues that shifting the standard of review could dramatically alter the courts' role in policing board misconduct. Furthermore, it suggests that courts do not have access to sufficient empirical data to calculate an ideal balance between board accountability and board authority. It is impossible to reliably weigh the complex variables that are relevant to this balance. Given this uncertainty, this Article then uses decision theory to suggest that the business judgment rule standard – a rational basis test – is the most reasonable means for courts to review unconflicted director conduct.
Fiduciary Exception To Work Product Doctrine
Judge Gladys Kessler of the United States District Court for the District of Columbia held that a magistrate had committed clear error in concluding that the fiduciary exception to the attorney work product doctrine must be considered only in circumstances where the work product is given to the fiduciary. The underlying suit involves claims brought by plan beneficiaries of the Federal Employees' Thrift Savings Plan ("Plan") against board members of the Federal Retirement Thrift Investment Board, which administers the Plan. Plaintiffs allege that the Board defendants "breached their fiduciary duties under [federal law] while selecting a new Executive Director and initiating the settlement of a lawsuit brought by the Plan."
The court held that "the fiduciary is not the real client; the intention of the representation is to aid the beneficiaries for whom the fiduciary acts." As the plaintiffs are Plan beneficiaries who have claimed a breach of fiduciary duty, "the beneficiaries are entitled to the work product of their former counsel" even if the documents at issue had not yet been provided to the fiduciary. Thus, the magistrate erred in holding that the defendants could invoke the work product doctrine over such documents to prevent discovery by the plaintiffs. (Mike Frisch)
June 4, 2007
McGowan on Pearce on Lawyer Moralizing
Posted by Jeff Lipshaw
David McGowan has a post over at Legal Ethics Forum commenting on Russell Pearce's article, highlighted here by Alan a couple days ago, about the rise of "value-less" (or what Professor Pearce calls "Blue State") lawyering. As I understand it, Professor Pearce's is a call for lawyers to shed the image of pure hired gun, and to take the lead in civil discourse about hotly debated issues. David, in his usual straight-from-the-shoulder, unambiguous way, is skeptical whether lawyers as accommodationists versus lawyers as zealous advocates (I prefer that to hired guns) will be oil on troubled political waters.
As I skimmed Professor Pearce's article and David's response, the issues struck me the same way Ronald Dworkin's casting of the issues about law and morality always strike me. We find discussions of normative truths (particularly, in Dworkin's case, the claim that normative claims can be objectively true or false) in the most contentious issues facing us - abortion, genocide, capital punishment. I think David is arguing that we are better off with the model of as lawyer as advocate in the marketplace of conflicting ideas. I'm not sure I understand the either-or approach - perhaps accommodation is good when people begin to believe that the purity of their ideals justifies all means, including radical incivility. I don't think Atticus Finch accommodated or compromised one bit. But that wasn't the point I really wanted to make.
I've spent my career in far more quotidian circumstances, so I can't speak to being a lawyer in the face of the great issues. I think lawyer as moral voice in the boardroom or at the negotiating table, or counseling a parent on how she will fashion her bequests in a will, or representing one spouse in a divorce is something to be valued, albeit, as David notes, with full disclosure that what is being offered is not legal advice, and that ultimately the client will decide the course of action.
More On Georgia Lawyer
Alan's post earlier today and link to David Giacalone's discussion raised the prospect of disciplinary charges against the Georgia lawyer who appears to have risked the lives/health of others by his travel. This led me to the Georgia version of Rule 8.4, which is radically narrower in its scope than the parallel ABA Model Rule. Model Rule 8.4(b) prohibits the commission of "a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness to practice in other respects." There is no requirement of a conviction or specific linkage to law practice. Further, Model Rule 8.4(c) prohibits "dishonesty, fraud, deceit or misrepresentation" without specific connection to law practice. By contrast, Georgia requires a conviction and that any dishonesty be in connection with "professional" conduct.
Is there precedent for sanctioning lawyers who recklesssly endanger life? You bet. Lawyers are suspended and disbarred for negligent homicide on a regular basis. If this lawyer is charged and convicted of a crime with comparable reckless intent, discipline should follow as night follows day. Absent such a conviction, it appears that Georgia's ethics rules have a nice (at least, nice for lawyers) loophole through which this conduct (assuming the worst in terms of recklessness) may escape sanction. (Mike Frisch)
Problems Facing Senior Lawyers
The National Organization of Bar Counsel and the Association of Professional Responsibility Lawyers have completed a joint study of the issues facing aging lawyers. The stated goal of the study is "protecting the public while simultaneously preserving the integrity, productivity and dignity of senior lawyers." The summary suggests the attorney discipline system should have approaches tailored to the special issues of prosecuting what it calls "age impaired" lawyers. The report is attached to the linked announcement. (Mike Frisch)
Bar Discipline Implications of "Typhoid Perry" Mason?
Or maybe it is "Typhoid Marry" since he was so insistent on his post-nuptials. Anyway, over at f/k/a, the always-insightful David Giacalone posts on Andrew Speaker, asking Should they disbar TuberculEsq? Without more information on possible criminal charges or violations, David grudgingly concludes there may be little the bar can and will do now, but does point out the different pre-admission implications of such conduct had Speaker not already been admitted. (I also doubt he can ever become a member of the Italian bar.) David also links to other posts on the legal and civil liability implications of this TB situation (ironic since Speaker is a personal injury attorney).
One non-ethics issue that further concerns me is the world's current perception of Americans abroad. This guy is our latest ambassador of good will. His actions fit the stereotype of the ugly, arrogant, and selfish American. If they boo Miss USA in Mexico, imagine how people the world over will continue to react to such decisionmaking and actions as Speaker's -- and to the rest of us by association. It makes matters worse that he and his family show such hubris and self-centeredness on Good Morning America and in Newsweek. I expect to be having to disavow him constantly this summer, as if he somehow represents us. Ugh. [Alan Childress]
The Law and Ethics of Parental Complicity in Underage Drinking
Posted by Jeff Lipshaw
I'm always interested in what my blogging friends (particularly over at PrawfsBlawg and Conglomerate) with young children are experiencing, but as the saying goes, small children, small problems, big children, big problems. My son James graduated from high school on Friday night. He goes to a small private school in Indianapolis, and one of the perks of the relatively ungodly tuition is that the ceremony is elegant and tradition-laden. The school is over hundred years old, and is the result of a merger of a boys' school and a girls' school. The boys wear tuxedos (the old-fashioned simple kind) and the girls wear long white dresses and carry long-stemmed roses (as has been the custom for one hundred years). The addresses were heartfelt, touching, interesting, and brief. There was a dinner and dance afterwards attended by students, parents, faculty, and administration.
So far, so good. While completely unofficial, there was to be an all-night party at the home of one of the senior parents out in one of the exurbs. And this is where the issue of law and norms comes into play. There is no question that the consumption of alcohol by anybody under twenty-one in Indiana is illegal. Indeed, it's a interesting legal position because one is a minor for purposes of the alcohol statute, even though one has majority for purposes of liability under it. Yet underage drinking is one of the dark sides of affluent schools and communities. The solutions come hard. Some parents believe that they will not be able to stop their children from drinking and thus attempt to control it by allowing at home with restrictions on driving (i.e. taking the car keys away). The problem is particularly acute after proms and graduations. We understood that there would likely be drinking at this party, but the plan was that the parents would take away car keys and the students would be essentially locked down for the night.
James is eighteen and responsible. As far as we know, he has never had a drink (he's diabetic, for one thing, and alcohol messes the hell out of your blood sugar). And even though he is eighteen, he asked us if he could go to the party because a number of his friends were going, promising us that he did not intend to drink there. But he didn't stay all night. He got home at 2:30 a.m., and told us that the police had already been called, and had surrounded the property by time he got there. He and his friends stayed for a while, and then were told by the police (who were waiting for a search warrant to be able to go inside and look for the booze) that they were free to go if they took and passed a breathalyzer test (which he and his friends did).
We woke up Saturday morning to find the party at the top of the local news - the father is a well-known public figure. He had been booked for contributing to the delinquency of a minor and released on bail, and several of the students were arrested for underage consumption of alcohol.
Here are a number of thoughts:
1. I had an initial "that's them, not us" reaction. I would never have hosted a party in which it would be acknowledged that underage drinking was going on. But I keep having this feeling of complicity because we acquiesced in James going at all. I have rationalized it a dozen different ways, but I would have felt better about myself if I had called the other parent (who I do not know personally) and said, you really should have this party without alcohol.
2. We learned afterward that the town in which the party was held was on alert for post-graduation parties - indeed, the county sheriff had a "Party Crashers" campaign, telling people that they could expect to be busted. Moreover, the local high school quarterback was critically injured in a DUI accident last week (blood alcohol = 0.09) so there was heightened sensitivity.
3. The sheriff was on local television yesterday, and what he had to say sounded reasonable to me. I paraphrase pretty closely. "These are not bad people, but they have done something foolish, and I want to talk to them. I don't see an exception in the law about providing alcohol to minors if you do it in a home and take away car keys. I would rather deal with this situation in this way [i.e. busting the party early] than have to see parents to tell them that their children have been injured or killed in a car accident."
4. I was on the board of directors of the school for four years. First, as to this incident, there is little the school can do. Those involved had all received their diplomas hours before. But there is an ongoing question of the school's jurisdiction over, or its ability to oversee, the activities of students off the campus. (As to the former, there is little doubt that anything done off-campus that harms the school or its students is subject to the school's disciplinary processes.) I have advocated for a number of years that the answer is not regulation from the school but a "parents' compact" in which families pledge to each other that their homes will be drug and alcohol free zones for the children. The pledge would be backed by peer pressure, not law. Again, I have overheard parents (for example, sitting behind me at a lacrosse game) justifying allowing the children to drink "under supervision" because it "teaches them how to deal with it" before they go off to college and are unsupervised. But the MADD statistics (admittedly unscrutinized) say that allowing drinking in that way increases the likelihood of later problems.
5. Alene and I have repeated this axiom a number of times: "Your children are going to make mistakes. You just hope against hope that the mistakes are small ones, and that they do not get hurt."
6. As a public service, here is a link to MADD's page on underage drinking.
June 3, 2007
Fee Caps In Contingency Cases
An illegal fee should be per se unreasonable under Rule 1.5. In response to a request to intervene from the Indiana Trial Lawyers Association("ITLA"), the Indiana Supreme Court issued an opinion clarifying an earlier agreed disposition in a disciplinary case that reprimanded an attorney who had charged in excess of a 15% statutory maximum in a medical malpractice case. The court states that an attorney and client may contract for a fee that in effect exceeds the 15% without running afoul of the ethical rule. The court notes the importance of a client's freedom to hire competent counsel.
A concurring opinion notes that "[i]t is far from clear that [this opinion] represents the best policy for determining unreasonable fees at the interesection of Rule 1.5 and the medical malpractice statute" and that the majority was engaging in rulemaking in the context of a stipulated discipline case. However, the opinion further notes that the concerns of ITLA were well substantiated and that the defense bar had not objected. (Mike Frisch)