Saturday, June 16, 2007
Posted by Alan Childress
The AP wire story here. It is reported as the panel having "disbarred" him. I wonder if that is premature since this is just the bar panel first hearing the matter. On the other hand, "Nifong will not appeal the punishment, his lawyer said." Maybe that gives it some immediate effect, though even then it would seem to await the end of the appeal period (e.g., just in case a client in this position might want to appeal despite his attorney's statement). Yet it would be hard now for him to take that back and appeal it, and I doubt the attorney said that without having run it by the client [unlike Angelina Jolie's?], so it seems this will result in a disbarment. Perhaps he is readying himself as best as possible for a reinstatement petition a few years from now. If so, his attorney may want to file a consent discipline formally in lieu of an appeal, and not just "not appeal."
In the abstract and as the world perhaps should be, it seems the right punishment for the admitted and obviously proven offenses. On the other hand, there is some history in bar discipline across the nation that would suggest that similar prosecutorial misconduct goes less punished, generally. It may be the right decision, but is it also possible that the N.C. bar [maybe even understandably] is doing some of what it accuses Nifong of doing: treating a case differently than it might have otherwise because it has gone public and taken a political life of its own? Do not some of the handwringing statements quoted from the bar seem designed for public consumption, more so than the usual panel finding? My query probably overstates the reality that Nifong created much of the "life of own" of his prosecution, and made the statements in the press not as part of a regular process like issuing a bar decision. But my experience is that bar boards don't decide cases in a day (or really, a year), write such strong statements, or slam prosecutorial overreaching this efficiently or thoroughly. I think they should in many cases, but this one is just more public than most.
Even if there is something political in the board's result and speed here, it is certainly a wake-up call to "rogue prosecutors" everywhere. And I predict that later bars will not be able to honor so readily the tradition of easily forgiving the prosecutorial misconduct they often find, as just overzealous public protection.
Posted by Jeff Lipshaw
I picked up Impossibility: The Limits of Science and the Science of Limits by Professor John D. Barrow (Cambridge University - Mathematics) this morning, and was struck dumb (quite an accomplishment, by the way) when I read the epigraph to the last chapter: "Everything is deemed possible except that which is impossible in the nature of things." Sounds like the usual metaphysical hokum, except that it is Section 1597 of the California Civil Code, defining impossibility for the purposes of contract law.
The statute was enacted in 1872. This bears some attention, but in the meantime, I pause to contemplate a contracts lawsuit in which Kant and Hume are called as opposing expert witnesses on what is impossible in the nature of things.
UPDATE: Just to demonstrate how seriously the academic community takes this issue, California Civil Code Section 1597 turns up exactly three hits in "law journals" in Westlaw, one of which is the Emory Law Journal on "The Jurisprudence of Yogi Berra" to which some of you may have contributed.
I have now learned that the California Civil Code is full of ontological lessons like "the greater contains the less;" "a thing continues to exist as long as is usual with things of that nature;" "things happen according to the ordinary course of nature and the ordinary habits of life;" and "that which does not appear to exist is to be regarded as if it did not exist." The practice community does not seem to be any more enamored with the statute: I found it cited only three times, and never once did a court plumb the depths of the subject with which the legislators in 1872 have titillated us.
Posted by Alan Childress
David Hricik (Mercer) has posted to SSRN his article, "Mining for Embedded Data: Is it Ethical to Take Intentional Advantage of Other People's Failures?" It will also be published in 8 North Carolina Journal of Law and Technology, No. 2, Spring 2007. Note that the ABA and several states have gone in opposite directions on this issue. Here is his abstract:
This article analyzes embedded data that accompanies many documents and the legal ethical issues that accompany inadvertent receipt of documents containing metadata. It addresses ABA Model Rule 4.4(b), ABA Formal Ethics Opinion 92-368 and 06-442, and New York opinion 2003-04, Florida Bar Opinion 06-2, and others.
June 16, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)
Friday, June 15, 2007
Here's a test of your attitude towards lawyer sanction. How would you evaluate the following charges in a complaint recently filed by the Illinois ARDC? In the wake of his termination as an associate of a law firm in Elgin, Illinois, the attorney is alleged to have made a series of unauthorized purchases on the firm credit card. Among the purchases - several pieces of artwork ("Ete Hiver Chamonix Mont-Blanc" and others), a lady of justice statue, and a "medium black hipster coat." Total: roughly $1200, mostly at Target. The attorney was charged criminally but diverted to a Second Chance Program which required restitution. The charges are deferred pending completion of the program.
Count two involves an argument with the partner who fired him and the handling of his last paycheck. The attorney left a text mesage for the partner as follows: "We're now settled. Otherwise, I'll tie you up in Court on fraud & malpractice charges & report you to the ARDC. Your S-Corp. is dissolved...dumbass!" The charge: threatening to present professional disciplinary actions to obtain an advantage in a civil matter in violation of Illinois Rule 1.2(e). Note that there is no such rule in the ABA Model Rules.
How would you decide this one? What factors would influence your decision as to misconduct and sanction? (Mike Frisch)
The South Carolina Supreme Court rejected a disciplinary panel's proposed 30 day suspension where the attorney had, in four instances, violated a rule that requires court approval and certification of an attorney's trial experience prior to appearing as counsel. He also had trust account issues that the court found due to an erroneous levy by the IRS that was "unexplained and unpreventable." Although the disciplinary counsel noted that the trust issues predated the levy, the court "kep[t] [the levy] in mind when determining a proper sanction." The court also rejected disciplinary delay as mitigation as it was institutional rather than due to the conduct of the parties. Six month suspension. (Mike Frisch)
Posted by Jeff Lipshaw
The New York Times reports this morning a contretemps over an agreement Angelina wanted reporters to sign before interviewing her at the premiere of her new movie, A Mighty Heart, about Daniel and Mariane Pearl. The agreement would have forbade reporters from asking her about her personal relationships, and would have required that "the interview . . . not be used in a manner that is disparaging, demeaning or derogatory to Ms. Jolie." Angelina's lawyer, Robert Offer, tried to take the blame, saying he was responsible for the statement, and calling himself a "bone-headed, overzealous lawyer."
This is a theme I've harped on. It's no surprise that legal academia has a strongly reductionist bias, because the nature of thinking with a legal mental model is self-contained and reductionist. That's a casually empirical, but nevertheless strongly held view, on my part, but I was interested to see some real empirical work on this subject on SSRN recently. Hadar Aviram (Hastings, Tel Aviv, right) has posted Trapped in the Law: Legal Actors' Attitudes Toward Legal Practice as a Solution for Social Problems. Here is the abstract:
Courtroom dynamics literature has studied the interactions within the 'courtroom workgroup' - prosecutors, defense attorneys and judges, attributing legal practices in the courtroom to the effects of power struggles and professional interest conflicts between the actors. This paper reintroduces into the picture the important factor of formal law and legal indoctrination, claiming that much of the actors' opinions and behaviors can be attributed to their inability to introduce external perceptions of the problems they address into the legal framework within which they operate. The paper is based on 40 in-depth interviews with prosecutors, defense attorneys and ex-judges in the Israeli military justice system about cases involving disobedience to military service - desertion, unauthorized absences and conscientious objection. The interviews reveal the overpowering effect of legal indoctrination on the perception of these problems and their solutions. Almost all interviewees use the doctrinal legal categorization as the main definition of the problems they deal with, despite their understanding of the political and socio-economic dimensions of the problems. Their policy suggestions are equally limited. Almost all interviewees perceive a tension between their perception and the broader, social definitions of the problem, and have different ways of resolving it: loyalism, bureaucratic thinking, idealism, cynicism and limited innovation. The findings shed light on the impact of legal communications and disciplinary discourse on individual perceptions, and support the usage of discursive theory - focusing on Luhmann and Teubner's autopoiesis - as a strong explanation of professional behavior and interaction, even at the individual level.
The Florida Supreme Court issued opinions in three cases that address some of the most important issues posed in bar admissions and disciplinary cases. In a disciplinary matter, the court vacated an earlier decision and ordered disbarment in a case where the referee had recommended a three year suspension. The case involved intentional misappropriation and a series of arrests and convictions for possession of cocaine. The court found that disbarment was the only sanction for the misconduct, noting that the lawyer was able to function effectively despite the drug use (the attorney "passed the Florida Bar Examination and handled a complex litigation despite daily cocaine use") and was able to distinguish right from wrong. Thus, the drug abuse was not treated as a mitigating factor. The court also ordered that the lawyer pay the bar's costs. A dissent thought the costs should not be ordered as the accused lawyer had fully cooperated with the disciplinary process and was not responsible for causing rehearing of the case.
Two bar admission cases involved applications from previously admitted and sanctioned lawyers. One was admitted on a conditional basis with three years probation. He had resigned in 1997 while facing a wide array of charges relating to fitness to practice, including criminal conduct and misappropriation. He also practiced law in violation of a suspension order, failed to pay taxes for nine years and had unsatisfied judgments. He was a regular cocaine user beginning in 1980 and later became addicted to heroin while in law school. He had been sober since 1997 and had impressive character testimony. The court treated his recovery as a basis for conditional admission with supervision for three years. A dissent rejected the idea of treating a disbarred lawyer in the same light as a first time applicant and would hold that conditional admission should only be allowed for new applicants.
Admission was denied to another lawyer who had resigned while facing disciplinary charges. He had misappropriated client funds "to finance a lifestyle beyond his means- a large house in an exclusive Miami neighborhood, a very expensive car, vacations whenever he wanted a break, and buying anything and everything he wanted." He had been convicted of felony theft. He borrowed from a trust fund established for the disabled son of his aunt and discharged the debt in bankruptcy. The victims and the tax man remain unpaid. The court rejected the suggestion that readmission would facilitate repayment of the victims and was thus appropriate.
How should addiction be treated in bar regulation? Should illegal drug use mitigate sanction? Should negligent misconduct be subject to significantly lesser sanction than intentional violations? How does addiction impact on intent determinations? Should a lawyer be required to make restitution before getting a suspended license back? Should an accused lawyer bear the costs of prosecution? Florida appears to treat addiction as mitigation only if the lawyer cannot otherwise function. This trio of decisions from yesterday gives insight into these and other important policy questions.(Mike Frisch)
Thursday, June 14, 2007
Posted by Jeff Lipshaw
A couple of times in practice I had to deal with the requirements of the Customs Regulations under which it is mandatory that you show the country of origin on a product. As I recall, once it had to do with whether you had to emboss the country of origin into a forged tool. The other time it had to do with the labeling of bulk chemicals. But it's quite clear that imported goods must show the "Made in Bouzhakistan" or they have a problem.
I just went out and bought a rocking chair from the local Ace Hardware. It was sitting on the porch of the store. My back has been sore (see previous post on golf), and rocking sounded nice. It wasn't very expensive, but it was solid maple, not veneer. I discovered it was also "some assembly required," but I take that as a challenge.
On opening the box, I got a nice whiff of maple and polyurethane. The pieces were nice and heavy. The instructions appeared to be in English, and not Danish or that weird Scandinavian sign language you get sometimes. And the sheet advised me that I had purchased a fine chair from the Hinkle Furniture Company, a family-owned operation which had been making furniture in the same location in Springfield, Tennessee since 1834. (So far, no Hill v. Gateway 2000 issues.)
I got to work, dabbing wood glue and inserting Tab A into Slot B. When I flipped over the seat panel, the following was imprinted on a little rectangle of white paper and stuck to the wood: "Made in China."
Score one for the law department over marketing.
Posted by Jeff Lipshaw (USGA Handicap Index: 19.2)
Today begins the U.S. Open at Oakmont, and I happened to pick up the June 2007 edition of Golf Digest, which for some reason is being delivered to a golf pro named "Ronald Lipshaw" at my address here in Michigan. I don't know who he is. I am not one of those people who believes golf is the ultimate metaphor for life, but I'm close. Observations:
1. There is an interview with Arnold Palmer. Here is the first thing he says: "My whole career, I never missed a tee time. Not once, which I suppose is saying a lot for a career that's spanned 60 years and thousands of rounds of golf. Now, for many years I've had a recurring dream that I miss my tee time. In the dream there's no consequence because I wake up abruptly. You can't imagine the relief, realizing that it was just a dream. Now that I'm retired, I'm hoping to hell that dream will go away." I never missed an exam or a class, but thirty years post school, I am still having the recurring dream that I have forgotten to go to a math class for the entire semester, and am facing the final exam. Arnold says a little later: "I was scared to lose. Just terrified of it." How many of us Type-As are more motivated by the stick of losing or failing than the carrot of winning or succeeding?
2. I suppose one of the affinities of golf for lawyers is that there is no game more oriented to rules. One of my favorite books, Missing Links, by Rick Reilly (the Sports Illustrated columnist) has a plot that turns on the difference between touching the sand in a bunker with the business end versus the handle of a bunker rake (it has to do with the rule against testing the surface). Here is Arnold on golf rules: "If you hit a darned good drive but it takes a bad kick and goes out-of-bounds by a foot, it's two strokes [penalty]. Period. If you fan it - miss the ball entirely - it's one stroke. I've never understood that." When I was teaching Secured Transactions, we got to a point where we were discussing the rules on whether a security interest in proceeds continued to be perfected after the twentieth day. The Warren and Walt book has a hypothetical that points out an instance in which you can no longer rely on "policy" or "logic;" the lesson is that sometimes the rule is the rule, and you just have to follow it.
Wednesday, June 13, 2007
A recent bar discipline case from Iowa seemed a rather ordinary discussion of failure to respond to a bar complaint and what we call "garden-variety" neglect (which is still a problem if its your garden being neglected). The lawyer eventually responded and the Supreme Court did not find that the acts of neglect caused substantial prejudice to the clients. Things got somewhat more interesting when I got to the discussion of aggravating factors. Seems the attorney had been suspended for two years back in 1987. The offense? "...[U]nlawfully entering residences and searching for women's undergarments he used to sexually gratify himself." The court notes that he sought treatment for "sex addiction" and that there is "nothing in the record to indicate his addiction affects his present practice of law." Reprimand. (Mike Frisch)
A criminal defendant in Georgia who had been convicted of armed robbery and murder was sentenced to death. He filed a habeas petition alleging that his trial attorney had a conflict of interest as the attorney was concurrently serving as a Special Assistant Attorney General. The petition was rejected on a variety of procedural grounds by the trial court. The Supreme Court of Georgia reversed and remanded for further proceedings, finding that it was error to conclude that the defendant either knew or should have known of his counsel's dual status. Rather, the court held that counsel had an affirmative duty to make disclosures to his client. The court found the claim was not procedurally barred and ordered further evidentiary hearings on the conflict issue. (Mike Frisch)
My son-in-law, Simon Pride, passes along this article from CFO.com about a county treasurer here in Michigan somewhere who (a) embezzled $1.2 million, and then (b) thought the place to invest it was in one of those Nigerian e-mail schemes.
My guess is that he needed money badly, and just $1.2 million wasn't enough for all the Cialis, Viagra, pornography, and hot stocks he was buying on the internet. Probably also went long in Hormel because they make all that Spam everybody's talking about.
Our hits compared to Larry Solum's own Legal Theory Blog are hardly going to make a difference for the book he and Colin Farrelly (University of Waterloo, Canada, Political Science) have edited, Virtue Jurisprudence, now available on pre-order, but Larry is obviously too modest to splash blue ink to the effect of something like:
"Solum is one of the most important theorists writing today on aretaic philosophy and the law. This collection, edited by Farrelly and Solum, and containing essays by both editors as well, is not to be missed by any serious student of legal theory. In addition, if you've ever read one of Larry Solum's papers (try the Virginia article on Public Legal Reason or the essay on appointments gridlock with David Law), you will know how clear and approachable and flat-out clever yet reasonable he can be. This is HIGHLY RECOMMENDED!"
Our friend and frequent commenter Patrick O'Donnell has a piece in Theory and Science on "Social Norms & Law: An Introduction." Not directly on the subject of this blog (but that has never stopped me), but he also has a review in Philosophy East & West (52:2, April 2007) of Islamic Aesthetics: An Introduction by Oliver Leaman.
Tuesday, June 12, 2007
Justin Verlander just pitched a no-hitter. I'm in Michigan so I got to watch it on FSN Detroit. What fun. Then I flipped over to the expanded edition of Baseball Tonight on ESPN. The anchor just said to expect an interview with Verlander: "we are efforting that right now."
Gotta get back to the television. I'll be ambulationing over there. Oh, there's the dog. Good to see it's submissioning to me. That's the only way to make sure you are compliancing them. I'm sure if I went on with this I would start annoyancing a bunch of people.
A North Dakota man who was convicted of killing an antlered whitetail deer out of season had his pro se appeal thrown out by the North Dakota Supreme Court. The investigation began when the defendant posted a web photo of himself with the deceased deer. The court found that the pro se brief "fail[ed] in every conceivable way to comply with our rules of appellate procedure" and that the court need not scour the record for issues because "we are not ferrets." While a pro se litigant's adherence to rules of procedure need not reach the level of perfection of a lawyer, compliance must be substantial. (Mike Frisch)
Posted by Jeff Lipshaw
I have posted on SSRN a short essay, Memo to Lawyers: How Not to "Retire and Teach," on my perception of what it takes for the, shall we say, "well-seasoned" (or, in my case, being a veteran AARP member, nigh on geriatic) lawyer to make the jump into the academy. Shortly after I committed with great relief and enthusiasm to the offer from my new colleagues at Suffolk, I jotted down about twenty do's and don't's and sent them off in an e-mail to Brad Wendel (Cornell, left), whose essay on dealing with the faculty recruiting process, The Big Rock Candy Mountain, is still, to my mind, the best out there. Then I had lunch with another friend (an academic dean) who encouraged me to write the essay as something for him to be able to give to lawyers who inquired about jumping from the practice to the academy. After showing drafts to several people, I concluded on balance the value would exceed the sense of self-congratulation. The abstract follows the fold.
Posted by Jeff Lipshaw
Yesterday was moving day, and my assignment was help the movers clear the stuff out of our self-storage locker, then gather up the dogs (and Toby the Tortoise) and leave for Michigan. (I saw a friend in our local coffee shop and he was sympathizing about moving, and I analogized moving day itself to the actual colonoscopy: once you have done the prep, the procedure itself isn't so bad.)
This is a somewhat random explanation why it was that I was listening to the Diane Rehm Show on NPR between 11 a.m. and noon yesterday, in a car by myself (if you don't count the dogs and the tortoise) on I-69 somewhere between Muncie and Fort Wayne. I like to listen to Diane Rehm (right), particularly when she is interviewing somebody on a non-political subject, because she is a good interviewer, and I admire her courage in continuing her radio career after contracting her voice illness, spasmodic dysphonia. But the one thing that is boring about NPR is the predictability of the political viewpoint, and Diane is no exception.
Anyway, her guest was Alan Murray, the columnist for the Wall Street Journal, who has just published a book, Revolt in the Boardroom, which looks at the recent contretemps at HP, AIG, and Boeing in particular. She was atwitter about the executive pay packages, and particularly annoying in offering the opinion that "it stunk" that shareholders owned the companies (I am pretty sure that was the context). I thought Murray started weak, but compared to Ms. Rehm, started to sound pretty balanced and nuanced by the end of the program.
Here's what I keep stumbling on. There is a polarity in corporate governance between the accountability and the authority of corporate management. As Larry Ribstein continues to point out, the analogy between shareholders in a "corporate democracy" and voters in a political democracy is weak. I suspect Murray was correct (his strongest point) in believing that the last five or six years have marked a watershed in moving the meter back toward more accountability, but I am still agnostic on the breadth of a corporate governance crisis outside of the high profile cases over the last several years. I believe there are something like 9,000 publicly traded companies in the United States. And I bridle a little at sweeping and undocumented generalizations about cronyism. The charge may be true. But I don't think it is supported by looking at the ten or twenty meltdowns, or the 200 backdating cases.
Similarly, golden parachutes took the usual body blows. Again, Murray, in an afterthought, noted that the severance packages were designed to counterbalance management resistance to value-creating take-overs, but he contended that the rise of stock options had made the parachutes disproportionate to that goal. Again, I'd like to see some data on this. The example on the program was James Kilts' payout in the Gillette - Procter & Gamble deal; Murray contended Kilts didn't need that much money to have an incentive to do the deal. He may be right. But my experience is that you really do want to have a situation in which the management is indifferent if what is being offered for the company exceeds the internal view of the company's long-term value.
The old saying is that bad cases make bad law, and that seems to be the case as it relates to the one place a change in the law would make a radical difference in how companies operate, and that's the business judgment rule. After-the-fact review focuses on high-profile issues, but rarely captures the nuance, the complexity, and the uncertainty facing business management and boards. I'll have to think about how to approach this, academically speaking, both empirically and theoretically. But my intuition is that the presumptions are correct where they sit in the law right now.
Oh, and by the way, I was irritated enough by the lack of depth in the conversation on the radio to call in from the car. I actually got into the queue, listened, decided I couldn't possibly be coherent, intelligent, or have any chance of winning in that forum (which despite the relative depth of NPR is still a "sound bite" debate), took a deep breath, and hung up. My last foray into debating these issues with public commentators was when I (as ghostwriter for the CEO) took on Nell Minow of The Corporate Library about whether shareholder proposal advocates were always right, and boards were always wrong. You start out playing defense to a strong political and populist position, and have a hard time doing better than deflecting the "and how many times do you beat your wife?" questions.
Posted by Alan Childress
Rupert Macey-Dare (Oxford [St. Cross College]) has posted to SSRN his article, "'New Certificates of Eligibility,' Training and Entry to the Practicing Bar of England and Wales." His abstract is:
The current system of training and entry to the practicing Bar of England and Wales shows serious imbalances, as discussed in a previous paper on the Economics of Pupillage. Eight Bar Vocational Course (BVC) providers produce around 1000 successful graduates per year over and above the number of available pupillages and annual new tenancies. These students are typically Called to the Bar as non-practicing Barristers but subsequently excluded from any professional legal work as Barristers, for want of an unfunded 1st 6 month pupillage, whose provision is in turn prevented by the Bar's Minimum Pupillage Funding Regulation (MPFR). One laissez faire solution advocated by the Society of Legal Scholars is to leave the current system in place and to allow market forces to restore equilibrium. Another solution advocated by the Bar Council is for Call to the Bar to be deferred until after the completion of pupillage. These two proposals are analysed in a previous paper on the Economics of Deferral of Call.
A third new proposal outlined below is for equilibrium in training and entry to the Bar to be achieved using a New Certificate of Eligibility (NCE) system, combined with No Deferral of Call and strong relaxation or abolition of MPFR. Such a system would have fundamental advantages over other proposals. Firstly, effective control over entry to the Bar would be restored to the Inns of Court. Secondly, the door to the Bar would be opened or closed before students had incurred major BVC expenses. Thirdly, the NCE system would allow effective indirect control by the Bar over the number of BVC providers. Fourthly, every successful BVC student would be expected to qualify as a practicing Barrister at the independent or employed Bar. Fifthly, effective competition for new tenancies would be restored, raising the quality of new tenants and the size and competitiveness of the practicing Bar and social welfare. Sixthly, any discriminatory and deterrent effects on students from disadvantaged background would be reduced thus improving the composition of the Bar over time. Sixthly, the size of the Bar, its national and global influence and ability to compete in the market for legal services would continue to grow.
The abstract on the previous Pupillage paper referenced above appears after the jump.
Not all that related to bar entry, nonetheless see also John Steele's post and link yesterday at Legal Ethics Forum on broader and controversial reforms proposed in the UK about oversight and regulation of the legal profession.
Posted by Alan Childress
Here's a first-person account of life behind bars today for white collar criminals such as fallen lawyers, contrasted with the heady Spago-fed days of the Watergate-era lawyer/felon. It is called Enter a 'Hellish Place' and it appears in the current edition of American, the magazine of the American Enterprise Institute. It tells the harrowing tale of convicted lawyer Alfred Porro, the "Teflon attorney" [apparently not so named because of any representation of DuPont for intellectual property] whose numerous investigations seriously caught up to him. Nowadays, take heed:
‘It’s not Yale, it’s jail,’ says [a] former corrections officer. ‘We don’t separate a white-collar guy from an organized-crime guy from a bank robber—they’re all the same.’
HatTip: Danny Sokol, a University of Wisconsin Hastie Fellow and soon to visit at Missouri, put us onto this interesting story.