June 23, 2007
Taking On The Court
An attorney in Arkansas has apparently decided to take on the justices of the Arkansas Supreme Court. After losing an appeal of a civil case before the court, he was directed to show cause why sanctions should not be imposed for his conduct of the case. He responded with a 70 page brief denouncing the court's decision and seeking recusal of the entire court. The matter of his conduct in the case was referred by the court to disciplinary counsel. His response to charges of intemperate conduct was not just a general denial; rather, he sought to depose the then-sitting justices of the court (which was denied). The court held that the misconduct here was serious (noting that occasional disrespectful behavior is minor misconduct) and warranted a six-month suspension. The court rejected contentions that the attorney had been denied due process, noting that the justices did not have any interest in the outcome of the bar prosecution. (Mike Frisch)
Probation Rather Than Suspension
A junior attorney in California accepted a death penalty case at the urging of a partner in his firm. He had no prior experience in death penalty litigation. He left the firm but kept the case. Over a period of several years, he performed a significant amount of work but never was able to file an opening brief. A bar disciplinary case was brought that has resulted in a recommendation that he receive probation with conditions rather than an actual suspension. The ethical violations involved failure to perform competent services and failure to report that he had been subject to judicial sanctions. The Review Department of the State Bar Court rejected the contention that the lawyer's 17 years of an otherwise unblemished career should not be counted as mitigation. The review department concluded that actual suspension was not appropriate because the attorney was in over his head after taking the assignment at the partner's urging. Rather than a case of moral turpitude, the case involved "ineptitude or lethargy, or both." (Mike Frisch)
Domestic Violence Requires Suspension
The D.C. Board of Professional Responsibility has recommended non-identical reciprocal discipline in a case involving domestic violence. The attorney had been censured by the New Jersey Supreme Court, which rejected a proposed three month suspension from its Disciplinary Review Board. The New Jersey court did not issue a written opinion explaining its reasoning, although it had warned the bar several years ago that domestic violence would result in suspension (the warning came in the case of In re Magid, 655 A.2d 916, where a deputy prosecutor was censured for a criminal conviction after he had severely beaten an office employee that he was dating).
The D.C. Board concluded that the violation of Rule 8.4(b)(criminal conduct that reflects adversely on fitness to practice) invariably requires a period of suspension in the District of Columbia. The Board recommends a sixty-day suspension and that the attorney "attend a program for batterers of women." (Mike Frisch)
June 22, 2007
Suit For Unpaid Fees Leads To Censure
An attorney who employed a lawyer not associated with his firm to assist in an appeal but charged the client as if he did all the work himself was censured by the Wyoming Supreme Court. The attorney charged $250 per hour and paid the contract lawyer $85 per hour. The sanctioned lawyer is also required to submit a billing form to Bar Counsel for apptoval for use in future cases where he hires outside counsel to assist him.
Practice note: this bar discipline case had its genesis in the lawyer filing suit for unpaid fees, which led to a malpractice counterclaim. Many cases that result in bar sanctions are a direct result of litigation brought by the lawyer against a former client. (Mike Frisch)
June 21, 2007
More Aggravation And Mitigation
The Washington State Supreme Court decided a case that raises the question whether disbarment is the only possible sanction where an attorney knowingly offers false testimony under oath. The court concluded that a three year suspension was the appropriate sanction. The case involved a lawyer who had engaged in an extramarital affair with a deputy sheriff. She denied under oath in his divorce proceeding that she was aware of violent behavior on his part. According to the court, this was admittedly false--she in fact had been a victim of "intimate partner violence" at his hands. The court balanced an array of claimed mitigating and aggravating factors, including the dangers to his child caused by the testimony and the impact of the domestic violence, concluding that disbarment was too harsh a sanction to impose. A dissent would hold that there was insufficient evidence to establish that the testimony was false. The dissent was authored by Justice Sanders, the subject of a recent post on this blog. (Mike Frisch)
An Ohio attorney had a successful civil and criminal practice in partnership with his spouse, who retired from the firm for other pursuits. He began to self-medicate with cocaine to deal with a "chronic staph infection that caused painful open sores all over his body." He turned to illegal drug use after doctors were unable to cure the staph infection and also suffered from a disc injury. He pled guilty to felony cocaine possession, had conviction withheld while he received treatment but had a relapse when he used cocaine with a friend who unexpectedly had the drug when giving him a ride home. The attorney has participated in the bar's addiction rehabilitation program. The Ohio Supreme Court ordered a two-year suspension with 18 months stayed with conditions that require that he abstain from illegal drug use. (Mike Frisch)
Army Corps of Engineers' Flooding Risk Projections in New Orleans
Not particularly on point, but after a year at Tulane, and many friends and colleagues there, the fate of New Orleans still matters to me. The Army Corps of Engineers has published its block-by-block risk assessment for post-Katrina New Orleans.
June 20, 2007
FAS 5, Lawyer's Intuitions, Algorithms, and the Goldenlocks Mean
Posted by Jeff Lipshaw
I have posted before on the concept I call "the ontology of FAS 5." FAS 5, for the uninitiated, is the standard under generally accepted accounting principles, or GAAP, for loss contingencies, the quantification or description of something bad that may happen, but hasn't yet, like a liability claim or a lawsuit. I keep returning to what I think is one of the most intriguing sentences in all of of lawyerdom: the explanation in the commentary to the ABA's Statement of Policy regarding FAS 5.
Lawyers do not generally quantify for clients the “odds” in numerical terms; if they do, the quantification is generally only undertaken in an effort to make meaningful, for limited purposes, a whole host of judgmental factors applicable at a particular time, without any intention to depict “probability” in any statistical, scientific or empirically-grounded sense.
My reading this summer consists of a dive into the philosophy of science and social science. (The books and articles are stacked up here in my office, and scold me every time I walk by them to the computer.) The idea that the concept at the very heart of loss contingency, which is at the very heart of the model by which we represent a business, is not "statistical, scientific or empirically grounded" is fascinating to me. So what is the sum of those judgmental factors, and is the import here that the lawyer's views offered as the basis for an accounting entry (or, more likely, non-entry) are intuitive, non-scientific, and based in a priori knowledge?
I just finished reading Douglas Hofstadter's I Am a Strange Loop (sorry if I keep repeating this). He did a great service by writing the book in the order he did. The thoughts at the beginning, on how we deal with complexity, and how complex systems take on the appearance (if not the reality) of consciousness, have rational force. (The idea that a stack of books is complex enough to scold me is only metaphor, however, and not a statement on my part that they are conscious.) The arguments at the end, to the effect that there can be no transcendental or spiritual aspect to consciousness, because all can be explained by physics, are less compelling, and, indeed, seem tautological to me. In his epilogue, he refers to Godel's theorem, and its impact on the completeness (versus consistency) of Principia Mathematica as the "Trojan horse that sneaked self-consciousness into the very fortress that was built to keep it out. . . ." No! There's no evidence whatsoever that arithmetic is self-conscious! There is evidence that arithmetic is so complex that it develops propositions that are undecidable under its own meta-principles. It is a demonstration of limits; not in my mind [sorry!], a debunking of human consciousness into mere cause-and-effect empirical reality. (As I said, I'm agnostic on the subject, which means that I'm inclined to disagree with Professor Hofstadter, but I'm open to better evidence or argument than he presents.)
That interplay of limits and complexity, of the paradoxes built into everything, including the fact that we can articulate the concept of the unknowable or impossible, even when we can't know what the unknowable or impossible is, seems like it would be unduly metaphysical, but my point is that it keeps popping up in the midst of things as this-world and pragmatic as lawyers' responses to loss contingency issues under FAS 5.
Related to our perceptual limits is the perceptual editing function of a human (or, I suspect, a non-human) mind. It's rational that natural selection would have favored those beings that could distinguish the data important to survival. We perceive on a limited band-width, to use the jargon. But that perception is, as of yet, non-algorithmic. John D. Barrow, Professor of Mathematical Sciences and Director of the Millennium Mathematics Project at Cambridge, says in his book, Impossibility: The Limits of Science and the Science of Limits, "Remarkably, no computer has yet managed to reproduce our many levels of visual sensitivity to patterns." All unduly metaphysical, you think, until you ponder the "I know it when I see it" aspect (as I am now in early prep for securities regulation) of materiality. It's the Goldilocks test: not too much information, not too little information, but information that is juuuust right.
Aretaic philosophers, like my friend Larry Solum (Illinois, above left, oops no, that's Aristotle), model this nicely within the Goldenlocks Mean, and Aristotle's metaphysics are probably a good working basis for corporate and securities lawyers who feel the philosophical urge (not recommended when responding to SEC staff comments on an S-1 or S-4 or during a closing, but okay in the bar afterwards). I'd take the Golden Mean (with its implicit intuitiveness) over algorithm any day. Just a little more from Professor Barrow: "There is an intriguing pattern to many areas of deep human inquiry. Observations of the world are made; patterns are discerned and described by mathematical formulae. The formulae predict more and more of what is seen, and our confidence in their explanatory and predictive power grows. . . . Users of the magic formulae begin to argue that they will allow us to understand everything. The end of some branch of human inquiry seems to be in sight. . . ." Well, for the punch line to this, pick up Professor Barrow's book.
May a former client suing his attorney for legal malpractice rely on information contained in a brief filed in mediation of the claim? No under California law, according to a decision of a division of the California Court of Appeal. The case involved a personal injury claim that arose from an airplane crash. The former client contended that the attorneys had breached their fiduciary duties by making an unauthorized settlement demand in a mediation brief. The court looked to the broad policy of confidentiality in mediation and acknowledged that its ruling may make proof of malpractice impossible. The submissions, but not oral communications, are protected from use in the malpractice litigation. (Mike Frisch)
June 19, 2007
The Alaska Supreme Court held that it was error to deny the payment of attorney's fee higher than the statutory minimum in a workers compensation case. The employee had been injured carrying a 60 pound battery. After dealing with the compensation claim pro se, he was injured again in an auto accident. He decided to retain counsel due to the complications caused by the accident case. He was then involved in a second auto accident. The court held, contrary to superior court's conclusions below, that the workers compensation board properly found that the claims were "controverted" in some respects and that payment of fees could exceed the minimum. The case was remanded to the board for determination of appropriate legal fees. (Mike Frisch)
Minnesota Amends Admission Rules
Minnesota has amended its bar admission rules effective July 1, 2007. The new rules set forth the considerations that apply to an applicant who must demonstrate rehabilitation from pre-admission misconduct. There are also significant changes to the rules governing practice by foreign legal consultants. The linked document shows the amendments by striking through the former language and underscoring the new provisions. (Mike Frisch)
Trash Talking Not Stalking
This isn't a legal profession case, but it may be of some interest to employment lawyers. The Supreme Court of Georgia reversed a protective order obtained by two fire department employees against the fire chief of the City of Loganville. The employees had sought the protective order for stalking and verbal abuse in the workplace, and for "physical assaults occurring primarily during basketball games conducted as part of their required physical training." The court held that the chief had not followed the employees or placed them under surveillance and thus the evidence did not establish harassment without legitimate purpose. "The verbal taunts, which occured at various times during working hours and included 'cursing, threatening employees' jobs and belittling employees' intelligence, personal life, weight, sexual experience or financial situation'...were not sufficient to create a reasonable fear for the safety of [the firemen] or their families." (Mike Frisch)
As the ethical implications of prosecutorial misconduct has been a topic of interest of late, it is worth noting that a disciplinary case was recently tried in the District of Columbia against a former Assistant United States Attorney accused of improperly paying witnesses in criminal cases. The matter was heard over several days last month and relates to conduct that occured many years ago. The accused lawyer has long been in private practice. I predict that, in sharp contrast to the Nifong matter, this case will take years to resolve. The linked article notes that the alleged misconduct occured in 1994, that the DOJ Office of Professional Responsibility completed its report in 1998 but did not provide it to Bar Counsel until 2002, and that Bar Counsel waited until 2006 to file charges. With any luck, the case will be resolved between 15-20 years after the conduct had taken place. (Mike Frisch)
June 18, 2007
The NOBC case of the month is a decision from the Illinois Supreme Court involving advance payment retainers. The summary notes that the decision has generated substantial interest among disciplinary prosecutors. The decision involves a dispute over whether an advance payment to a firm was the firm's property when paid. (Mike Frisch)
The Louisiana Supreme Court ordered permanent disbarment in two cases last week. One matter involved an attorney convicted of federal drug and state medicaid fraud charges. The second case involved an attorney who "in the aftermath of Hurricane Katrina...made Internet contact with a person whom he believed to be a thirteen-year old evacuee from New Orleans." The contact was an investigator conducting an online cover operation. Additional incriminating evidence was found on the attorney's computer hard drive. The attorney pled guilty to felony carnal knowledge (based on a sexual relationship with a 15 year-old) and felony computer-aided solicitation of a minor.
Both cases refer to the court's permanent disbarment guidelines in reaching the conclusion that disbarment with the possibility of eventual reinstatement was an insufficient sanction. (MIke Frisch)
No Free Ride
A justice of the Washington State Supreme Court was accused of misconduct in visiting a Special Commitment Center (SCC") and having contacts with residents who had cases pending before his court. He contended that he was entitled to representation at public expense both at the hearing stage and on appeal. The Washington Court of Appeals Division II (Seinfeld, J.) held that the justice would have to pay for whatever justice he could obtain in the matter. (Mike Frisch)
Reflections On Nifong
The swift action of the North Carolina bar disciplinary system in the Nifong case is extremely rare, no doubt in large part because the former prosecutor threw in the towel immediately after the hearing had concluded. The bar has issued a press release patting itself on the back (and not mentioning earlier cases against prosecutors who had withheld exculpatory evidence in death penalty cases and escaped meaningful sanction).
This case was, so far as I'm aware, the first bar discipline case covered live on Court TV. I had hoped it would give the general public real insight into the nature of professional regulation. Instead, I fear that the take-away point is that bar discipline is both swift and sure. As a general proposition, discipline is neither swift or sure. Most bar cases take years to resolve. For instance, I tried one involving bill inflation by a partner of a large law firm in the summer of 1998 that is still going on. The public would be well served by increased transparency and media coverage of bar discipline cases. While few matters will generate the interest of the Nifong case, such coverage can only help the public evaluate whether self-regulation is in its interest or merely serves the "parochial or self-interested concerns of the bar."(Mike Frisch)
June 17, 2007
Update on the Burgeoning Industry of Forensic Metaphysicians
Posted by Jeff Lipshaw
I posed my question about the history of the "impossibility" provision in the California Civil Code to the AALS Contracts listserv, and got a number of responses, all of which point out the vast sea that is knowledge.
The provision is a relic of the [David Dudley] Field Code from the mid-nineteenth century. The Field Code was enacted by the New York legislature several times, but vetoed by the governor. A variant was adopted in California in 1872. The impossibility provision is still in force in California, Montana, North Dakota, Oklahoma, and Guam.
Tom Folsom (Regent, left) does me (us) the yeoman's service of a legislative history of the provision, courtesy of Scott Pryor (Regent, right). I won't repeat Tom's history here, except that the provision appears to be Field's derivation of a provision in the Napoleonic Code. (E-mail Tom if you want to follow up). But Tom concludes:
Finally, as to the question: "is there a metaphysician in the house?" -- don't get me started. But FWIW, consider, as to "impossible in the nature of things," e.g., Aristotle's advice (more than once, with different variations) (impossible in the nature of things: viz, men and women cannot, by wishing it to be so, immediately sprout wings and fly; therefore it is [translating roughly] stupid to waste ANY time thinking, arguing, or planning about how you might grow wings and fly home tonight after work, and even more stupid to study and debate which wings you would most like to grow; instead it is only sensible to think about things actually possible [well, things potentially actual, but you get my drift], like walking or riding home -- this sort of thinking about the nature of things as they really are, or potentially can be, would constitute a wonderful tonic against some of the sillier notions that pass for wisdom these days. Too bad more courts (lawyers, and ordinary folk) haven't picked up on the staggeringly simple common sense of good metaphysics.
This is a nice piece of pragmatism, but let me blur the binary "sprout wings and fly" with a real life example about the impact of this definition of impossibility (although not in contract law). Let us assume that Joe is using a chemical manufacturing process, in which he takes chemicals A, B, and C and catalyst X and creates chemical MNO. Mary has a "consisting of" patent that describes a process for changing chemical DEF into MNO, also using catalyst X. Mary sues Joe on the theory that within the reactor the only way for ABC to turn into MNO is for it first to turn into DEF, at least for a instance, before it changes into MNO. If we were to stop the reaction midstream, and look inside the reactor, at least in theory, we would find a chemical process going forward from point whose elements match precisely described by the claim of the patent. Nobody has ever actually isolated the instantaneous existence of DEF, but that's what organic chemistry tells ought to be happening. At least it's not impossible that it is happening.
My understanding is that patent law deals with this problem by saying, essentially, that a process occurring inside the chemical reactor instantaneously cannot be the basis for a chemical process patent infringement claim. But in our day of nanotechnologies, or microchips that are operating on the molecular level, it seems to me we could be writing contracts that draw distinctions on things that would have been thought outside of the nature of things in 1872. Or that contracts, being the imperfect models they are for controlling future contingencies, could be written now, and need to be interpreted in the future when something seemingly "common sense" impossible now is possible then.