June 30, 2007
No Substantial Purpose
A lawyer representing a for-profit entity wrote and distributed a letter that accused opposing counsel of a conflict of interest. As a result, opposing counsel decided to cease representing his client and complained to disciplinary counsel. The lawyer who wrote the letter violated Kansas Rule 4.4 by publishing a letter for no substantial purpose but to embarass opposing counsel. The Kansas Supreme Court held that the rule is not void for vagueness and that an objective standard, rather than the subjective view of the lawyer charged with a violation, controls. Further, the rule is violated when the conduct is directed to counsel rather than the opposing client. The court imposed a censure. (Mike Frisch)
A lawyer who was admitted to practice only in Utah was prosecuted for ethical violations and failed to participate in the proceedings. The Utah Supreme Court disbarred him. He then moved to Nevada, where he continued to engage in client-related misconduct and falsely claimed to be a member of the Nevada bar. The Nevada Supreme Court concluded that it had jurisdiction to consider the imposition of sanctions, and ordered the lawyer enjoined from further practice in Nevada and fined. Because there was information that the lawyer (who also did not participate in Nevada) had relocated to Arizona, the court directed that Arizona authorities be notified to be on the lookout. (Mike Frisch)
June 29, 2007
Talking to the Man
I found this item blogged by Frisch below pretty interesting - its a DC Bar opinion describing when attorneys who represent clients before an agency can talk to agency personnel without going through the agency's GC. It is a contracts-type issue, and I wonder how well it translates into other contexts.
Is it an opinion we should only read as applied to government contractor disputes? I'm not sure it is written that way.
One issue that comes to my mind is what, exactly, an attorney must disclose when that attorney represents several discrete clients in similar matters. That situation might be precluded by conflicts restrictions with representatives of contractors, but in other situations it seems to me the situation would be common. Expecially when matters are in their infancy, the fact of retention and representation can be pretty sensitive. I would assume that counsel doesn't need to disclose representation of other discrete client matters, but is that clear from the opinion?
(Posted by Allison Hayward)
Ethics Diversion In California
The California Bar Journal reports that state bar prosecutors are seeking to amend the rules that allow for diversion of ethics cases to address perceived problems with the present system. The article further reports that the proposals face an "uphill battle" in light of the opposition of lawyers who defend bar discipline cases. (Mike Frisch)
Threats Merit Sanction
A Michigan attorney was reprimanded for misconduct arising out of an immigration matter. The client had retained the attorney to assist in obtaining a green card but secured the card without the lawyer's help. When the client sought a refund, the attorney responded with threats: "[the client and her spouse] were in for a battle they would wish they never started", would lose the green card and get kicked out of the country. The Michigan DRB found that the threat to disclose confidential information violated Michigan Rule 1.9(c)(1)(threats in order to gain advantage over former client). While imposing the reprimand, the Board warned that the decision should not be interpreted as imposing a ceiling for such misconduct. (Mike Frisch)
Posted by Jeff Lipshaw
Let's see. I am walking down a long hallway in the Marriott Wardman Park Hotel in Washington, D.C. I am wearing a lanyard with a name tag hanging from it. Lots of people want to give me advice. Everybody seems young. Is this a dream? Am I forever cursed to relive the Faculty Recruitment Conference in my dreams the way I do the "unstudied-for exam?"
NO! It's the AALS Workshop for New Law Teachers. And I am The Rookie.
I started this post last evening before the first sessions, and now have participated in the first "small group" session and heard the after-dinner talks, the highlight of which was an inspirational (or aspirational) speech by David Hall, former dean and provost, and now I think simply faculty member, of the law school at Northeastern University. More, perhaps, on that later, because there was a lot to chew on. (Teaser: I found it aspirational or inspirational, but how do such meta-appeals fit within the empirical/positive/economic viewpoint that dominate the meat of current legal study? That is, is there a disconnect between the "soul of a teacher" and the mind of a social scientist? As I said, more later.)
There is an interesting mix of experience levels here. Some of us have spent a fair amount of time in the classroom. Some, particularly those who are making the classic jump from the de rigeur two years' big firm experience, have none at all. And, I think, we hear the usual tension between learning about an upcoming experience and simply experiencing the upcoming experience. Learning is like chicken soup - it can't be bad - but nothing substitutes for that first time you stand in front of a class and have the moment when you just lose it ("uh....uh....hmm....[inner thought: who am I and what I am doing standing here in front of seventy people who are looking at me?"]).
I have a dear friend and former partner by the name of Fred Woodworth. Fred is now retired from the Dykema Gossett law firm. Fred was a mid-level partner, just coming into his own as a rainmaker when I joined the firm in 1979. He is also one of the funniest people I have ever met. (Fred's Rolladex was also legendary.) Fred was one of my mentors, and was the relationship partner with the U.S. subsidiary of an mega-European oil company. I may have mentioned before that I spent the first eighteen months of my career writing briefs and oppositions for this client in the Office of Hearings and Appeals of the Department of Energy under the Mandatory Petroleum Allocation Regulations. One of our big cases was called the "Highway Oil" matter. Fred was the supervising partner, and I was the first year worker bee associate. I will never forget (since I remember all of my failures down to the last detail, and it takes up a lot of storage in my rapidly diminishing memory) being called down to a small conference room where Fred, as gently as anybody could in those circumstances, told me that the first draft that I had written and sent to him and the client concurrently not only sucked but had sent the client into an absolute rage. This kind of experiential learning cannot be taught.
Having said that, I just finished a ninety minute session on learning theory and teaching techniques. It was, in my mind, worth the price of admission, and I'm a tough old critic.
Contact With Government Officials
The Legal Ethics Committee of the D.C. Bar recently issued a significant opinion interpreting D.C. Rule 4.2(d) relating to contacts by attorneys with government officials without the knowledge or permission of agency counsel. Such contacts are permissible with disclosure of counsel's representation of her client. Contacts are not permitted on matters that directly relate to the litigation of the matter such as discovery requests. The opinion should be of interest to attorneys throughout the Nation who deal with government matters in the District of Columbia, as such matters may be controlled by the interpretation of the D.C. Rule under choice of law analysis (Rule 8.5). (Mike Frisch)
Due Process For Judges
A judge is entitled, on timely request, to a hearing on informal findings of misconduct. The Arizona Supreme Court vacated a public reprimand imposed by its judicial commission and remanded the matter for a hearing. The commission had imposed the sanction as a result of a complaint that the judge had "inappropriately" objected to the appointment of another judge to his court. (Mike Frisch)
June 28, 2007
New Topic On South Dakota Bar Exam
South Dakota will include Indian Law on future bar examinations. The announcement states that an understanding of this topic is necessary to practice in the state. (Mike Frisch)
A Second Opinion
A law firm retained to prosecute a serious personal injury case obtained a settlement offer of $600,000. The firm advised the client to take the offer. The client was uncertain whether to accept the offer and sought a second opinion from Firm Two. The client then terminated Firm One and hired Firm Two, where the advice was to reject the offer. A month later, the case settled for $950,000. Firm One sought a share of the fees based on the offer it had obtained. The New York Supreme Court found that Firm One had been discharged for cause and denied any fees.
The First Department reversed. The finding that Firm One was discharged for cause was error. Firm One had declined to bring a consortium claim; there was substantial evidence that the client claimed to be single. Firm One had not improperly settled the case without authority; it was clear that the completed settlement was contingent on the client's approval. Finally, Firm One had failed to file a copy of the retainer agreement with the Office of Court Administration as required by New York rules; such a failure is not misconduct that establishes discharge for cause. Firm One had done all the heavy lifting in the case and was entitled to its share of the fee derived from the $600,000 offer. (Mike Frisch)
Many states have rules that permit attorneys licensed in foreign countries to be admitted to practice on a limited basis as foreign legal consultants. The New York Appellate Division for the First Judicial Department had admitted an Italian lawyer as a foreign legal consultant and today revoked his status and struck the attorney from the rolls of licensed foreign legal consultants. The attorney had conceded that he had practiced law beyond permissible limitations. This the first disciplinary order that I have seen taking action against a foreign legal consultant. (Mike Frisch)
The latest on Elizabeth Edwards and Ann Coulter
Posted by Nancy Rapoport.
I've done a post on my blog regarding what I think that professors can learn from Elizabeth Edwards's confrontation of Ann Coulter on Hardball (see my post here), and it strikes me that today's WSJ law blog about Coulter raises an interesting question about her behavior as a (non-practicing) lawyer. Hmmm.
June 27, 2007
I was sitting in the examination room at the MedSport Clinic in Ann Arbor with my son, and he objected to my reading People. He handed me instead a magazine with the enticing title of Successful Farming (it was that or Teen Vogue). I thought the classifieds had some interesting entries. One was for "After Dinner Speaker", guaranteeing "overall wit and wisdom." I thought I could do that.
There was also this:
Wanted JD Combine Operators, and Kenworth Truck Drivers for 2007 harvest. May to November. Willing to train. Grove Harvesting. [phone numbers].
I'm assuming JD equals John Deere, but I thought it was cool anyway. (When I showed it to my son, he said "Soylent Green is lawyers!")
ADDENDUM: One other thing. I have typical male-pattern blindness (ask my wife), but in some circumstances I can get hyper-observant. There was a "pain guide" on the wall by which you were supposed to estimate pain level. Zero pain was signified by a full grin Smiley Face. At full bore pain of ten, the Smiley Face was in sheer torture, its mouth shaping a scream and tears running down its yellow visage. But the neutral Smiley Face was at about six, and even at two, which was "moderate pain," the Smiley Face still had a half-grin. I thought there was something wrong with a chart that had the Smiley Face smiling at any pain.
Whose Life Is It Anyway?
The Oklahoma Supreme Court recently considered an appeal of a man (the "ward") who was partially incapacitated as a result of a head injury sustained in a car accident. A general guardian was appointed and later terminated, which led to the appointment of a limited guardian. Several years later, the ward became dissatisfied with his court-appointed attorneys and retained his own counsel. The court-appointed lawyers contended that the retained lawyers had (1) violated Rule 4.2 by communicating with the ward; (2) "violated the spirit of Rule 1.14 by meeting with a client under disability without consulting with the Limited Guardian or seeking his approval"; and Rule 1.7 because one of the retained lawyers was the brother of the ward's old army buddy.
The court held that "the ward is entitled to an attorney of his own choosing" and that the court-appointed lawyers had made unsubstantiated allegations of ethical misconduct by the retained lawyers. The court remanded the case for an evidentiary hearing on the ward's nomination of retained counsel and reminded "the parties and the district court that guardianship proceedings are conducted for the benefit of the ward, not for the convenience of the court, the attorneys, or the guardians." Footnote 8 is my favorite: in response to court-appointed counsel's claim that retained counsel might receive fees in excess of $10,000, the court found the contention "somewhat ironic as the Court-Appointed Attorneys have received court approval for attorney fees of nearly $16,000 for a client they admittedly had little to do with in the year since the limited guardianship was imposed." (Mike Frisch)
Judge Gone Wild: New Mexico Edition
A full-time magistrate was removed from office by order of the New Mexico Supreme Court. After sentencing a traffic offender, he recused himself from further proceedings "due to a personal relationship that he had developed with her after sentencing." He thereafter tried to influence the rulings of two magistrates with respect to potential violations of probation. He also was a passenger in a car driven by the probationer when she was stopped for speeding. He asked the officer: "Do you know who I am?"
The magistrate's "bizarre behavior...was noticable to court employees" which gave rise to suspicion of illegal drug use. An order for drug testing was issued and he avoided service for several days. It did not help, as he tested positive for cocaine and cocaine metabolites. The court noted that removal from the bench is a power "rarely exercised" but that "the situation...commands that grave result."
In an unrelated matter, the court rejected a recommendation to discipline a judge on charges that he had improperly issued criminal contempt complaints against two attorneys and failed to recuse himself from the proceedings. The court found that the conduct was negligent rather than willful and thus the charges were not proven by clear and convincing evidence. (Mike Frisch)
By Allison Hayward
Greetings, readers of the Legal Professions Blog! I want to throw out an issue of special relevance to me today. As some of you may know, the Supreme Court released a significant campaign finance decision, and as I happen to be familiar with that area, I've been approached about my opinion. As it happens, I did not work (formally or informally) on the case.
But suppose I did? How much involvement in one of these big controversial decisions is sufficient before a pundit should disclose his or her ties? I've been friends with Jim Bopp (counsel for the winning side) for at least 10 years. That's clearly not enough - a disclosure of that would sound almost silly. If he paid me to consult on the case, then I think as obviously I should tell people that - I'm part of the team and so people considering my views on the case should be able to take that into account. There's a range of situations in between where it is hard to say whether disclosure is important, harmless, or invasive. (For example, having attended a meeting about the case with potential amici.)
I'd like to know what people think - not so much how the rules work, but where the line should be.
Lawyers in Film - Case Studies in Courage as Free Will or Determinism.
Posted by Jeff Lipshaw
Steve Lubet (Northwestern, left so as not to be confused with Ben Kingsley as Gandhi, below right) sent a note around asking about law and lawyers in film, and I don't mean to steal his thunder. I just want to thank him for stirring the thought. My own conception of what a lawyer did was formed not by the film version, or even by seeing the play, but by reading the script of Inherit the Wind when I was in grade school. I happened by coincidence to catch two movies over the last couple days about law and lawyers, and each of them gave me chills again. The second was Gandhi, which I turned on this morning here at my son's apartment in Ann Arbor (part of my one day "Adventures in Putrid," which is a whole 'nother story). More on that below.
The first was A Man for All Seasons, about Sir Thomas More's fight (to the death) over principle with Henry VIII, which happened to be playing on Turner Classic Movies when I saw Steve's e-mail. It is a film version of Robert Bolt's play, and won the Academy Award for Best Picture in 1966, as did Paul Scofield, who played More. More was first and foremost a lawyer, and the plot turns not only on a subtle point of law (not whether he opposes Henry's divorce, but whether there is any evidence of his opposition), but on the place law resides within a world of other forces - in this case, the king's perception of More's implicit but unstated opposition and its effect on the hegemony over the church he seeks to obtain. I am still thinking about the balance of adherence to principle and pragmatism. More dies in the cause of adherence to a principle, yet early on tells his wife Lady Alice (Wendy Hiller), pointing to his neck, "this is not the stuff of which martyrs are made." I think the story is powerful because the principle is so abstract (at least if you are not a Catholic), and thus makes us focus on the adherence in the face of power, as opposed to the principle itself.
In a key scene (left), Henry (Robert Shaw) alternately cajoles and berates More, as friend and Lord Chancellor, for the ironic reason that the king wants More's commitment, not just his acquiescence or compliance. As I watched, I thought about my own experience with CEOs, and the times I felt compelled to hold my ground in the face of a similar tsunami of will, charisma, power, and consequence. How easy to comply! Why do we resist? Is every instance of resistance justified? How do you tell when to hold and when to yield? What constitutes merely feeding the "all lawyers say is 'no'" canard?
You don't have to watch much of the three plus hours of Gandhi to see most of the lawyer stuff (there is a trial in which Trevor Howard plays a judge later in the movie); it is at the beginning when he is actually practicing law, and figuring out how to oppose unjust laws (like the required fingerprinting of all Indians) in South Africa. Gandhi says from the stage in a rally against the law "I too am willing to die in that cause, but there is no cause for which I am willing to kill."
Kant said that the test whether there existed free will in the world was to consider the person who is faced with the choice from a king or prince, on one hand, to die or, on the other, to kill an another innocent person. He concludes that the fact we can even ponder the choice, much less decide in favor of the former, demonstrates the existence of will over mere deterministic cause-and-effect. This is, of course, not a matter of empirical or deductive proof, but of intuition, and if you hold (per a subtle determinist like Hofstadter) that all intuition or appearance of will is an illusion, then we don't get very far. I'd suggest that the illusion might as well be real but that's a whole 'nother story as well.
Where in the law school curriculum do our students get a sense of this real world test? When does a struggling solo practitioner gather the courage to turn aside a matter she knows is vexatious, even though it will put food on the table? When does a general counsel finally elevate principle over loyalty and blow the whistle?
June 26, 2007
If I Were A Carpenter...
...and you were a lawyer, what issues might arise?
A law firm hired carpenters to build a second-story apartment for a lawyer above his firm's law offices. Cost: $39, 000. A lawyer in the firm (the father of the attorney for whom the apartment had been built) represented the carpenters in an unrelated legal matter. The firm billed over $12,000 for legal services and offered to waive the fees in exchange for a waiver of the $39, 000 invoice. Trouble was that the fee invoice "had charged...for over twenty hours that were not itemized or otherwise accounted for." The carpenters filed a complaint with the attorney dispute resolution committee and obtained a mechanic's lien to attach real estate and fixtures at the firm. On appeal of a directed verdict for the law firm, the New Hampshire Supreme Court reversed and remanded :"a rational juror could find that the [defendant law firm] attempted to deceive the plaintiffs by inflating the legal bill...and using the inflated amount to bargain with the plaintiffs." (Mike Frisch)
The Lawyers' Manual on Professsional Conduct has a report on a recent decision of the Maine Supreme Court that provides an interesting analysis of the ethical duties owed to a former client under Rule 1.9. The attorney had represented a client in an accident case that lasted over two years and was settled on the day of jury selection. The lawyer is the cousin of the client's husband. When she asked him to represent her in a prospective divorce action, he declined. She proceeded with a different lawyer. The husband then retained the lawyer-cousin, which resulted in a disqualification motion.
The court affirmed the trial court's disqualification order. Not only had the lawyer received confidential information about the former client's medical history, but "also acquired information about the way in which [she] handled the litigation process." The insights concerning her "ability to testify under oath, her reactions to her adversary, her patience with the protracted process, her ability to accept compromise, her ability to handle stress, and the way in which she relates to her attorney...would be detrimental to her interests in another litigation, particulary in a contentious divorce action " and justified disqualification. (Mike Frisch)
An attorney in South Carolina represented mortgagees in foreclosure cases. He discovered that funds from his escrow account had been misdirected by someone in his office. He sought and received advice on his ethical obligations from a professor and an attorney. He then hired a CPA firm to conduct an audit that confirmed the misapplication of the funds of one client, promptly reimbursed that client in an amount over $80,000 and self-reported the matter to disciplinary counsel.
Disciplinary counsel reviewed the records and found similar conduct with respect to a second client. The retainer arrangements did not permit the lawyer to retain proceeds from the foreclosures for fees or costs. This provision had been repeatedly violated. The underlying problem was found attributable to an experienced legal assistant, who "withheld and caused to be disbursed monies so withheld on her own initiative without instructions from [the lawyer]."
In imposing a consent two-year suspension nunc pro tunc to a previously ordered interim suspension, the South Carolina Supreme Court noted that the self-report had been inaccurate in several respects. However, the inaccuracies were not apparent from the audit report that the lawyer had received and the legal assistant provided sworn testimony in support of the lawyer's position. The inaccuracies were not found to be intentional. The misconduct was found, among other things, to violate the duty to supervise non-lawyer employees and mishandling of entrusted funds. (Mike Frisch)