August 4, 2007
Who (Or Is It Whom) Do You Trust?
An attorney wed after a "brief courtship." The spouse came to work in his law office. She opened up a bank account on which she was sole signatory and diverted advanced fees in that account. She then left abruptly and moved from Virginia to California. The allegations of unethical conduct by the attorney were brought to the attention of the Virginia bar by the wife's divorce lawyer. In the disciplinary case, the bar and the attorney agreed to a reprimand for failure to supervise his spouse. (Mike Frisch)
Get The Message
A New York attorney who had filed a motion for pro hac vice admission in a federal criminal case in Connecticut falsely concealed two prior instances of discipline in New York. He had been censured and formally admonished in the past. The referee found intentional dishonesty because the attorney had to create the document on his word processor and insert the information listing his places of admission. The referee recommended, and the First Department imposed, a six-month suspension, because the attorney did not "get the message" from the earlier disciplinary encounters. (Mike Frisch)
If I Had A Hammer...
I'd use it on my former builder.
The picture of yours truly at right is testimony to the limited ability of the legal system to make the world work as it should. Suffice it to say that my long-since defunct and jailed builder didn't properly seal the foundation and floor joists and skimped on setting the footings for the columns holding up the deck. I am currently trying to find out who his liability insurer was, whether he had an occurrence-based policy, and whether I might be able to make a direct claim on it.
The sledge hammer belongs to the masonry and excavation contractor now on site. I borrowed it to try my hand.
What if a Faculty or a Law Firm Partnership (or a Homeowners' Association) Tried to Climb a Mountain?
Posted by Jeff Lipshaw
As I mentioned in a comment to a Rick Garnett post over at PrawfsBlawg a couple days ago, I love mountain climbing stories, even though my acrophobia is so pronounced I can't imagine doing it (yikes, a panic attack at 16,000 feet!). My first vicarious experience was attending a slide show hosted by one of my college roommates, who climbed Mt. McKinley in the early 1970s as part of the National Outdoor Leadership School. Then one of my former partners from Dykema Gossett in Detroit, Lou Kasischke, was part of the disastrous Everest climb in 1996, and Lou shows up as one of the saner people in Jon Krakauer's Into Thin Air. (Lou sensed trouble lurking, and turned back without reaching the summit, and spent the awful night in his tent, not aware of the problems up above. He did a speaking engagement thing afterwards, in which he talked about the balance of ambition and judgment, particularly when oxygen-deprived at 26,000 feet.)
There's a new book out entitled Forever on the Mountain, by James M. Tabor, about a 1967 climb up Mt. McKinley in which seven climbers died in an Arctic hurricane. The thesis is that at least one cause of the disaster was the nature of the group itself - a hybrid agglomeration of climbers, most of whom did not know each other before the expedition, and very few of whom acknowledged the leadership of the organizer. In particular, one group of three had merged formally into the larger group of nine, and there was friction between the two group leaders. Think about it: the entire group had only one common goal - to get to the summit and back down. Nevertheless, the expedition was rife with personal agendas, feuds, and a lot of bitching and moaning. One example: some members refused to be on ropes with other members.
I can't really talk about faculties except by hearsay (at this point), and I could make the obvious analogies to fractious partner meetings, but I think I will focus on speed bumps. Some of us here in our little self-governed neighborhood thought there was a significant problem with speeding on the street. The board, which consists of five of the thirty-six homeowners, voted to put in seasonal speed bumps. Nobody likes the speed bumps, but some people really hate the speed bumps. But my favorite response was the person who sent around an e-mail questioning the legal authority of the board to install the speed bumps.
My suggestion is that, for certain classes of people - mountain-climbing mega-Alpha males, law firm partners, faculty members, affluent lakeside homeowners - submitting oneself to the leadership of others is the hardest possible task.
August 3, 2007
Gallagher on the Law & Society Aspects of Intellectual Property
Posted by Alan Childress
A little off topic, but current to the afterglow of the Law & Society Association annual meeting in Berlin (which Jeff and others blogged on nicely over at PrawfsBlawg), is this new book just out: Intellectual Property, edited by Golden Gate's Bill Gallagher (right). It collects essays from lots of great writers in the area and is part of Austin Sarat's international essay series on law and society, with Ashgate Press. Here is the order info link, and the book's description:
This book brings together articles by leading international scholars from diverse disciplinary perspectives who focus on the legal, social and cultural dimensions of intellectual properties - including patents, copyrights, trademarks, trade secrets and rights of publicity. These articles employ a creatively eclectic approach to the study of intellectual property law and policy viewed through the lenses of traditional doctrinal analysis, historical perspectives, critical cultural study, and empirical examinations of intellectual property in action. The volume also directs critical attention to the significance of intellectual property in contemporary processes of globalization and political economy.
Also newly published in the field is David Clark's Encyclopedia of Law and Society: American and Global Perspectives (Sage), previously blogged upon here. I contributed the entry on "lawyers and the legal profession."
A Rose By Any Other Name Still Has Thorns
Posted by Alan Childress
If you appreciate the ironies of some names, you' d like the email sent to us by Jackson Missippi lawyer, and apparent LPB reader, Jane Hicks (who is anything but). There was a murder investigation she read about this week. She wondered whether this is the "best name for a murderer yet?":
EAST POINT, Ga. - The owner of a car dealership has been accused of killing two employees because they kept asking for pay raises.Rolandas Milinavicius has been charged with two counts of murder in the shooting deaths of Inga Contreras, 25, and Martynas Simokaitis, 28.
Obviously from the Cruella De Vil school of naming. Of course, as a former GC to a big company, Jeff may feel that there are fewer better motives for offing someone than repeated salary requests. [And some Republicans would point out that this is the inevitable secondary effect of raising the minimum wage. Guns don't kill people; the minimum wage does.] At least I am confident that Jeff would feel that it is justifiable homicide when a GC finds out that his or her CEO has been blogging under a thinly veiled pseudonym about the company and its rivals, thereby in effect taunting the SEC to "come and get me."
My reply to Jane is that Rolandas is beat hands down by the murder trial and conviction in New Orleans four years ago of a rap artist who was born Corey Miller. The headline was: "C-Murder Found Guilty Of Second-Degree Murder, Receives Life Sentence." In the law biz, we call that Res Ipsa Loquitur. C-'s post-conviction life has been a roller coaster, including having the conviction overturned and then reinstated. If he does get a new trial, I understand that adopting the nom de rap of C-Manslaughter is not so compelling in the artiste world, but it may help with a jury here in the real world. I think he got that message: a 2006 Rap News Network story refers to him as "Corey Miller, the jailed rapper formerly known as C-Murder...." Take that, Roger Nelson and Gordon Sumner. Face it: the real world just has a bias against anyone whose little friends could knock on the front door and ask, "Good morning Mrs. Murder. Can C- come out and play?"
In fact, eventually C-'s conviction was again overturned in 2006 and he was freed, though he was still awaiting trial in a different attempted murder case. He has changed his name, keeping the C-. He is now named C-Miller. C-Miller, or different?
Of course, in 1989, former Georgia Congressman Pat Swindall was convicted of perjury, essentially of lying about his involvement in a drug-money laundering scheme. He was prosecuted by Bob Barr. And the best named federal judges, from a positive standpoint, have got to be Judge William Wayne Justice of the E.D. Texas, and Fifth Circuit legend the late John Minor Wisdom.
You are overeducated and still immature if you giggle every time you see a home security sign on the front lawn of someone protected by the Masada Security Co. of Tampa (I've seen signs in New Orleans, and giggled). "Thank God you answered! There's an intruder in my home! Send the police right away!" Uhr, "Ma'am, our premium deluxe service consists of suggesting that at this point you simply commit suicide." Timeless advice. In a similar vein, I tell people that my yard on Carthage Street does not seem to grow a thing, and then laugh, and they stare at me blanklike. I once saw ads for Amelia Earhart Luggage. Bad branding. I must have unknowingly used that brand while flying this summer.
Unrelated, the Minor Wisdom blog by Ray Ward has a nice post on the Monty Hall Paradox. See if you can figure it out -- very counterintuitive bar bet.
Imagine that you’re on a game show like Let’s Make a Deal. The host, Monty Hall, presents you with three doors. Behind one is a new car; behind the other two are goats. You choose door # 1. Monty then opens door # 3, behind which is a goat. Monty then offers you the chance to switch your choice to door # 2. Should you switch, or should you stick with door # 1?
Most people answer that it doesn’t make a difference, thinking that the odds are 50:50 that the new car is behind either remaining door. That’s the wrong answer. ... If you switch, you double your chances of winning the new car.
Ray is from New Orleans and has eclectic musical tastes; I bet he listens to C-Murder.
August 1, 2007
My Bank's Customer Representative Must Be Channeling Judge Easterbrook in Hill v. Gateway 2000 - "But You Agreed To It..."
Posted by Jeff Lipshaw
I'm not going to identify the bank because I suppose it's possible we will still have an amicable resolution of this terribly trivial but annoying little problem of a $67.65 finance charge on a credit card.
We have had a "BANK" Mastercard for years, with fairly high volumes, and we have never run a finance charge. That is to say, we pay the entire balance every month. Last month we had a $12,000 balance, mainly because we charged the cost of the moving company that transported us from Indianapolis to Cambridge. For reasons too complicated to explain, my wife paid all but $385. As I read the fine print in on the back of the statement, which no doubt reflects the agreement (which of course nobody ever reads), BANK waives the finance charges if the balance is paid off. But in this particular situation, we missed by $385, thus incurring a $67.65 charge on all $12,000, or roughly 210% interest on the unpaid $385. I'm sure the reason is that if you are paying minimum balances, the additional interest on the small amount you paid shouldn't be a big deal. But nobody in his or her right mind would run up a $12,000 balance and then pay all but a trivial amount (i.e., $385) so as to lose the waiver on the finance charge for the $11,615 that was actually paid.
After going through all the alternatives with a "supervisor," the bottom line is that nobody can simply waive the charge. (Getting my APR reduced from 18% to 13% on balances I never run just won't cut it.) I then posed the following business proposition: either waive the charge, or I will pay it and then immediately cancel all of my BANK credit cards, the impact of which is that BANK will lose a lot more than $67.
The person on the telephone must have just read Hill v. Gateway 2000, Judge Easterbrook's paean to the efficiency of unread consumer agreements, because more than once she told me "but you agreed to the finance charge when you signed the agreement." Being the legal scholar I am, I said, "let's not debate the metaphysical issue whether I ever agreed to pay 210% interest because of the flaw in the way your agreement matches my use of the card, but let's just look at this from a common sense standpoint. Your choice: do you want my $67, even if I owe it to you technically speaking, or do you want my future business?" All of which was lost on this particular supervisor.
I left a message for the media department and tried sending an e-mail to the general counsel of BANK, but it got bounced.
UPDATE: I did get through to the GC of BANK, and he/she did get the problem corrected almost immediately!!!!! I take back everything I said.
July 31, 2007
An attorney who also served as an elected public official entered an appearence in a criminal case but did not appear for trial. The attorney had learned that the prosecutor intended to stet the case, advised the client and attempted unsucessfully to arrange for substitute counsel. The client wanted the deal and decided to proceed without counsel. The attorney was in another city for a legislative conference.
The trial judge issued a show cause and assigned a special prosecutor rather than sanction the attorney by means of summary contempt. The judge thereafter vacated the order and converted the matter into a summary contempt proceeding. The Maryland Court of Appeals held that "the court against which a direct contempt is committed can punish that contempt summarily at the time it is committed or immediately after the proceeding." If it does not, the court "foregoes its opportunity to proceed summarily." Thus, the trial court erred in imposing sanctions for summary contempt, requiring a remand.
Former Baker & McKenzie Chairman is the First Woman G8 Finance Minister
I happened to see a reference in the New York Times this morning about Christine Lagarde, who has been appointed the Minister of Finance in the government of French President Nicolas Sarkozy. I met her a number of years ago at a general counsel symposium held by Baker & McKenzie in Chicago, when she was the global chairman of the firm.
July 30, 2007
Candor In Employment Process
An attorney who had failed to disclose that a prior employment was in her spouse's law office when applying for a position with a federal agency was suspended for 90 days by the Maryland Court of Appeals. The spouse provided a glowing reference and a competing employment offer. As a result, the attorney received a job offer at a higher starting salary than would have otherwise been given. The attorney did disclose the relationship on other documents "completed for purposes unrelated to [the attorney's] actual hire..."
When the non-disclosure was discovered, the agency did not take disciplinary action, but referred the matter for a bar investigation. However, the lawyer is no longer employed at the agency. The court held that "deceit can be based not only on overt misrepresentation but on concealment of material facts." The "concealment...impeded the ability of the [agency] to question and evaluate the bona fides of what was proferred as a competing offer." (Mike Frisch)
In-House Counsel Disbarred
The Maryland Court of Appeals recently disbarred an attorney convicted on a plea of guilty to misprison of felony. The attorney had been employed as in-house counsel for an entity known as Global Recruitment and Immigration Services, Inc. He was aware of widespread forgeries on immigration documents, including forgery of his signature. He also was aware that the purported employer identified in hundreds of applications "did not have the capacity to hire such large numbers of immigrants." This had occured over a four year period.
The court noted that its precedents require disbarment for intentional dishonest conduct absent compelling extenuating circumstances. While the mitigation evidence presented was "commendable" it did not meet the standards for extenuating circumstances sufficient to avoid disbarment. (Mike Frisch)
Reciprocal Discipline In Massachusetts
An attorney who had been suspended in New Hampshire was also admitted in Massachusetts. The attorney failed to advise Massachusetts authorities of the suspension. As a result, the suspension was not given retroactive effect in Massachusetts. The opinion is linked here.
In an unrelated reciprocal discipline matter, the Massachusetts Supreme Judicial Court held that it was appropriate to increase the sanction over that imposed by the disciplining court (in this case the District of Columbia) where the misconduct warranted a greater sanction ("...our task is not to replicate the sanction imposed in another jurisdiction but, rather, to mete out the sanction appropriate in this jurisdiction.") The case involved neglect and failure to provide competent representation by a lawyer with a long disciplinary history. I am glad to see that I'm not the only person who thinks that D.C. is lenient to a fault for such misconduct. (Mike Frisch)
Client? What Client?
An attorney cannot comply with ethical obligations to a client if the attorney fails to recognize the existence of the lawyer-client relationship. An attorney was recently reprimanded by the Maine Board of Bar Overseers for misconduct in representing a client in a real estate matter where the lawyer contended that he had only represented the lending bank. The board found that "there [was] no question that, by an objective standard, that both the lawyer and client could and should reasonably understand and agree that [the attorney] had undertaken the representation of [the client]." The failure of the attorney to acknowledge this fact "made it impossible for him to meet or fulfill all of the other obligations which he owes to a client pursuant to the Maine Bar Rules." (Mike Frisch)
Attacking Advice Of Former Firm Requires Disqualification
A doctor who had had his hospital privileges revoked brought suit against the hospital. One of the purported reasons for the hospital's action was that the doctor had failed to report a malpractice lawsuit against him and others. He acknowleged the non-report but asserted that he had followed the advice of his counsel in that regard.
After the malpractice case settled, one of the partners of the attorney who gave the advice left the firm. The departed attorney now represents the hospital in the revocation of privileges case. The attorney professes no memory of the maplractice case. The Texas Supreme Court ordered the attorney and his firm disqualified: "... even if the departing attorneys have no connection with a former client of a former firm, they cannot take on a case against that client if it involves questioning the validity of the earlier representation." Disqualification is required whether or not the attorney in the malpractice case admits giving the advice asserted by the doctor. (Mike Frisch)