Saturday, August 18, 2007
Posted by Alan Childress
William Hilyerd (Univ. of Louisville), shown right, has posted to SSRN his article, "Hi Superman, I'm a Lawyer: A Guide to Attorneys (& Other Legal Professionals) Portrayed in American Comic Books: 1910-2007." This article is recommended for the comic-and-lawyer-loving Ray Diamond at Tulane. Ray originally put us onto the Attorney Man comic book. Here is the abstract of Hilyerd's new article:
Since comic books were first introduced in the 1930s, they have provided entertainment for children and adults alike. Most American males (and a significant portion of American females) have read comic books at some point in their lives, most when they were in grade school. In addition to providing young adults with their first glimpse of costumed heroes, comic books have also provided these same young adults with their first look at the legal profession. From the earliest days of comic books and strips through the present, attorneys have been prominently featured in American comic books.
The article begins with a discussion of the history of illustrated artwork and how that artwork evolved first into newspaper comic strips then into comic books. Next, comic strip and comic book attorneys from the early part of the 20th Century are identified and discussed. The introduction of Superman touched off the Golden Age of comic books. Part four discusses attorney characters which appeared during this Golden Age (1938-1946) and provides some background information on many of these characters. Part five discusses the decline of the reputation of comic books during the 1940s and 1950s and socio/legal attacks on comic books during the period.
By the middle of the 1950s, comic book publishers switched back to superheroes from the horror and suspense books. The switch back to superheroes brought with it a new crop of attorneys. Part six of the article identifies all of the recurring attorneys who appeared during this resurgence of interest in comic books, known as the Silver Age (1956-1969). Part seven provides discusses all of the attorney characters who appeared from 1970 through 1985. Part eight finishes the history of attorneys in comic books by identifying all of the attorneys who have had recurring roles in comic books since 1985.
Friday, August 17, 2007
An accountant in Delaware was charged with unauthorized practice of law for, among other things, drafting wills and trusts and rendering related legal advice. He used a business arrangement with two lawyers to circumvent a consent cease and desist order issued by the Delaware Supreme Court. The court thereafter held the accountant in contempt based on findings of its Board on the Unauthorized Practice of Law that he had violated the cease and desist order.
Sanction: disgorgement of fees for legal services. Further, the cease and desist order remains "in full force and effect. Any further violations...will be sanctioned in an escalated manner that is commensurate with such repeat offenses." (Mike Frisch)
Interim suspension is a powerful and important tool to protect the public from ongoing harm during the pendancy of disciplinary charges. The North Dakota Supreme Court ordered such a suspension six days after Disciplinary Counsel filed an application against attorney Robert M. Light stating that Mr. Light had several complaints of missed appointments and was generally unavailable to clients, as well as being subject to an investigation for "crimes of reckless endangerment, terrorizing and carrying a concealed firearm." There are also allegations of escrow account violations. The order will remain in effect until further court order pending final disposition of the ethics charges. (Mike Frisch)
A defendant convicted of first-degree premeditated murder was sentenced to life without possibility of release. The conviction was affirmed on appeal. After his post-conviction claim of ineffective assistance of counsel was rejected by the trial court without a hearing, he appealed to the Minnesota Supreme Court.
The court held that the claim that appellate counsel failed to raise ineffective assistance on direct appeal required an evidentiary hearing. The defendant was offered a plea deal during trial. He claimed that "his counsel misled him into believing that under the worst case scenerio, if convicted, he would be eligible for release after 30 years..." The court concluded that "inaccurate or misleading factual statements" that lead a defendant to reject a plea offer can constitute ineffective assistance of counsel. The case was remanded for a hearing to determine whether appellate counsel provided ineffective assistance by failing to raise the claim. If the trial court so holds, the defendant will get the deal. (Mike Frisch)
A client sought advice from a law firm about ending his business relationship with a partner and their lottery business. As a result of the advice, the client was sued for breach of fiduciary duty and found liable. He then sued the law firm for malpractice and obtained a 1.6 million dollar judgment, which was vacated in part and reduced by the trial court.
On appeal, the Nebraska Supreme Court reinstated the jury verdict and full judgment. The court rejected claims that the statute of limitations had run, that there was no proximate cause and that the allegedly negligent advice involved an unsettled point of law. (Mike Frisch)
Thursday, August 16, 2007
The New York Appellate Division, First Judicial Department, decided a case today characterized by sharp words between the majority and dissenting judges. The case involved enforcement of a judgment against the Palestinian Authority and the PLO for the murder of an American citizen and his Israeli wife. The plaintiffs noticed the deposition of an attorney who was the registered foreign agent of the Authority. The trial court ordered that the deposition "take place" by January 10, 2007.
Plaintiff's counsel sought a January 9 deposition, but the deponent was not available over an extended lunch period. At the January 10 deposition, Plaintiffs' counsel claimed that the deponent spoke in an "excruciatingly slow manner" and the deposition dragged into the evening when the court reporter was unavailable. The court reversed the trial judge's order denying an extension of time to complete the deposition, stating that the dissent's "willingness to hold plaintiff's lawyer accountable for the court stenographer's inability to continue working" was "unprecedented, and an unreasonable and unrealistic expectation and expansion of a lawyer's responsibility."
The dissenter did not take the point lightly: "The majority stoops to caricature... plaintiff's counsel made a desultory, tardy and at best irresponsible effort to complete the deposition...he was entirely and inexcusably to blame for the deposition not concluding before the expiration of the deadline...the majority commits an egregious error in adopting as fact the accusation of plaintiff's counsel" as to the claim that the deponent strung the process out to prevent the completion of the deposition. (MIke Frisch)
Does bad advice or an unsuccessful legal strategy amount to a failure to provide competent representation? No, according to a recent Hearing Board Report from Illinois. The attorney had been retained in a complex criminal case where the client faced the possibility of deportation. The client discharged the lawyer prior to the conclusion of the criminal case. In rejecting charges of a Rule 1.1 violation, the hearing board noted that "litigation requires strategic planning and the failure of that plan does not necessarily amount to incompetent representation...[the attorney] made several questionable decisions [but] made legal decisions based on his legal experience and the client's expressed wished [sic]" The hearing board found that the lawyer had charged an excessive fee and failed to advise the client that he had paid a referral fee.
The title of this post? The hearing board chair was John Steed III. (Mike Frisch)
Foundation Press has announced that an update memo is now out with new cases and legislation since the 2006 publication of the 9th edition of Professional Responsibility, Cases and Problems, by Tom Morgan (Geo. Wash.) and Ron Rotunda (Geo. Mason). Contact an account manager (or call 1-877-888-1330) if you need the book or the memo. The update memo is also posted on the book's website. Here is the book's detailed Table of Contents in a pdf file: 17001.pdf. [Alan Childress]
The State Bar Association of North Dakota has proposed a new rule that would require that members of its bar file an annual statement that confirms that the attorney has private clients and, if so, whether the attorney has or intends to obtain malpractice insurance. The North Dakota Supreme Court has put the proposed rule out for comments through September 12. (Mike Frisch)
Wednesday, August 15, 2007
A recently filed Hearing Report in Massachusetts recommends that disciplinary charges be dismissed where the attorney had advised his client to tape record conversations with her abusive spouse without his knowledge or consent. The panel found that the accused attorney was unaware that taping without consent violates Massachusetts law and had failed to research the point. As a result, the client was charged with the crime and filed the bar complaint. The panel made every favorable finding that it possibly could to avoid a finding of misconduct, for example: "Wife did not appear overly concerned when the criminal proceeding was brought against her...[she] was desperate enough to tape record her husband's abusive behavior even if...properly advised..." The panel found the wife "completely unbelievable" and acknowledged that the lawyer "technically violated" two ethics rules.
It is worth noting that the most publicized case in Massachusetts bar history involved attorneys who lured a former law clerk to jurisdictions that permit one-party taping because of the Massachusetts law at issue here. I find it rather hard to believe that any Massachusetts lawyer would be ignorant of that case. The hearing panel wants to absolve a lawyer, so it simply accepts the lawyer's claim of ignorance and attacks the complainant. Even the grudging acknowledgment that the conduct violated ethics rules is no impediment to dismissal. (Mike Frisch)
An Assistant Attorney General in Utah suffered from post-traumatic stress disorder in the wake of the unexpected death of her daughter-in-law during childbirth. She claimed that the AG's office "actively discouraged her from coming back to work by placing numerous impediments in the way of her return" after a leave of absence. She sued under the Family Medical Leave Act.
The Utah Supreme Court affirmed the decision of the district court to dismiss. The U.S. Supreme Court has held that the family-care provisions of the act "were intended to protect women from gender-based discrimination in the workplace" but did not resolve whether self-care (at issue here) was abrogated by sovereign immunity. The court held that post-traumatic stress is gender neutral and that the state is thus immune from suit. (Mike Frisch)
A motion to disqualify counsel was recently denied by the federal district court in Maine. The movant had alleged that the lawyer had gained confidential information in a prior representation in a joint defense "over the rights to a gourmet pasta sauce." The court concluded that the representation was 'completely unrelated" to the present action. The second claim was that the lawyer had received information concerning the movant's assets and had "necessarily gleaned insight into the way in which [movant] responds in the course of defending himself in litigation."
The court found that movant's financial status was a matter of public knowledge and that generalized information about the movant's ability to deal with the stress of litigation was an insufficient basis for disqualification. (Mike Frisch)
To my loyal reader (thanks so much, Arielle):
After two years of being a nomad, I've settled into my office at Suffolk and our home in Cambridge. Just about everything is unpacked. The computer works. I have re-shelved books that have not seen the light of day since June, 2005. There's permanence in the air. (This is not an exaggeration. When I walked into the office, I had this overwhelming surge of emotion.)
I'm here in a great suite whose members include Elizabeth Trujillo, just arrived from Detroit, and Jessica Silbey, law and culture maven extraordinaire. I am afraid, however, I have raised the decibel readings.
Just to keep this mildly on topic, one of the things I did Monday was to have my driver's license changed at the Registry of Motor Vehicles, as it is called here in the State of Fredonia (the name being changed to protect the innocent). I had an experience that must be similar to what lay people feel about the rules of evidence. To get your driver's license, you need four pieces of identification, one with a signature, and something that proves you reside in Fredonia. For some reason unbeknownst to me, a bank statement sent to your home qualifies for the latter, but a paycheck stub with the same information does not. I had my Indiana driver's license, my passport, a forty-five year old original of my Social Security Card, my Suffolk id card, and the aforementioned pay stub. I waited in line for the de rigeur forty-five minutes, got all the way through the process, had my picture taken, and then the clerk (very nice, by the way) told me my pay stub didn't qualify. A manager came over. He said, "that's no good; it's just a pay stub." I wasn't sure what the difference was, hypothetically speaking, about lying to a bank about where you lived, versus lying to your employer. In fact, it seemed to me the pay stub was more reliable, since it was REAL MONEY that got mailed to me.
Now I did manage to secure a Fredonia driver's license due to another piece of data that I happened to have in my bag, which was a bank account statement that had my name, but was addressed to my office in the law school. So the state was willing to issue me a driver's license showing that I reside in my office. Hmm. Stand in line again or take the driver's license? What would you do?
The Lawyers' Manual on Professional Conduct reports an interesting decision from the Eastern District of Pennsylvania in a case involving alleged trademark infringement and misappropriation of trade secrets. A law firm representing the defendants searched the Internet for information about the plaintiff. The firm went to the plaintiffs web page and, using a program called the Wayback Machine, looked at an earlier version of the page. The firm then printed copies of the pages that were used to their client's benefit in the litigation.
The plaintiffs sued the law firm on a theory of improper hacking. The court held that the use of the program to view expired web pages and review of the achived pages did not create tort or other liability. The fact that a web page malfunction allowed the firm to see materials that the owner of the page had taken steps to block from public access was immaterial, as the firm had not stolen passwords or engaged in other misconduct to view the pages at issue.
The title of this post will only make sense to people old enough to remember the classic Rocky & Bullwinkle Show. (Mike Frisch)
Tuesday, August 14, 2007
A senior judge who has a private mediation service may not advertise in publications directed to the non-lawyer public, according to a recent opinion of the Judicial Ethics Advisory Commission of Florida.
Anyone out there think this opinion might run afoul of the First Amendment? (Mike Frisch)
The Illinois Review Board has recommended a four month suspension of an attorney who has practiced for 34 years without any prior discipline. The attorney failed to communicate an offer of settlement to his client, apparently because the offer was "insufficient to pay a significant portion of the attorneys fees incurred..." The hearing panel rejected the suggestion that a fee-shifting statute deprived the client of the authority to control the settlement decision.
The board rejected a hearing panel recommendation for more severe discipline. The hearing panel had found that the accused lawyer had lied at the hearing in claiming that the offer had been presented to and rejected by the client. The board found that the attorney had corrected himself on this claim on the second hearing day (apparently several months after the first day) and that the correction negated the earlier testimony. The board believes that lawyers in bar discipline cases should be encouraged to correct false testimony and that a finding of an aggravating factor here would discourage such corrections/modifications by accused lawyers. A second count of similar alleged misconduct was dismissed because the client died prior to the hearing. (Mike Frisch)
Monday, August 13, 2007
South Carolina seems to do a land office business in magistrate misconduct. Maybe they just do a particularly good job in policing it. In a recent case, a retired magistrate was publicly reprimanded for interceding on behalf of Lee County (because its a "poor county")in connection with two tickets issued against county trucks. The magistrate caused the court records to falsely reflect that the driver appeared for trial and was found not guilty. The magistrate acknowledged that this information was incorrect "but maintained this had been a common practice in his court." (Mike Frisch)
A contract attorney may receive "additional compensation in the form of discretionary bonuses or a share of firm-wide net profits." However, such an agreement may implicate the "division of fee" ethics rules, according to a recent informal opinion of the Washington State Bar Association. (Mike Frisch)
May a lawyer disclose cofidential information to the personal representative of a deceased client? Yes, if the attorney believes that disclosure would further the clients' interests, accoding to a recent ethics opinion from Maine. Otherwise, disclosure is permissible only if the personal representative obtains a court order requiring disclosure of the information. (Mike Frisch)
Sunday, August 12, 2007
Posted by Jeff Lipshaw
The first thing I noticed running through my RSS feeds this morning was that Aretha Franklin canceled her gig at what I used to know as Pine Knob (now the DTE Energy Verizon Comcast United Delta Music Pavilion or some such) outside Detroit because it was too hot.
Our family feels quite close to the Queen of Soul. She lived in Bloomfield Hills about a mile from us. We never saw her. But my wife's name is Alene Franklin, and for a long time she was in the phone book as "A. Franklin" so we got several calls a week looking for Aretha.
And as long as I am on a completely random and off-topic roll, unlike Sheryl Crow (whose damn song has been rolling through my head for three days now), we now have digital. We have finally taken up residence in Cambridge, and the cable guys were out yesterday. What's more, in honor of our arriving, the state of Massachusetts declared yesterday and today "sales tax free" (this is no joke), so I joined the throng at Costco and did what I have always wanted to do - roll in, grab a couple LCD televisions, and take 'em through the checkout line.
I was watching some old classics on Comcast "On Demand" free movies last night, and noticed something that I had missed before at the beginning of Steve McQueen version of "The Thomas Crown Affair," which should be a lesson to all M&A lawyers counseling their clients. Right at the beginning, as he's putting the heist into motion, Thomas is selling a "Tommy Crown property" to some buyers who are just so thrilled to get it. As he's walking out the room, Thomas says, arrogantly, "you overpaid." And all M&A professionals know that the best insurance against lawsuits is a happy profitable buyer.