September 1, 2007
Credit Card Misuse Draws Suspension
The Ohio Supreme Court suspended an attorney for two years, with the second year stayed, for using his company credit card after his authorization had been revoked. The attorney used the card to pay for a lengthy stay at an Akron Comfort Inn. When the problem surfaced, he paid with a check drawn on insufficient funds. He then resigned from his job, repaid the debt, and pleaded guilty to felony theft and misuse of a credit card. The conviction will be vacated if he successfully completes a diversion program. a dissent favored a two-year suspension without any stay, concluding that the evidence showed a pattern of dishonest conduct. (Mike Frisch)
August 31, 2007
No Legal Recourse For Honor Violation
A student at the University of Nebraska College of Law was dismissed after an honors committee determined that he had engaged in four instances of plagiarism. The papers at issue contained virtually no original work of the student and the committee found ample evidence that the student should have known that the papers were plagiarized.
The student filed suit under the Nebraska Administrative Procedure Act alleging discriminatory treatment. The Nebraska Supreme Court affirmed the dismissal of the suit, concluding that neither the honors committee or the law school dean was an agency, which is a necessary predicate to a suit under the APA.
Waiver Not Extended
A company retained opinion counsel to render a series of three opinions regarding possible patent infringement. When a claim of infringement was later brought, it provided to the opposing counsel the opinions along with the associated work product and offered opinion counsel for deposition in order to negate the claim of bad faith infringement. The trial court concluded that the waiver of attorney-client privilege with respect to opinion counsel extended to trial counsel and ordered discovery access to trial court's confidential communications and work product.
The United States Court of Appeals for the Federal Circuit held that the privilege had not been waived with respect to trial counsel. Opinion and trial counsel had operated independently of each other: "...we conclude that the significantly differing functions of trial counsel and opinion counsel advises against extending the waiver to trial counsel." Trial counsel, unlike opinion counsel, is "engaged in an adversarial process." However, the court did "not purport to set out an absolute rule." (Mike Frisch)
Too Harsh A Sanction?
As readers know, I rarely find attorney discipline too harsh. A case decided today by the Iowa Supreme Court does strike me as unduly punitive under the facts and circumstances described by the court. The attorney was admitted in 1952. He had a single prior finding of misconduct for an improper business transaction with a client in 1994.
The attorney took on an estate matter. At the time, he "was in the process of limiting his clientele in contemplation of his retirement. His long-time secretary, or legal assistant, also left her employ during this time, and [the attorney] employed a new secretary." His petition for payment included a claim for duplicate services. The misconduct "likely was due to miscommunication between [the attorney] and his secretary during a time when [the attorney] was working at home after recuperation from heart surgery."
Noting that this "[w]as not the first Iowa attorney to collect an illegal or excessive fee in a probate proceeding," and that the range of sanctions for prior violations has included public censure, the court suspended the attorney for sixty days.
After 55 years of practice, it seems to me that lawyer in ill health in transition to retirement might fairly be spared the indignity of suspension. An order requiring repayment along with a public censure might have been appropriate. (Mike Frisch)
August 30, 2007
Honor Among Lawyers
A lawyer who represented a client in a dog bite case was charged with failure to notify prior counsel (who had filed a lien on any judgment) that he had filed a motion with the court for release of funds representing costs and fees, making false statements to the court and misappropriation of funds to which the first attorney was entitled. A Michigan hearing panel found the violations and imposed a one-year suspension.
On appeal of the Grievance Administrator, the Michigan Attorney Disciplinary Board concluded that the appropriate sanction was license revocation:"it is untenable to give [the lawyer] a "break" simply because he stole money belonging to another lawyer rather than money belonging to a client." Stealing is stealing and merits the ultimate sanction. The lawyer had a lengthy history of prior discipline and had failed to respond to the bar investigation. (Mike Frisch)
Avoiding/Dealing with Bar Complaints
Attached is a link to a guest post I did at the request of Susan Cartier Liebel on tips to avoid bar complaints and dealing with complaints filed against a lawyer. My experience is that lawyers who engage in a litigation oriented practice representing individual clients will likely encounter a bar investigation during the course of their career. Hopefully there is something of value in my thoughts on avoiding such complaints and dealing with this unpleasant problem when one gets that dreaded letter marked "Confidential" from the Bar Counsel. (Mike Frisch)
August 29, 2007
If You Order It, You Shall Pay For It
Does a lawyer who fails to pay a court reporter for a transcript commit an ethical violation? Yes, according to a recent hearing board report from Colorado. The testimony established that it is custom and practice in Colorado for the attorney to assume responsibility for payment. The attorney had a yearly income from his law practice of $7,000. A public censure was imposed. (Mike Frisch)
Soft Drink Lawyers and Leadership
Posted by Jeff Lipshaw
I am reminded every day by the bumper sticker on a car parked along our street (between our house and the T station in Porter Square) that my new governor is Deval Patrick (left), the former general counsel of The Coca-Cola Company. So I was impressed when I heard the other day that one of the possible replacements for Alberto Gonzales was Larry D. Thompson (right), currently the general counsel of Pepsico, Inc.
Both, I suspect, have impressive bona fides. And there are plenty of other companies with minority GCs (DuPont and Deere, just to name two) so that can't be it. (Note to self: would I ask that question if they were both Jewish or both women? Something to think about.) One is a Democrat; one is a Republican, so that's not it. I would not have thought that the food, drink, and entertainment industries had particular need for "political" lawyers (versus, say, a defense contractor). Is this just a funny coincidence? Or does the road to political power go through the cola wars?
Kritzer on 'Not Lawyering Up' Due to Income and Kind of Case: Some Counterintuitive Empirical Results In the US and Five Other Legal Cultures
Posted by Alan Childress
Herbert Kritzer (Wm. Mitchell) has posted to SSRN's LAW & SOC.: LEGAL PROF. journal his paper, "To Lawyer, or Not to Lawyer, Is That the Question?" (August 2007). Here is Bert's abstract:
A central aspect of much of the debate over access to justice is the cost of legal services. The presumption of most participants in the debate is that individuals of limited or modest means do not obtain legal assistance because they cannot afford the cost of that assistance. The question I consider in this paper is whether income is a major factor in the decision to obtain the assistance of a qualified legal professional. Drawing upon data from five different countries (the United States, England and Wales, Canada, Australia, and Japan), I examine the relationship between income and using a legal professional. The results are remarkably consistent across the five countries: income has relatively little relationship with the decision to use a legal professional to deal with a dispute or other legal need. The decision to use a lawyer appears to be much more a function of the nature of the dispute. Even those who could afford to retain a lawyer frequently make the decision to forego that assistance. The analysis suggests that those considering access to justice issues need to grapple with the more general issues of how those with legal needs, regardless of the resources they have available, evaluate the costs and benefits of hiring a lawyer.
August 28, 2007
Ebay Misconduct Merits Reprimand
As a regular Ebay shopper, I was interested to see a recent disciplinary case from Delaware imposing a public reprimand of an attorney who engaged in "an ill-conceived plan to get together with a friend, sell paintings to each other, make claims against Pay Pal and then pursue legal actions to recover not only the Money Back Guarantee, but treble damages and attorney's fees." The attorney was the artist who rendered the paintings that were sold to his friend for almost $3,000. His explanation: the Pay Pal agreement was a contract of adhesion and Pay Pal's practices "deserved scrutiny." He was remorseful for the misconduct, which justified the non-suspensory sanction. (Mike Frisch)
Encyclopedia Entry on Lawyers and Comparative Legal Professions Is Now Out in PDF
Posted by Alan Childress
Here is a link to download my 5000-word entry on "Lawyers" which appears in volume two of the fresh-out Encyclopedia of Law and Society: American and Global Perspectives, edited by David Clark at Willamette and published by Sage: Download lawyers_entry.pdf
New Orleans Can Be Boring For the Willing Unadventurous
Posted by Alan Childress
As the second anniversary of Katrina comes tomorrow, the national media will understandably focus on what has yet to be done. The deficit is a national embarrassment. What they never mention is how much of the city and suburbs is back to "normal," whatever that means for a unique place like New Orleans. The sense that all of the city is a post-war zone scares off prospective residents, students, and business, often unfairly because so many of the places they would inhabit are quite nice. One of our new profs, Elizabeth Townsend-Gard, writes vividly on her blog about her experience in Uptown New Orleans making friends and making groceries. She allowed me to guest-post a response about the forgotten but convenient suburbia where I live, which no one talks about. My point is that if prospective students want a Tulane (or Loyola) experience that is not about rebuilding, they can find that too. Here I reprint my post with hopes that people will recognize that Katrina fatigue in some parts of the metro area should not scare away anyone who otherwise finds their opportunity to exist here.
New Orleans Also Can Be Boring Like Suburban Virginia
I asked Elizabeth to let me guest-post on her blog this different take on New Orleans culture and community. I am a prof, since 1988, at Tulane. I don’t disagree with Elizabeth’s view of the charm and sense of neighborhood she is experiencing in uptown New Orleans. But it is not the community I know and love. Instead, I live in a suburb 10-15 minutes away from school that looks a lot like the familiar generics of my youth in Indiana, Ohio, and Mississippi, or even my grown-up days outside San Francisco and, last year when I taught at GW, near DC. That’s right: I am dull. I like my neighborhood to be equally dull. Hell, I don’t even know the name of the neighbor to the right of me. She seems nice enough, but she never calls me darlin’. (Marge, aged 91 and to the other right, does in fact call me that, but she also once climbed my fence to chop down my somehow-offending banana plant.)
Elizabeth’s sense of neighborhood is all well and good, and certainly available for students and others interested in Tulane or Loyola. Yet I wanted to say that the few of us who prefer a place that feels like our unadventurous youth in the Burbs will find a familiar home in or near New Orleans, too, if that is what they want. We have cookie cutter malls (that literally cut cookies) and Applebee’s, a Wal-Mart and 20-screen theatre (well, it serves dacquiris), Laser Tag and Chuck E Cheese. A bowling alley down the street has no rock band playing live, unlike the one in Mid-city. Plenty of students and a few profs find their sweet spot to be a quick drive out here at the end of the Earhart Expressway.
I have lived out in the boonies in apartments with big pools and houses with big backyards. I like the fact that it is well above sea level (as is, BTW, Tulane Law School and areas nearby); our area came back three weeks after Katrina and quickly returned, fortunately or FWIW, to normal. (Well, the Taco Bell became a Starbucks.) If anyone wants to avoid charm and uniqueness in their Tulane existence, I assure them that boring is available too.
Truth be told, my community has a great local restaurant called Zea’s and a sushi joint that allow me to avoid Applebee’s when the mood strikes. And the two-century-old oak tree shading my backyard is as big and charming as anything in Audubon Park. But the charm is largely accidental: Zea’s was built out of a Toddle House, and the realtor first showed me a house with a large magnolia tree -- but then assured me the owners could have it chopped down for me (perhaps borrowing Marge’s machete). My little Burb produced Ellen DeGeneres and David Vitter. Plus I admit my kids went uptown for part of their education -- great schooling at St. George’s (where Angelina Jolie and Brad Pitt send some of their kids) and Newcomb Nursery (a worldclass preschool) before high school in Metairie -- so I am not unmindful of the strengths of the community Elizabeth has joined. I just wanted to say that all sorts of ways of life are welcome in Greater New Orleans. Even the predictable one I know best.
Welcome to New Orleans, Elizabeth! Sorry about the Chuck E Cheese.
ERISA Claim Against Law Firm Remanded
An employee of a New York law firm rose from a position of secretary to law firm partner. She decided to leave to start her own firm with another firm alumnus. She then sought entitlement to benefits under two of the firm's pension plans. The firm claimed that she was excluded from participation as she was a "salaried employee" and not a shareholder or officer. She then sought administrative relief and eventually filed suit against her former firm. The federal district court granted summary judgment to the firm, holding that the administrative decision foreclosed the claim that she was a partner and that the claims had been waived for failure to exhaust administrative remedies.
On appeal, the United States Court of Appeals for the Second Circuit vacated the district court's decision and remanded for further proceedings. The district court erred by not reviewing the plan administrator's decision de novo. The plan administrators (the firm officers and shareholders) "explicitly refused to decide [the departed attorney's] claim...a non-existent interpretation cannot be deemed a reasonable one..." Further, there was no showing that the attorney had knowingly and voluntarily waived her claims. (Mike Frisch)
Censure For Ex Parte Order
A county district judge was censured for vacating another judge's order of contempt for failure to pay child support without the knowledge or presence of the party that had obtained the order. "It is well established that one...judge may not ordinarily modify, overrule, or change the judgment or order of another...judge previously entered in the same case."
The censured judge had granted the motion to strike the contempt despite the fact that the motion had not been served. The North Carolina Supreme Court rejected the contention that the judge acted in good faith because he believed that the contemnor did not have notice of the contempt proceedings: "the issue here concerns [the judge's] conduct, not his motives...[h]is action in setting aside [the prior judge's] order in an ex parte proceeding enabled Mr. Moore to evade his child support obligations. Mr. Moore subsequently vanished, causing problems to the other party, who had obtained a court order in her favor." The judge's supposed good faith was no defense to the charges of misconduct. (Mike Frisch)
A Boatload Of Trouble
The Illinois ARDC recently filed ethics charges that, if proven, tell a sad tale of the disintegration of the life of a lawyer admitted in 1998. Count One deals with a court-ordered eviction of the lawyer from his home. He attempted to flee and resisted arrest. A search revealed a bag of cannabis. He later failed to appear in court and an arrest warrant was issued. After he pled guilty to misdemeanor drug possession, he failed to notify the bar as required. Count Two involved police responded to a call of shots being fired and drugs sold in the lawyer's apartment. Police recovered cannibis, cocaine and cash. Count Three alleges that the attorney was observed and stopped in a stolen car, did not have a valid driver's license and possessed cannabis. Count Four resulted from police observing the attorney smoking "a hand-rolled cigarette containing cannabis" in a car. He could not account for $1,354 in his possession. The "cash contained trace amounts of narcotics." The alleged misconduct took place over a period of approximately two years.
As noted, these are charges that have not been proven. One can only hope that this lawyer can turn his life around. Illinois is a jurisdiction that considers accords substantial weight to addiction recovery in determining appropriate discipline where the addiction caused the misconduct. (Mike Frisch)
August 27, 2007
Finding Of Frivolity Upheld
An attorney who had been reprimanded by the Connecticut Statewide Grievance Commission for violating Rule 3.1 appealed to the Connecticut Appellate Court. The attorney had alleged that opposing counsel and the arbitrator in a litigated matter had engaged in fraud and collusion. The court held that the finding of misconduct was not clearly erroneous: the basis was "not that he alleged partiality or corruption...but rather that he persisted in that allegation despite not having a scintilla of evidence to support it." An allegation made in good faith in reliance on the claims of the client may violate the rule if the lawyer persists in the claim without finding supporting evidence. The court affirmed the reprimand. A concurring opinion would uphold the reprimand on a narrower ground, as the lawyer persisted despite the client's instruction to abandon the claim (Mike Frisch)
A Maryland lawyer and his law firm represented a client in a federal employment discrimination lawsuit. The employer initially prevailed and the client filed a chapter 7 bankruptcy, listing the lawyer as an unsecured nonpriority creditor owed $190,000 for legal services. The bankrutcy court granted a discharge. The lawyer continued to represent the client for a time thereafter but eventually withdrew.
The lawyer then sent notice of his attorney's lien to the client and the employer asserting a lien on "any judgment, award or settlement." The client, acting pro se, prevailed on appeal and secured a remand. A jury awarded her damages of $126,006. The client sought an award of fees and costs and the lawyer sought to intervene. Both requests were denied. The lawyer then sued in state circuit court asserting a lien against the judgment.
The Maryland Court of Appeals held that the retainer agreement did not extinguish the statutory right to the lien, which "takes effect upon the commencement of representation." Further, the statutory "attorney's lien survives a bankruptcy discharge even if no notice of the intent to claim a lien was given prior to the bankruptcy..." A lien is an in rem action that can be asserted against the judgment. The in personam claim of the lawyer was discharged by the bankruptcy but not the in rem claim against the award. Finally, the client's due process rights were not violated.The case was remanded to figure out the math. (Mike Frisch)