September 8, 2007
Jailhouse Lawyering Not Unauthorized Practice
The Ohio Supreme Court, in a 5-4 decision, dismissed a complaint of unauthorized practice of law against a prison inmate who is serving a lengthy sentence. The Supreme Court Board on the Unauthorized Practice of Law found that the prisoner had "conducted legal research, offered legal advice, and prepared and signed legal documents on behalf of many other inmates." The majority opinion notes the futility of imposing sanctions as the threat of contempt will likely not deter an inmate who may never secure his release. An opinion concurring only in the result aptly notes: "the UPL Board's interest in regulating the legal profession is overridden by the need for prison inmates to have help in obtaining access to courts." The court's summary of the holding, with a link to the opinions, is linked here. (Mike Frisch)
More On Metadata Mining
The D. C. Bar's ethics committee has issued an opinion on mining metadata from documents provided by an opposing party. It is improper to mine only when the attorney has actual knowledge that so doing will reveal confidential or protected information. Where uncertain, counsel should check with the provider of the document before subjecting the document to mining.
Note that D.C.'s version of Rule 4.4 varies from the ABA Model Rule, which impacts significantly on the analysis of this issue. (Mike Frisch)
September 7, 2007
Pressing Claim Without Evidence Violates Rule 3.1
An attorney represented a client in an arbitration matter that resulted in an adverse decision. At the client's insistence, he filed a motion to vacate alleging fraud, corruption or undue means on the part of the arbitrator. Thereafter, he persisted in pressing the claim despite the failure of the client to produce evidence to support the contention.
Bar disciplinary charges were brought for instituting or maintaining a frivolous claim in violation of Rule 3.1. The Connecticut Appellate Court affirmed the finding of misconduct. The initial claim was made in good faith based on the client's claims and thud did not run afoul of the rule. However, the lawyer crossed the line by not withdrawing the contention after the client had refused to provide a promised affidavit. The court also resolved an inconsistency in prior case law by holding that it reviews bar cases under a clearly erroneous standard: the "distinction between clearly erroneous and substantial evidence is not an academic one." A concurring opinion would affirm on narrower grounds, expressing concern about the suggestion that an attorney cannot proceed with a claim absent a client affidavit.(Mike Frisch)
More On Client File Issues
The Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility has issued a formal opinion setting forth in detail ethical responsibilities relating to the maintenance and retention of client files, with specific reference to retention policies for particular types of cases. The opinion gives guidance concerning "opening, closing or taking other action with respect to the contents of a client's file." The web site of the Disciplinary Board provides a summary of the opinion, which supersedes prior inconsistent Pennsylvania ethics opinions and should be of great interest to the Pennsylvania Bar. (Mike Frisch)
The Florida Bar News reports a recent decision by the Bar's Board of Governors that lawyer-to-lawyer advertising must comply with the Bar's general advertising regulations. The Board also voted in favor of a "moratorium on enforcing the rules on lawyer-to-lawyer ads" while it seeks clarification from the Florida Supreme Court. (Mike Frisch)
Ex Parte Contact With Doctor Creates No Tort Liability
A person employed as a "roughneck" by an offshore drilling company claimed damages from a slip and fall. His primary care physician sent him to a second doctor for an evaluation. The second doctor was deposed in the litigation and offered opinions on the injuries and the extent of the employee's ability to return to work.
After the deposition but prior to trial, the deposed doctor was contacted ex parte by defense counsel and provided information that affected his trial testimony. The employee sued that doctor, alleging that the ex parte contact breached the physician-patient privilege. The trial court agreed and awarded damages for emotional distress.
On appeal, the Louisiana Supreme Court reversed , holding that "The privilege is designed to keep a physician from divulging information concerning a patient, not to prevent him from receiving information relating to a patient." While the doctor's trial testimony had upset the employee, "the damages he claims are those that are the result of the inherent characteristics of the adversarial nature of trial- in every trial a party must expect that, at some point, someone will dispute what he or she says or claims...most, if not all, litigants who lose at trial suffer some form of mental anguish or emotional distress." Damages, if any, were not a result of the ex parte communications. (Mike Frisch)
September 6, 2007
A recently elected justice of the Wisconsin Supreme Court is the subject of an ethics complaint, according to a press report in the Wisconsin State Journal. The charges involve alleged misconduct as a circuit court judge by presiding over matters involving a bank where the judge's spouse was a compensated director. (Mike Frisch)
Fee Collection for Contingent Fee Is Unauthorized Practice
The South Carolina Supreme Court adopted the report of a special referee finding that a non-lawyer operating a business called Refunds Plus engaged in unauthorized prectice by entering into a contingency agreement to attempt to collect a judgment: "The practical effect of [the] agreement is that the [non-lawyer] was to be paid a fee to collect the debt." The court held that such activity involves the unauthorized practice of law, citing cases from several jurisdictions in support of that conclusion. (Mike Frisch)
D.C. Bar Link to Proposed New Disciplinary Processes and Procedures
Of course, Mike has already foreshadowed this issue in detail, and I hope he will have more to say as it plays out, but here is part of an email sent out by the D.C. Bar:
The District of Columbia Court of Appeals has issued Notice No. M-230-07, regarding the court’s proposal to make substantial amendments to D.C. Bar Rule XI, which concerns disciplinary proceedings for lawyers under the court’s disciplinary jurisdiction. A red-line and a “clean” version of Rule XI are available on the court’s Web site.
The link to this announcement and further information is here. [Alan Childress]
Can the recent spate of bar ethics cases against criminal prosecutors be fairly characterized as a trend? The Illinois ARDC recently filed charges against the State's Attorney for Wayne County for alleged failure to disclose information relating to the credibility of a state cooperating witness, falsely representing to the court the nature of a prior conviction in order to avoid impeachment of a state witness, permitting false and misleading testimony and making false statements in closing argument. The ensuing conviction was overturned.
This case may be worth watching for people (myself included) who have a sense that criminal prosecutors have been treated with special kindness and consideration in the bar disciplinary process. (Mike Frisch)
Attorneys' Fee Award Upheld
A corporation that publishes a car modification magazine hired a person to sell advertising space. The employee executed a confidentiality and non-competetion agreement with a fee shifting/indemnification clause. The employee was terminated and the corporation filed suit against him for disclosing confidential information.
A Delaware Chancellor found that the employee had breached the agreement and that the corporation was entitled the full legal fees and costs. On appeal, the Delaware Supreme Court affirmed the fee award. Although the corporation achieved "limited trial success ...[the employee's] refusal to cooperate at every stage of the proceedings outweighed [the corporation's] limited trial success and contributed significantly to the excessive number of hours [the corporation] spent litigating the case." The Chancellor properly considered the factors listed in Rule 1.5 and did not abuse his discretion in awarding the full amount of fees and expenses. (Mike Frisch)
Corporate Counsel Symposium
On October 4, Georgetown Law's Journal of Legal Ethics and the Center for the Study of the Legal Profession are co-sponsoring a symposium on Corporate Compliance: The Role of Company Counsel. The panel discussions will feature a combination of practice-oriented and academic views relating to significant emerging issues faced by corporate counsel. The schedule is set forth below. The public is welcome to attend.
8:30-9:00 am Continental Breakfast
9:00-9:15 am Introductory Remarks
9:15-10:45 am Panel 1: Conflicting Duties: Lessons from the KPMG Prosecution
Presentation: Professor Sarah Duggin, Catholic University Law School,
Former General Counsel, Amtrak and
University of Pennsylvania Health System
Panelists: Mary Kennard, General Counsel, American University
Sol Glasner, General Counsel, MITRE Corporation
Richard Janis, Janis, Schuelke & Wechsler
Irv Nathan, Arnold & Porter
11:00-12:30pm Panel 2: Gatekeepers Inside Out
Presentation: Professor Sung Hui Kim, Southwestern Law School,
Former General Counsel, Red Bull
Panelists: Carol Rakatansky, Associate General Counsel, Sallie Mae
Robert Lupone, General Counsel, Siemens Corporation
Ann Kappler, Partner, WilmerHale,
Former General Counsel, Fannie Mae
12:30–1:45 pm Lunch Provided for Participants
**** RSVP Requested for Individuals Planning to Attend Lunch.
Please e-mail Leslie at email@example.com. ****
2:00-3:30 pm Panel 3: Corporate In-House Counsel in the Age of Internal Compliance
Presentation: Professor Tanina Rostain, New York Law School,
Co-Director, Program on Professional Values and Practice
Panelists: Kathleen Barlow, Vice President, Marsh USA
Ann Straw, Director, Corporate Compliance,
Scott Killingsworth, Powell Goldstein
September 5, 2007
The Arizona bar has opined on issues relating to maintaining client files solely in an electronic format, concluding that "[i]n appropriate cases, a lawyer may keep current and closed files as electronic images in an attempt to maintain a paperless law practice or to more economically store files." The lawyer cannot destroy original documents without client consent but may destroy copies of documents after conversion to electronic format unless "the lawyer has reason to know that the client wants the lawyer to retain them."
Speaking of file storage, here's a summary of recently imposed discipline from the web page of the Virginia Bar:
"On August 21, 2007, the Virginia State Bar Disciplinary Board revoked Ellen Frances Ericsson’s license to practice law. Ms. Ericsson closed her law practice in May 2006 but maintained client files at an off-site storage facility. In January 2007 the cabinets containing client files were publicly auctioned due to Ms. Ericsson’s failure to pay rent for the storage unit. The failure to pay rent and the subsequent auction constituted abandonment of client files and failure to protect private and confidential client information. Ms. Ericsson consented to the revocation." (Mike Frisch)
No Malpractice In Withdrawal For Health Reasons
A lawyer who had represented a client in a construction lawsuit suffered a heart attack five years into the litigation. As a result, a lawyer assigned to assist in the case left the lawyer's firm. Seven weeks before the scheduled trial, the lawyer moved to withdraw, citing his health problems. The client obtained new counsel, who sought to continue the trial (denied with leave to renew on the scheduled trial date). The case settled prior to the scheduled trial.
The client then sued the lawyer for malpractice. The North Carolina Court of Appeals held that the lawyer was ethically obligated to move to withdraw: "Because [the lawyer] asserted a proper basis and moved to withdraw, [his] conduct did not breach [his] fiduciary duty owed to plaintiff." Further, seeking withdrawal seven weeks prior to the scheduled trial due to health reasons complied with ethical mandates of North Carolina Rule 1.16, notwithstanding the contrary expert opinion offered in opposition to the motion for summary judgment. (Mike Frisch)
Teaching Your Own Case - Perspectives?
Posted by Jeff Lipshaw (cross-posted at MoneyLaw)
In the spirit of the late Wayne Barnett, my tax professor at Stanford, whose introductory tax course was subtitled "Great Cases I Have Lost," I have decided to drop one of the cases on the "what is a security issue?" from the Choi & Pritchard Securities Regulation case book, and instead teach Great Lakes Chemical Corp. v. Monsanto, Inc. on the question whether an LLC interest can be a security under the federal securities laws.
This case is of some pedagogical note. It was in the fifth edition of the Klein, Ramseyer, & Bainbridge Business Associations case book, and Choi & Pritchard mention it in their teacher's manual. For me, however, it is something akin to dissecting the recent Appalachian State v. Michigan football game, because I was the general counsel of Great Lakes Chemical at the time the case was filed, and was intimately involved in the decision to file it as a federal securities, rather than a state common law fraud, claim. Indeed, I was involved in the decision to file it as a fraud claim at all, rather than merely a breach of contract case. And, although the case ultimately settled, on this particular issue we took a sound butt-kicking (all the more frustrating because the federal court indicated on the record at the close of argument that he thought there was a well-pled fraud claim if the interest was a security, and later a Delaware chancery judge booted it as a fraud claim under state law based on disclaimer language in the agreement).
So, a little like Tom Sawyer listening to his own eulogy, I can't help wanting now to engage in the objective and academic post-mortem of something that was a very real part of my life.
I am curious, however, about the perspective of those out there who have actually taught their own cases. Is it a good idea? How do the students react? Does it help bridge the theory-practice divide?
Practical Training & the "Gap" - Redux
Posted by Jeff Lipshaw
Austen Parrish (right, Southwestern, which has the coolest faculty pictures) has a take over at PrawfsBlawg on the apparent divergence between the desire, on one hand, for more practical training of lawyers ("doing a better job in law school to prepare lawyers to practice") versus, on the other hand, the theoretical trend in scholarship and academic hiring.
Maybe I'm just feeling persnickety (not about Austen's post, just the subject) after three weeks of extremely practical activity, like settling into a new office, changing my driver's license, getting my cars re-registered, hanging pictures, installing Elfa shelves in the closets, putting up shades, prepping for a new class, and getting residential parking permits (hence my absence from the blog for all intents and cliches), but I think we understand the problem, and the answer is: IT WILL NEVER BE SOLVED!
That is, however, not a cry of hopelessness; indeed, I think there is more hopelessness that springs from thinking that problems of polarities are solvable rather than manageable. And they are manageable. I recommend a neat little book entitled Polarity Management: Identifying and Managing Unsolvable Problems, by Barry Johnson. Here is the thesis. Whenever we want an institution or an organization to satisfy two mutual interdependent but polar values (think individual initiative versus teamwork; teaching versus scholarship; planning versus action; stability versus change), we can't solve the problem to one pole or the other because we will get not only the good things about that poles but the bad things as well. Organizations have a natural tendency to react to the negative aspects of one pole by shifting to the other. But now we are conscious of that tendency and work to restrain the negative aspects of movement to the other pole.
In short, there's no silver bullet. Law schools, for the foreseeable future, are going to have to work the polarities between theory and practice, between teaching and scholarship, between inside and outside, without the debilitating illusion that there is some kind of algorithmic solution out there somewhere just waiting to be discovered. And where better than in an academic institution, when you realize you can't get an answer, merely always to be living the question?
September 4, 2007
Impairment as Aggravation
We are accustomed to reading bar discipline cases where the attorney's mental or physical health is considered as a mitigating factor in determining sanction. A recent hearing board report from Illinois concludes that the attorney engaged in misconduct in a series of matters that would merit a one-year suspension. The lawyer was evaluated by a doctor and a neuropsychologist retained by the Illinois ARDC. The neuropsychologist administered a variety of tests and found impairment of problem-solving and strategizing skills. The attorney had "organizational difficulties" that were reflected in the testing and "took telephone calls during the interview relating to a real estate closing" which did not impress the testing doctor.
While the hearing board concluded that the misconduct was not the product of a mental condition or impairment, it found that the attorney's "diagnosed mental condition is....a concern which warrants a suspension until further order of court" and states that "we would not feel comfortable returning [the attorney] to the practice of law without a convincing demonstration that his conditions have been successfully treated and his mental acuity is such that he can adhere to the rules of professional conduct." Thus, it is recommended that the suspension continue until a court-ordered reinstatement.
Is it fair to impose a greater suspension for a mental condition that did not cause the misconduct? It's a valid question, and one I struggled with in a bar discipline case (In re Stone) that took over a decade to reach an entirely unsatisfying result. (Mike Frisch)
New MJP Rule For Connecticut
Connecticut has adopted a new rule governing multijurisdictional practice that will take effect on January 1, 2008. The Association of Corporate Counsel has prepared a summary of the new rule that also provides links to information regarding the status of MJP rules around the country. (Mike Frisch)
Recovery Merits Stayed Suspension Recommendation
The problem of an appropriate disciplinary response to illegal conduct involving drug use absent a showing that abuse resulted in incompetent client representation was recently addressed by a hearing committee of the Louisiana Attorney Discipline Board. The case involved an attorney detained in a parked car found in possession of hydrocodone, oxycodone and xanax. He successfully completed a federal pre-trial diversion program, entered a recovery program and transferred to disability inactive status.
The lawyer and disciplinary counsel submitted a petition for consent discipline that was rejected by the Louisiana Supreme Court. Formal charges were filed. Finding the case "one of the more difficult cases [we] have had to consider," the hearing committee was "deeply impressed" with the lawyer's rehabilitation efforts from the time of his arrest. The committee recommends a stayed three year suspension conditioned on continuing recovery and "careful suervision" by the bar's Lawyers Assistance Program and Alcoholics Anonymous. (Mike Frisch)
September 2, 2007
A notice posted on the web page of the Pennsylvania Disciplinary Board notes that legislation enacted effective January 1, 2007 may require lawyers who engage in lobbying activities to register with the state. Further, "attorneys who engage as lobbyists are on notice that they have no claim of lawyer/client privilege in this area." (Mike Frisch)