Friday, September 14, 2007
Posted by Jeff Lipshaw
Just several yards from my cocoon-like office here in Suite 250 of the Suffolk University Law School, grips and gaffers are preparing one of our classrooms as a set for Bachelor No. 2, a movie starring Kate Hudson, Dane Cook, and Alec Baldwin. (Recall that our library was featured in The Departed.) It's not too glamorous yet, just lots of lights and wires and the grips and gaffers. I'm hanging out in the hallway, seeing if my resemblance to Owen Fiss can get me discovered. Son James, however, is coming in later this afternoon, and as you can see from the photo on the left, he bears a remarkable resemblance to a popular young actor. Could it be so long Stanford, hello Hollywood?
And just the other day, I happened to notice that my property and real estate transaction prof from nigh on thirty years ago, Paul Goldstein, had written a novel "Errors and Omissions" that had the featured spot in the window of the Suffolk Bookstore. I'm too cheap to buy a book written by somebody I know, so we ordered it from the library. I read the first chapter last night, and something in me kept resisting the idea that it's actually pretty good. I'm just hoping there's no graphic sex scenes. Not from a guy who taught us fee simple absolute. (By the way, the customer comments on Amazon read a lot like my teaching evaluations: some love it, some despise it, and a couple think he has promise but isn't there yet.)
The National Law Journal has an article on a subject near and dear to my heart-- the difficulty in locating public information concerning bar discipline on the web pages of many state bars. The best jurisdiction, in my opinion, is Illinois, which posts the charges and reports within days. I have expressed my concern in earlier posts about web access in D.C., where the charges and hearing committee reports are concealed from public view. One consequence is that you can check a lawyer's disciplinary history on line after the filing of public charges and the hearing report and not find the truth. Let's hope this piece generates a reaction that serves the public interest. (Mike Frisch)
A father-son dispute over the ownership rights to photographs taken by Sam Shaw -- "including the famous photograph of Marilyn Monroe with her skirt blowing upward"-- took eight years to resolve in a wide array of actions that were settled in 2002. An attorney represented son Larry Shaw from the inception under a $200 per hour written fee agreement. Another attorney represented Larry's sisters in the litigation at a $300 hourly rate with a clause that doubled the fee if he obtained "some or all" of the contested images. After the settlement, both lawyers sought to enforce a charging lien against the photographs under New York law.
On appeal of a Supreme Court order granting the charging lien, the First Department affirmed. Larry Shaw "never denied receipt of [the lawyer's] bills and never protested the amounts..." establishing that the fee was reasonable. The lawyer for the sisters "did not send a bill... until only a few weeks before his petition [and] failed to establish an account stated." The bill had been vigorously disputed. Thus, the issue of reasonableness of the fee was properly referred to a special master.
Some of the photos had been damaged. The lien attached to the insurance proceeds paid as a result as the "proceeds...are the images in a different form." (Mike Frisch)
Thursday, September 13, 2007
Posted by Nancy Rapoport.
I've blogged, on my own site, about the Boyd School of Law (see here for my latest post about Boyd). Well, I'm on the faculty appointments committee this year, and Jeff very kindly said that I'm allowed to post our ad. Please see below for our ad, and please consider applying.
An attorney who was disbarred in Kansas as a result of misconduct in three matters sought to avoid reciprocal discipline in New York by presenting evidence of medical problems and contending that the violations were a result of disorganization, not dishonesty. The Second Department rejected the contentions: "New York courts cannot act as appellate courts for decisions made in sister state jurisdictions."
Having expended more effort than I care to remember fighting institutional attempts in D.C. to second-guess such court orders(see links here here and here), I find this approach refreshing. (Mike Frisch)
The ABA has scheduled an October 3 program on one the most important emerging topics in professional regulation--the impact of Rules 5.5 (unauthorized practice) and 8.5 (choice of disciplinary law) on modern legal practice. In speaking to bar groups, it is my impression that the significance of these rules is little understood by practicioners. Hopefully, this program will heighten awareness of the problems of unauthorized multistate practice as well as the importance of determining which ethics rule applies to a particular situation. Mistaken understanding of either or both rules can result in unwanted professional embarrassment or worse. (Mike Frisch)
Posted by Alan Childress
Not at all on topic for this blog, but I thought Jeff should know what he is missing here in southern Louisiana by moving to Boston. My favorite recent election story involves a son who, 3 days after becoming old enough, entered the council race against . . . his incumbent father, John Young. I saw the kid, and he really is that, being interviewed on the news, and he kept answering No Comment to every legitimate question. I would say that the ridiculous, ignorant smirk on his face would be disqualifying, but hey what do I know about voters' election preferences. Anyway, he looked like his frat brothers must have hazed him into running for something, especially against dear old dad.
But wait! There's more! In a nearby senate race, the incumbent Julie Quinn faces the ex-wife of her now-boyfriend. The ex-wife also sued a local Catholic archbishop, which is usually not a great campaign strategy around here.
But wait! More!! The ex-wife is the mother of the son running against his dad, her ex-husband Young, whose girlfirend is the incumbent the ex is opposing.
As Bill Murray's character says in Tootsie, 'That is one nutty hospital.' In the case of this southern gothic family, I cannot wait till Thanksgiving dinner.
Posted by Jeff Lipshaw
That's the suggestion of Michelle Morris, Lecturer in Law and Research Librarian at the University of Virginia Law School in a piece over at the Yale Law Journal Pocket Part in a reaction to "L'affaire Trustafarian" involving Boalt and Hastings after the Virginia Tech tragedy.
Alan and I both expressed views similar to those of Michelle back when the issue was hot - law students need to understand that they become lawyers, and are held to the standard of lawyers when they get to law school, not just when they graduate. The question back then was whether the Boalt student at the center of the controversy would be obliged to disclose the contretemps in his or her bar application. Michelle goes two steps further by suggesting not only the bar application but the law school application require the disclosure of any screen names or aliases used by the applicant.
I'm not sure how I feel about the suggestion. Requiring disclosure of online activity while one was a law student, at least after having been given the kind of warning some schools are now giving (I believe including here at Suffolk), does not seem too draconian to me. But I'm not sure it's fair to go back to what one did as an eighteen year old, and in any event, do the costs outweigh the benefits of that?
A recent opinion of the Massachusetts Committee on Judicial Ethics (Opinion 2007-7, Aug. 16, 2007) states that a judge who receives information ex parte from defense counsel on a motion to withdraw has no duty to disclose the information to the prosecutor or successor judge. The communication--concerning possible false testimony and obstruction of justice--was "not only authorized but also required by law. Because the record is sealed, the information is not available to the public. Since the rules require that a different judge hear the trial [the inquiring judge has] no further judicial duties with regard to the case." (Mike Frisch)
Wednesday, September 12, 2007
In an action brought against a hospital and several doctors, the plaintiff alleged negligent failure to treat a stroke. The defendants obtained a court order for a neuropsychological evaluation. Plaintiff insisted on counsel's presence at the exam and authority to record the exam on videotape. After a hearing, the trial court refused both requests.
On appeal, the Florida Third District Court of Appeal quashed the order of the trial court. Counsel had "previously disrupted a neuropsychological evaluation of [this client]" by continually objecting to the doctor's questions and instructing the client not to answer. However, Florida law requires both a case-specific basis to exclude counsel (clearly present here) and a finding that no other qualified doctor in the area would perform the exam under such conditions. The defendants failed to meet the second prong because their doctor had testified that others doctors would allow the presence of counsel "solely for financial reasons." (Mike Frisch)
Disciplinary cases where the state high court reduces the proposed sanction can provide insight into the standards for ethical practice of that court. A recent example may be found in a decision of the Oklahoma Supreme Court reducing a proposed suspension of two years and a day (which the court calls tantamount to disbarment) to a 60 day slap on the wrist.
The case involves two instances of misconduct in handling entrusted funds. In one, the attorney was obligated to hold $6,500 in trust. The account balance fell to $31.31. The money was used for operating expenses. The attorney admitted and apologized for the misconduct, blaming his inattention and a miscommunication with office staff. Court: "There is no evidence that [the attorney] purposely deprived [the client] of the funds by deceit or fraud or that [the attorney] intentionally inflicted on [the client] grave economic harm." Apparently, the fact that the attorney "transferred the money from the trust account to his operating account and used the money for personal expenses" is insufficient to establish misappropriation.
The second case also involved escrowed funds. The court found that "the accounting records associated with the trust account were very poorly kept...it is difficult to accurately state figures disbursed or transferred from the account." Applying the standard quoted above, the court found the evidence did not establish misappropriation.
One dissenting judge would have imposed public reprimand; another "would impose greater discipline."
Take away points: 1. The standards for establishing misappropriation by Oklahoma lawyers appear to equate intentional misconduct (which the court says merits severe discipline) with theft or fraud. My understanding has been that intentional violations could be proved with establishing evil intent. 2. Bad record keeping may help the lawyer avoid disbarment when the bar is looking into potential escrow violations. To me, encouraging sloppy records has always been a bad policy.
To further explore the question of whether bad or no records may make it more difficult to discipline a lawyer for trust account irregularities, here's a recent informal admonition from the District of Columbia Bar Counsel. (Mike Frisch)
Tuesday, September 11, 2007
I strongly believe that open access to information about bar disciplinary proceedings is necessary in order to determine whether self-regulation serves the public interest. The web page of the North Dakota Supreme Court provides a statement of issues and the briefs for a bar discipline case that is scheduled for oral argument today. I would love to see other state high courts adopt this approach, and thus enable the public to get a fuller sense of cases and issues than can be gleaned from review of court opinions. In the case, both sides have appealed from a recommended 60 day suspension. (Mike Frisch)
The South Carolina Supreme Court disbarred an attorney convicted of murder and a firearms offense. According to a press report, the attorney had been arrested for the crime that occured outside an adult night club named Chastity's after he had been found "naked in one of the Champagne rooms." He denied being in the vicinity of the incident. The attorney had practiced in the areas of estates and financial planning. He was sentenced to a 30 year prison term for the murder and five years for the weapons offense. (Mike Frisch)
Posted by Jeff Lipshaw
Over at Legal Theory Blog, in a discussion of a piece on the possibility of there being (or not being) a secular basis for morality, Larry Solum included the following personal note:
[I]t is my belief that even in scholarly discourse civility is a moral and political virtue. Thus, I attempt (not always sucessfully) to apply the "principle of charity in interpretation" to the views of those with whom I disagree. For example, I think it would be disrespectful to equate all religious views with the views of fanatics who reject the role of reason in discourse. (For more context, my views have been influenced by Rawls on the virtue of civility in political liberalism.)
I agree that both civility and charity of interpretation are virtues to be adopted (defeasibly, by the way, and in those instances in which interpretation is necessary), but there is a consequential lesson for lawyers here as well. One of the great failings of advocates and counselors is not to understand the other side, and, often, that the other side's position may be more compelling than one's own. The principle of charitable interpretation makes one a better lawyer-advocate for being able to understand and respond to the heart of an argument, and it makes one a better lawyer-counselor for being able to help a client get beyond her own passion and see the world realistically.
Monday, September 10, 2007
Posted by Jeff Lipshaw
When I saw Brian Leiter's teaser title "The Worst Jurisprudential Article of the Year?" with nothing but a link to the "winner" (the complete discussion is on our sister blog "Brian Leiter's Legal Philosophy Blog"), I have to admit a moment of "pang" wondering if it would be something I wrote. But it really should be qualified by what I suspect is the sample set: jurisprudential articles written by people who are moderately important in the field. Thus disqualifying me!
Brian's target is a thirteen page essay by Steven D. Smith at San Diego (right), the author of Law's Quandary, a book I very much enjoyed for its probing of the "beingness" or ontology of the law. In short, Law's Quandary asked this question: if we are all now legal realists, understanding the instrumental aspect of law, and positivists, understanding that law is what courts, legislatures, and other authorities say it is, why do lawyers still argue about the results as though the LAW were immanent and yet simply to be discovered and applied to the present dispute?
I had not read the essay, but did quickly after reading the review. Perhaps I was inclined to be more charitable because Law's Quandary gave me pleasure, because the new piece was short, and because my own view of short thought pieces posted on SSRN is that they are not papers, but pieces in the spirit of Brian's introduction to his blog: "'thinking out loud' in the sense that they won't be polished or heavily revised, and thus no doubt replete with errors and misunderstandings." Indeed, the line blurs between a very thoughtful blog post, and a quick thought piece on SSRN, and spending too much time on which is "scholarship" is probably just the kind of angel-counting we'd all like to avoid.
So here is my more charitable take on what Professor Smith had to say, with a nod to what I think made Professor Leiter uncomfortable (although he certainly doesn't need me to help him do that!) Outside of legal philosophy, there is a sense among some, similar to what Professor Smith described, that analytical philosophy of the last century is arid and fails to get at what attract many to philosophy in the first place - addressing ultimate questions. I think that's the simple point being made in the piece, and it is a call for legal philosophers to, in the words of Holmes' flourish: "connect...with the universe and catch an echo of the infinite." Just because we are lawyers does not exclude us from the human condition of self-reference, and making sense of the world. Coming from a quarter century of practice, I don't think a little reflection on meta-issues is such a bad thing every once in a while - particularly when one is sorting through significant pragmatic issues of the legal and the ethical. No less a legal philosopher than Martha Nussbaum (Flawed Foundations: A Philosophical Critique of (a Particular Type of ) Economics, 64 U. Chi. L. Rev. 1197, 1214 (1997)) had this to say about the Posnerian rejection of moral philosophy:
Aristotle thought that there was conceptual progress in political thought. For when we sit down and sort through all the good and bad arguments our major predecessors have made, we will learn a lot: “Some of these things have been said by many people over a long period of time, others by a few distinguished people; it is reasonable to suppose that none of them has missed the target totally, but each has gotten something or even a lot of things right.” Furthermore, we will also be enabled to avoid their errors. Finally, perhaps, we will ourselves make a little progress beyond them. Aristotle also noticed, however, that the passion for science and simplicity frequently lead highly intelligent people into conceptual confusion and an impoverished view of the human world. So he did not think that progress was inevitable, and one of his great arguments for reading was that it could remind us of conceptual complexities we might otherwise efface, in our zeal to make life more tractable than it is.
Science does not have to be impoverished; in fact, it must not be, if it is to deliver perspicuous descriptions, adequate predictions, and, perhaps, helpful normative recommendations. But Law and Economics is currently still somewhat impoverished. It is impoverished because it did not proceed in the way that Aristotle recommends, sitting down with the arguments of eminent predecessors to see what can be learned from their years of labor. Let us hope that this process will soon begin. There would seem to be no better place for it to begin than in Chicago.
A piece from my friend Susan Neiman, (left) author of Evil in Modern Thought, director of the Einstein Forum in Potsdam, and most recently a member of the Institute for Advanced Study School of Social Science in Princeton, underscores both the invitation to do a little philosophizing and Professor Leiter's concern about it. She relates this from a fellow grad student: "Asked on a tour of prospective graduate programs why he'd chosen philosophy, he answered 'Well, like most people I read Nietzsche and Sartre in high school and just wanted to go on.' His interlocutor, a hard-nosed defender of classic analytic philosophy, responded,'Yes, but most people grow out of that.'" Her point was that the traditional philosophy curriculum causes "many students simply [to] take up subjects like history or politics or literature, which have clearer connections to the questions about meaning, and how to live, that sent them to philosophy."
Nevertheless, and this is where I think Professor Leiter has a point, it's a walking a fine line to focus, particularly in teaching, on the search for meaning, and not propose an answer that has the sniff of dogmatism to it. Professor Neiman says: "George W. Bush's faith that Providence will right what all the odds say will go wrong is a terrifying example of the sort of thing that gave Providence a bad name. If we reject such faith - or even more thoughtful versions of faith tout court - how can we ask our students to take 18th century appeals seriously?" I was uncomfortable with the suggestion at the end of Law's Quandary that the hypothetical author of the law is really an Author, and Justice Scalia, in his First Things review of the book, chided Professor Smith for beating around the bush; in so many words, "just say the Author is God!"
To summarize. I did not take Professor Smith's piece as a work of jurisprudential scholarship as much as a cri de coeur about what might meaningful in the field of legal philosophy. That seems to me raises a valid point. On the other hand, I don't have much of an answer for somebody who insists that he or she has an insight into the mind of God on the specifics of His or Her personal intervention into the shaping of the positive law. I don't think that was where Professor Smith was headed, but I do understand concerns around making this a religious exercise, rather than a philosophical debate.