Saturday, October 6, 2007
The Oregon Bar has issued a formal opinion on positional or "issue" conflicts. Oregon lawyers are advised that the general conflicts rules apply to issue conflicts and establish a conflict "only if the lawyer is obligated to take opposing positions for the clients or if the outcome of one case will, or is at least highly likely to, affect the outcome of the other." In terms of the application of the imputed conflicts provisions of Rule 1.10, the opinion states that "it would be inappropriate to hold that on pain of discipline, all lawyers at a firm are chargeable with the full issue conflict knowledge of every other lawyer at the firm." (Mike Frisch)
One theme that emerged in the symposium that I blogged about earlier today was the crucial importance of an attorney clearly identifying her client when conducting investigative interviews on behalf of institutional clients. We rarely see bar discipline cases that impose discipline for failure to do so, but here's a summary of such a case taken from the web page of the North Carolina Bar:
"Raleigh lawyer Richard Schwartz was reprimanded by the Grievance Committee. Schwartz was retained by a local school board to investigate alleged assaultive conduct by high school students. Schwartz conducted interviews of several alleged victims. Rather than make it clear to the interviewees and their parents that he had a preexisting attorney-client relationship with the school board and was giving advice to the school board about the matter being investigated, he created the impression that he was conducting an independent investigation. Schwartz also lead the district attorney to believe there was no evidence that a felony occurred when in fact there was evidence, which Schwartz deemed incredible, that, if true, would constitute felony sexual offense. Schwartz' misconduct was mitigated by his lack of prior discipline and apparent lack of dishonest motive."
The Georgetown Journal of Legal Ethics and Center for the Study of the Legal Profession held a symposium last week on Corporate Compliance: The Role of Company Counsel. The symposium brought together both in-house and outside counsel in panel discussion of papers that are being prepared and were discussed by Professors Sarah Duggin (Catholic), Sung Hui Kim (Southwestern) and Tanina Rostain (New York Law). The link here will provide access to the video of the symposium. (Mike Frisch)
Friday, October 5, 2007
The Hawaii Supreme Court has proposed an amendment to its Rules that will impose immediate suspension of an attorney who causes a payment to be made from its client security trust fund. The suspension will remain in effect until the fund is reimbursed. The court seeks comments through December. (Mike Frisch)
The Oklahoma Supreme Court ordered the reinstatement of an attorney who had resigned in 1997, admitting that he had stolen client funds. The court noted that it had recently denied a petition for reinstatement, but treated the renewed request as a fresh matter. The court is hopeful: "He no longer gambles on horse races or imbibes heavily..." He produced a number of character witnesses who spoke favorably of his work as a legal assistant.
A dissent would deny reinstatement, finding the evidence of rehabilitation insufficient in light of a disbarred lawyer's obligation to establish good character by a higher standard than a first time applicant. (Mike Frisch)
A lawyer represented the estate of a college student that sued an Eckard drug store from which a drug that caused the student's death had been stolen. She was asked a hypothetical at the oral argument before the Florida Fourth District Court of Appeal and gave a candid answer that did not help her case. The court was impressed "lawyers who are candid with a court, and understand that concessions are necessary in order to maintain any semblance of credibility are much more effective advocates than those that are unwilling to give an inch." Of course, the key to maintaining such credibility while remaining a zealous advocate is avoiding conceding away your entire case. (Mike Frisch)
The United States Court of Appeals for the Seventh Circuit recently affirmed a district court order resolving litigation regarding payment of attorneys fees arising out of a class action matter, noting that the case had produced "some of the most convoluted complicated issues that legal minds can produce" and "bore more resemblance to a Pier-10 brawl than legal actions." (Mike Frisch)
Thursday, October 4, 2007
Does the participation by a non-lawyer acting on behalf of a corporation before an administrative board constitute the unauthorized practice of law? Yes, if the participation "requires the non-attorney to exercise the professional judgment of an attorney" according to a recent decision of the Tennessee Supreme Court. The non-lawyer had prepared and signed a petition challenging a decision of the Water Quality Control Board. Notably, there is a statute that permits a "duly authorized representative" to "participate" in such proceedings.
One might fairly ask if decisions such as this one are intended to protect the consuming public from incompetent service or to assure that, in such cases, the corporation has no choice but to hire counsel or default. The issue of the use--or misuse--of UPL rules to deny access to justice also is raised in a case from Delaware that was litigated by my Georgetown friend and colleague David Vladeck. David recounts the story in a chapter of Law Stories:Legal Ethics, which I have found to be an excellent text for my Advanced Legal Ethics seminar. (Mike Frisch)
An atttorney who had been retained in an immigration matter was discharged shortly after receiving an advance fee of $500. He returned the retainer but stopped payment on the check "[b]ased on threats and a perceived lack of appreciation for his agreement to refund the money..." He ultimately agreed to provide a cashier's check as a refund, went to the bank with the clients, and got into an altercation where he pushed or hit one of the clients. He was charged with misdemeanor assault, entered into a deferred prosecution agreement, and the judgment of conviction was vacated. The clients sued for return of unearned fee and won a civil judgment, which remains unpaid. As one might imagine, this all led to a bar complaint.
The Washington Supreme Court held that the criminal matter conclusively established the assault notwithstanding the vacatur of the conviction. The court imposed a 60 day suspension. A dissenting opinion would reject the majority's finding that the attorney made full and free disclosure and displayed a cooperative attitude in the disciplinary process and would impose a six-month suspension. (Mike Frisch)
Wednesday, October 3, 2007
The Ohio Supreme Court ordered a new trial in a death penalty case, finding (1) ineffective assistance of counsel in failing to file a pretrial motion challenging the testimony of the key prosercution witness on the ground that the witness was legally married to the accused and (2) failure of the prosecutors to turn over potentially exculpatory witness statements despite a defense request.
An attorney admitted to practice in 1955 was suspended by the New York First Judicial Department as a result of a complaint alleging that he had failed to disburse the proceeds of an estate. The attorney had initially answered the complaint by admitting that the bulk of the legal work had been completed in 2006 and a court order had directed that he release the funds. After a failed attempt at mediation, the lawyer was sent a certified letter requesting production of relevant bank records, followed by a subpoena. His assistant advised that he had been diagnosed with cancer.
After a final demand letter, the attorney provided the disciplinary committee with four checks and a statement from the complainant withdrawing the complaint. The checks were not from his escrow account and were returned with a warning that his continuing failure to cooperate could lead to suspension. The committee then moved for immediate suspension, which was granted: "[the attorney] has persistently flouted or ignored multiple requests...for his appearance, and for account records...neither [the attorney] nor anyone on his behalf has supplied the Committee with any documentation confirming his medical condition... his general uncooperativeness evinces a shocking disregard for the judicial system and the Committee's investigation." (Mike Frisch)
Howard Bashman's How Appealing blog has a link to an article that reports on an interesting appellate argument in a California case where the plaintiff's attorney received the notes of a defense lawyer (exactly how is in dispute but the trial court found no misconduct) and used the notes at trial without providing advance notice to the defense. Each side relies on prior California cases in support of its position. The ethics question is whether the duty to advocate on behalf of a client is either trumped or modified by a duty of fair dealing with opposing counsel. The decision in the case will likely provide a teaching tool for ethics professors. (Mike Frisch)
Tuesday, October 2, 2007
An lawyer who served as a deputy district attorney in Colorado agreed to a three year suspension with all but six months stayed, followed by probation for two years and six months, for having a relationship with a magistrate while regularly appearing in the magistrate's court. I would assume that the magistrate also was disciplined, but I could not locate a decision on the Colorado judicial discipline web page. (Mike Frisch)
A lawyer appointed to represent a defendant charged with armed robbery moved to withdraw the day before the scheduled trial, stating he could "no longer competently and professionally represent [the defendant]." The lawyer then told the court that the client wished to testify in a manner in the lawyer's opinion would be false. The judge denied the motion to withdraw and advised the client that he would be required to proceed without counsel if he testified. The defendant did not testify and was convicted.
On appeal, the North Carolina Court of Appeals held that the lawyer must know, rather than believe, that the expected testimony would be false. The defendant was improperly forced to choose between the right to testify and the right to counsel. The error was not harmless and the defendant was granted a new trial. (Mike Frisch)
Monday, October 1, 2007
The Washington State Bar Association has an online resource that should be emulated by every state bar --a guide to the proper procedures for opening and operating a trust account. Because the rules regarding such accounts are strictly enforced, it is most helpful to provide bar members with clear instructions regarding their responsibilities in this aspect of practice. (Mike Frisch)
An attorney who employs a disbarred lawyer runs a significant risk of accusations of aiding unauthorized practice. The Illinois Review Board recently filed a report finding that the attorney had engaged in conduct prejudicial to the administration of justice through such an employment arrangement (the disbarred lawyer was a close friend). The board affirmed a hearing panel finding that the conduct "created the possibility that the public's regard for the effectiveness of the disciplinary process would be lessened." Misconduct was also found in two client matters, leaded to recommended suspension of one year. (Mike Frisch)
Sunday, September 30, 2007
Posted by Jeff Lipshaw
I've started but not finished a wonderfully creative piece by my colleague, friend, and office next door neighbor, Jessica Silbey (left), The Mythical Beginnings of Intellectual Property Law, forthcoming in the George Mason Law Review, but it was only this morning that I reached back to the very infancy of my academic life, and concluded that what was old is new, and, I suppose, vice versa.
If I may grossly oversimplify, Jessica's ambitious thesis is that utilitarian (read: economic) theories of intellectual property law do not fully account for its importance. She posits a narrative significance to creativity, supported by intellectual property rights, as a form of the "origin myths" or "origin stories" (I think of Horatio Alger, or George Washington and the cherry tree, or Abraham smashing the idols) that serve as models for human behavior and give meaning to our lives.
There is an inescapable link between my first dive into academic rigor as undergraduate some thirty plus years ago in the vibrant history department at the University of Michigan, and Jessica's call for narrative. I still recall the graduate student instructor (my long time friend Andy Achenbaum) in the first session of the small section of my first U.S. history course describing the paper requirements, and telling us that we should think of them as "legal briefs." As I had no idea what a good history paper nor a good legal brief looked like, it was not, at the time, particularly helpful advice. But I know now that all scholarship, implicitly or explicitly, makes an argument linking data through some structure or process of theorization.
The hot topic back then (mid-1970s) was the call to import social science methodology into historical analysis, as a (or the) way of making that argument. Another of my professors, Robert F. Berkhofer, Jr., had then recently written a book entitled A Behavioral Approach to Historical Analysis, a call to employ historiographical methods that pierced through the possibility of myth-making by understanding the roles of actors and interpreters in the writing of history. It was a reaction to the interpretive or narrative nature of the study of history, which had no doubt as much to do with the time and place of the narrator as it did of the actors. (The example I recall most vividly was that Arthur Schlesinger's The Age of Jackson seemed to import a fair amount of the The Age of Roosevelt, reflecting as much the author as the subject.) That is, to what extent were historians writing history, versus writing the Great Stories?
I was separately, and for my own purposes, trying to construct what had happened to Berkhofer's thesis about social science methods in history, and did a Google search this morning. I came upon a review, authored by Thomas Haskell at Rice, of Berkhofer's 1995 book, Beyond the Great Story: History as Text and Discourse (Harvard University Press, 1995). (The review is "Farewell to Fallibilism: Robert Berkhofer's Beyond the Great Story and the Allure of Post-Modernism," 3 History and Theory 347 (1998)). Now, I have not read the book, only the review, but it serves my point here just as well. The review was devastating, but, despite my fond memories of my time with Professor Berkhofer, I have to admit I was sympathetic to its point, which was essentially this: there's nothing like the reaction of the disappointed absolutist (read: Berkhofer the behavioral theorist) who despairs of his theory, and proceeds from rigorous causal explanation to a rejection of all theory with no stop in between for the possibility that life (read: history) is too complex either for algorithmic solution or complete deconstruction.
From our door post discussions, I suspect that Jessica herself has little patience for my meta-thinking about how academic or practicing lawyers think in models. But it seems to me that the same unresolved (and if Haskell is to be believed - and I think he is - unresolvable) issues of historiography, the perseverance of the old antinomies like explanation and understanding, of empiricism and intuition, prevail in the legal briefs we want to write as legal academics. This paragraph of Haskell's review of Berkhofer stopped me in my tracks:
The lamentable inadequacy of the so-called "modernist paradigm" turns out to be that it will not reduce to an algorithm. On [Berkhofer's] account, the normal paradigm makes of historical inquiry a fallible project, the crucial features of which cannot be embodied in any set of explicit instructions, or be carried out in any fixed mental mode. It requires of its practitioners that they be nimble enough to shift mental gears as the intellectual terrain varies and to juggle alternative modes of thought, which may pull in different directions. They must even dare to make judgment calls, with no guarantee of being right and every prospect of being criticized. Rather than declaring history to be purely an art or purely a science, the conventional paradigm assumes that historical inquiry, like life itself, displays elements of both. Indeed, it assumes that the mental repertoire of the historian differs in no deep, fundamental way from that of common sense, which is eclectic through and through. This strikes Berkhofer as intolerably messy and methodologically promiscuous, a project bound to fail because it naively encourages crossbreeding between different species of thought.
So here's a toast to the "intolerably messy" and the "methodologically promiscuous" as reflected in Jessica's new piece, at least as it stands as a humanities approach in contrast to the prevailing social scientism of the legal academy. And to more crossbreeding between different species of thought.