October 12, 2007
Live from the MLEA
Posted by Jeff Lipshaw
As I mentioned this morning, I'm at the University of Minnesota Law School for the Midwestern Law and Economics Association Annual Conference. Myself excluded, the agenda includes an impressive group of speakers.
I spoke early today on Aboutness, Thingness, Models, and Understanding, and was not hit by a single tomato. Somebody did pick up on my introductory reference to Stephen Stills at Woodstock. He, of course, was ingesting recreational substances at the time; I was not.
The best thing about this has been the broad range of subjects, from financial services regulation to law school rankings to tissue transfer ("Gimme Some Skin: When Tissue Banks Compete for Transplant Tissue, Who Wins?" by Robert Katz of IU-Indianapolis, which is going on right now).
Speaking of Stephen Stills and Woodstock, we are just now moving into medical marijuana exemptions, so I'm signing off.
A Waivable Conflict?
A husband and wife are "accused of brutally murdering their roommate, stuffing her body in the trunk of their Jaguar, and setting the car on fire to cover up the alleged crimes." The wife dismissed her attorney and sought representation from the law partner of her husband's attorney. The prosecution objected on the basis that the defendants "may have implicated themselves and each other in the murder." When the district court refused to permit the substitution, the wife filed a writ of mandamus with the Nevada Supreme Court.
The court held that the district court abused its discretion. Both defendants must be "canvass[ed]... to determine whether they knowingly, intelligently and voluntarily waive their right to conflict-free representation so long as the conflicted representation will not interfere with the administration of justice." Both must also specifically waive the opportunity to seek a mistrial as a result of an actual or potential conflict. "[T]here is a strong presumption in favor of a non-indigent criminal defendant's right to choose counsel... the defendant may waive the right to conflict-free counsel."(Mike Frisch)
Not Substantially Related
In a lawsuit involving the death of a resident of a health care facility, a former associate of a law firm that represents the defendant is now employed at the plaintiff's law firm. A motion to disqualify was filed. The Fourth District Court of Appeal of Florida held that disqualification was not required: "[The attorney] handled a 'type of problem' for [defendant]--negligence cases involving patients who suffered from pressure ulcers or falls; the current case, filed after [the associate] left [his former firm] is a 'wholly distinct problem of that type'." Each negligence case "turns on its own facts" and does not require the attorney to attack his work at the former firm.
The link takes you to the court's web page-click on July 25-- case is Health Care & Retirement Corp. v. Bradley, No. 4D07-437. (Mike Frisch)
Ins and Outs - The Complex Network of Judicial Clerk Referrals
Posted by Jeff Lipshaw
When I posted on complexity theory some months back, I got a nice note from Daniel Katz, a Michigan Law School grad and a Ph.D. candidate in public policy at the Gerald R. Ford School at Michigan about networking among federal judges for the purpose of placing clerks.
I won't try to explain or theorize from this, but Dan and co-author Derek Stafford have studied the links between federal judges based on clerks they had in common, and the resulting visualization is available on his website. The social networking effect is similar to images Bill Henderson provided earlier this year.
And speaking of Bill (and Indiana), Dan advises that he will be presenting the paper at the SEAL conference at Indiana in a couple weeks. Look for the paper on SSRN in November.
* I'm in Minneapolis, presenting later today at the Midwest Law and Economic Association Conference.
October 11, 2007
An Offer You Can Refuse
Here's a decision from an Illinois hearing board that paints a picture worthy of discussion in a law school course in professional responsibility. The lawyer was charged with misconduct in three cases. Two were what disciplinary prosecutors call "garden variety" misconduct. The third was anything but. The lawyer represented the client in a custody matter. The father was awarded sole custody and the client was ordered to transfer physical custody of the child by a date certain. The attorney was involved in legal efforts to overturn the order.
The lawyer advised the client to leave the state and change the identities of her and her child. The lawyer found a local address for the client to live and falsely denied to the police knowledge of the
client 's location. The client, who the lawyer had instructed to lie to authorities, was uncomfortable with the advice. She went to the police and told the truth. When the client advised the lawyer what she had done, the lawyer said:"Okay, just play dumb to the judges because you're not a good liar. I'll do it for you."
What is going on here? Unfortunately, the accused attorney defaulted, so there is no indication of the motivation. The hearing panel notes that the advice severely damaged the client, acknowledged that the accused had no prior disciplinary record, and noted that the failure to respond to the charges displayed a "callous disregard" for the bar discipline process. (Mike Frisch)
Tales Of The South Pacific
An Illinois hearing board has recommended the disbarment of an attorney for "knowingly acquiring funds that were the proceeds of criminal activity, a prostitution business run by his wife" while he was employed with the Senate Legal Counsel Office in Palau. The prostitution ring was run out of a restaurant owned by the wife. The lawyer was found to have testified falsely in his wife's criminal trial, claiming that the proceeds of the business were derived from wedding gifts, family and his salary. He also thwarted an attempt to bust the prostitution business by spotting the undercover cop and instructing an employee to offer massage services only. He did not participate in the disciplinary proceedings and thus defaulted on the charges. (Mike Frisch)
"Non-refundable" Retainer Must Be Earned
An attorney admitted to practice in 2004 charged a "non-refundable" fee of $5,000 to handle litigation arising out of a partnership dispute. The matter had been referred by a more senior lawyer who appears to have meddled rather than mentored the neophyte attorney. The accused lawyer attempted to "renegotiate the fee under threat of withdrawal and misrepresented his motives" for doing so. He withdrew prior to the trial. In reviewing findings of misconduct based on charges filed by Maryland Bar Counsel, the Maryland Court of Appeals held that "an initially reasonable fee, even a flat fee, may become excessive in cases where the attorney does little or no work." The retainer also must be held in escrow until earned. The court found a number of violations including dishonesty and conduct prejudicial to the administration of justice. The court also was concerned about the attorney's lack of candor and contrition. Indefinite suspension with the right to reapply after a year. (Mike Frisch)
3L Candidate to Cal Bar Seeks Readers' Advice on C&F and DUI Issues
Posted by Alan Childress
I was sent this by a reader, who asks your advice in comments (or a new post, if the editors here want to weigh in). Here is what the email says:
I'm a 3L seeking getting ready to seek admission in California in the next year. I'd like your opinion (and everyone else's) as to what should be done about my situation...
I'm a 3L at a top 25 law school. Recently, I was convicted of my second DUI (my second criminal conviction ever, and not in the same state as my first). The first was three years ago, close to the start of law school. I have done everything asked by the courts, all the alcohol awareness classes, and entered counseling a few months ago regarding the family issues that precipitated the second DUI in August 2007. (I confess, the first was an amateur mistake - that was simply a matter of my own stupidity). Are there any other ideas as to what needs to be done for bar admittance or soundness of moral character? Any ideas/suggestions would be appreciated.
October 10, 2007
An Ohio lawyer convicted of identity theft was suspended by the Ohio Supreme Court for two years without credit for time served after his interim suspension. He had attended law school ten years after college. He had a number of debts including support of two children. While working at a Citibank, he "came up with a plan to use his position to take advantage of information on bank customers to steal money." He opened a bank account in a customer's name, applied for a credit card in that name, changed the customer's address to a vacant apartment and had checks sent to that address. After stealing over $1,200, he was discharged and prosecuted. He served a prison term and now works in a delicatessen. Two judges dissented, favoring an indefinite suspension "making reentry [to law practice]conditioned on proven worthiness." (Mike Frisch)
Offensive Personality No Longer Unethical
The Arizona Supreme Court has amended its rules. Arizona attorneys are no longer required to "abstain from all offensive personality" and are now obligated to avoid "engaging in unprofessional conduct." The "offensive personality" prohibition had been attacked in California litigation as unconstitutionally vague. Thanks to the ABA/BNA Lawyers Manual on Professional Conduct for spotting the rule change. (Mike Frisch)
Michigan Lawyer Sanctioned For Misuse Of Funds Of California Estate
A Michigan attorney was appointed executor of his first cousin's estate in California. The attorney was not admitted in California and retained counsel to assist in probating the estate. He was charged with misconduct relating to alleged mishandling of estate funds. In the bar proceeding, he contended that Michigan ethics rules did not apply and that the panel "had no authority to determine whether [he] violated California law." The Michigan Attorney Discipline Board rejected this claim: "this Board and its panels have...found misconduct based on violation of the criminal law of other states, as well as upon violation of the probate law of other states." Misconduct warrants appropriate discipline regardless of where it takes place. Further, "to the extent it even makes sense to try to pin down the situs of [the attorney's] acts and omissions, the misconduct clearly took place in Michigan." A four-year suspension was ordered. (MIke Frisch)
Bias Claim Rejected
The Illinois Review Board has recommended disbarment of an attorney charged with breach of fiduciary duties, misrepresentations to a client, forgery of the client's signature on a power of attorney, failure to deliver client funds and false statements to tribunals in two matters. The attorney sought but was denied a continuance of the disciplinary case based on health-related claims. The hearing went forward without the attorney. The appeal to the review board claimed that the continuance was improperly denied and that the Hearing Board had discriminated against her on the basis of race. The review board rejected this and other claims: "We cannot discern any support in the record for this argument...[the attorney] was treated fairly at every stage of the proceedings." (Mike Frisch)
October 9, 2007
Frivolous Litigation Leads To Disbarment
A Georgia attorney had "continually over the past ten years...filed...actions arising out of a judgment entered against him in a legal malpractice and fraud action in 1995 and the creditors' efforts to collect on that judgment." Courts had entered Bills of Peace and Perpetual Injunctions in a failed attempt to put the matters to an end. The Georgia Supreme Court had imposed sanctions for frivolous appeals three times. The court now has ordered disbarment: "[the attorney] has continued to plague the judicial system with untenable claims for purposes unbefitting of any member of this State's Bar...this Court has personally witnessed [the attorney's] recalcitrant behavior, including open disrespect towards the judiciary and the laws of this state."
In an unrelated matter, the court concluded that a long suspension, rather than disbarment, was the appropriate sanction for an attorney convicted of cocaine possession. The attorney had been in practice for 20 years without any professional discipline.(Mike Frisch)
Sanction Deemed Insufficient
A Michigan attorney falsely advised a tribunal that his client had passed a polygraph examination and made misrepresentations in the ensuing bar proceeding. A hearing panel ordered a 90 day suspension, which was appealed by the Grievance Administrator. The Attorney Discipline Board agreed that "misleading statements in pleadings should be considered as more serious misconduct than [the lawyer's] failure to provide services...for other clients." Although disbarment was not required, the board noted that the attorney's extensive prior disciplinary record--"a five year suspension,two reprimands, and eight admonishments"--merited a one-year suspension. The case was deemed less serious than cases involving creation of forged documents. (Mike Frisch)
A defendant convicted of making terroristic threats under Nebraska law claimed that his trial counsel was ineffective for failing to challenge the constitutionality of the criminal statute. The Nebraska Supreme Court held that the claim was meritless, as the words of the statute--"terror" and "terrorize"- are commonly understood terms and are not unconstitutionally vague. Counsel did not render ineffective assistance and the conviction was affirmed. (Mike Frisch)
October 8, 2007
What's The Problem?
An attorney who had been reprimanded twice by the Wisconsin Supreme Court was the subject of ethics charges in three client-related matters. The court ordered a 60 day suspension. The referee who had heard the case noted that it would have been "helpful to have some evidence from [the attorney] as to why he continued his pattern of neglect and whether there was some other cause for the neglect." Reinstatement is conditioned on a psychological evaluation in order to determine whether the misconduct has a treatable cause. (Mike Frisch)
An Unsuccessful Appeal
A Complaint Tribunal of the Mississippi Bar found that a lawyer had engaged in ethics violations for the sixth time and imposed a 90 day suspension. The attorney appealed to the Mississippi Supreme Court, contending that he did not have proper notice of the hearing (he had failed to appear and defaulted on the charges). He also contended that the sanction was too harsh.
The Mississippi Supreme Court disagreed, holding that the attorney had sufficient notice of the hearing. As to sanction: "The Bar and this Court have been extremely lenient with [the attorney's] previous five violations, and even in its decision today, this Court continues to be lenient." The court warns the attorney that there are limits to its leniency. Sanction: a one-year suspension and a requirement that the lawyer take and pass the MPRE.
South Carolina also disbarred an attorney with a lengthy record who had failed to participate in the proceeding, quoting an earlier case: "an attorney usually does abandon a license to practice law without a fight." (Mike Frisch)
Ethics Of Entering Public Service
An attorney may accept a position as staff attorney for the Standing Chapter 13 Bankruptcy Trustee if screened from all cases involving his former clients and the clients of his firm. An ethics opinion from Nebraska applies the revolving door provisions of Rule 1.11 to an attorney who will revolve in rather than out of public service. (Mike Frisch)
October 7, 2007
Suspended Means Suspended
An attorney who continued to practice after suspension resigned from the New York Bar. The First Department found that, after suspension, he had filed court papers under the name of another attorney, continued to handle pending cases without advising his clients of his suspension, and failed to remove his office sign. Perhaps this action will take--if not, the bar's only recourse is a contempt proceeding with the possibility of jail time. (Mike Frisch)