Saturday, October 20, 2007

Recapturing Time

We just received a comment seeking advice on the proper method for billing for review of 500+ emails in connection with an estate matter. The problem is that the reviews have taken place over a period of time without recording the time as it was expended. I have linked to an advisory opinion of the California Bar that gives some guidance regarding appropriate methods of hourly rate billing (or, at least, explains how arbitrators identify improper methods of bill padding). I would welcome the input of readers in answering the question. My own advice is to devise a fair method of computing the overall time and carefully explaining the calculation method in the final bill. Far better to acknowledge that the calculation is not based on records made at the time than to be accused of misrepresentation in connection with the bill. Note that the question comes from a non-lawyer who clearly wishes to do the right thing. (Mike Frisch)

October 20, 2007 in Billable Hours | Permalink | Comments (0) | TrackBack (0)

More On Offensive Personalities

In response to Bill Severson's interesting comment on a recent post, here's a link to a thoughtful analysis of the connection (or lack thereof) between rules of ethical behavior and standards of civility, authored by Barrie Althoff, former Chief Disciplinary Counsel to the Washington State Bar Association. (Mike Frisch)

October 20, 2007 in The Practice | Permalink | Comments (0) | TrackBack (0)

Friday, October 19, 2007

A Wasted Opportunity

The comment period for proposed revisions to the rules governing lawyer discipline in the District of Columbia expires today. Here is a link to the court's notice, with a summary of the key provisions.

It may come as no surprise to readers of this blog that I am no fan of many of the recommendations or the process that led to the proposals. Below is an excerpt from my letter to the D. C. Court of Appeals:

"My views on the dysfunctional nature of our present system are well known...While I appreciate the efforts of the committee and court to reform the system, I believe the opportunity to make the system fairer and faster has been wasted. It is unlikely that another opportunity for meaningful reform will be presented to my generation of members of the District of Columbia Bar. To me, the wasted opportunity is more than unfortunate; it is tragic.

I also believe that the Court, which is responsible for the regulation of its Bar, should be aware that the process that produced this report was deeply flawed. This committee conducted its work behind closed doors without any attempt to reach a broad range of views from interested and well-informed persons. Rather, a hand-selected group of bar insiders with a vested interest in the status quo rendered a report that fails to meaningfully address the systemic failures of the disciplinary system, most notably the undeniable fact that serious cases of misconduct routinely take years- sometimes over a decade- to resolve. The committee held a single perfunctory public hearing after it had completed the report and did not change a comma after several people (myself included) raised serious concerns, particularly about the consent disposition proposal. It is a cruel irony that this report sacrifices any possibility of efficiency in the name of "transparency" when its own processes were anything but open to any public input. Meaningful reform will only come when the Court authorizes a study of the system that brings together a full range of informed views."

This is what happens when the foxes not only guard the henhouse but are placed in charge of henhouse construction.(Mike Frisch)

October 19, 2007 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Is Incompetence Always Unethical?

A Louisiana attorney was retained by a mother and her minor son to prosecute a case arising out of an automobile accident. The attorney filed suit but thereafter failed to take meaningful action for seven years. A disciplinary complaint was filed that led to findings of incompetent representation and failure to expedite litigation. The Louisiana Disciplinary Board recommended a three-month suspension.

The Louisiana Supreme Court affirmed the findings of misconduct but rejected the proposed discipline in favor of a public reprimand. The rationale is worth considering: "The question of when ordinary legal malpractice becomes an ethical violation is somewhat unclear...virtually any time an attorney allows his client's case to prescribe or be abandoned, it could be said the attorney lacks competence...as a practical matter, disciplinary sanctions are not always appropriate in every instance where an attorney commits minor violations of the Rules of Professional Conduct."

Two judges dissented and would impose the sanction recommended by the board.

I think the court is correct in suggesting (or at least inferring) that some instances of malpractice would not constitute an ethics violation. Let's say a lawyer does everything to prepare a case for filing but makes a one-day error in computing the statute of limitations. The case is dismissed and a malpractice claim might be sustained. I'd argue that this conduct likely did not violate Rule 1.1 (which should not be confused with Rule One). Having said that, failing to prosecute a client's claim for seven years falls comfortably into the category of an ethics breach. Further, the idea that "minor" ethical violations can be ignored by disciplinary authorities is an invitation to claims of discriminatory enforcement. (Mike Frisch)

October 19, 2007 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Lawyer Disbarred For Concealing Source Of Referrals

The New York First Judicial Department disbarred a lawyer as a result of his felony conviction. The lawyer admitted in his plea that he and his law partner had paid a "runner" to refer personal injury cases to the firm and had falsely concealed the identity of the runner on required documents filed in connection with the representations. (Mike Frisch)

October 19, 2007 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, October 18, 2007

In Memoriam: Kathleen McCree Lewis

Posted by Jeff Lipshaw

A good friend, a great lawyer, and an exceptional human being, Kathleen McCree Lewis, passed away on Lewis Tuesday after a long bout with cancer.  She was the head of the appellate litigation section at Dykema Gossett in Detroit.  President Clinton twice nominated her to the Sixth Circuit, but the nomination stalled in the partisan clash over federal judicial nominations at the end of his term.

She was one of the finest thinkers and writers I ever met, and she and her husband, David, truly one of the most elegant couples ever to walk the earth, but most of all, she was a person who cared very deeply about everybody around her.  After I had left Dykema and become the general counsel at AlliedSignal, I hired away from Dykema one of its star lawyers, and one of Kathleen's proteges.  I called her a few days later, and there was long silence.  It was clear she was very angry at me.  Finally she said, "you better be very, very good to him, or you will have me to deal with."

This is the world's loss.

October 18, 2007 in Lipshaw | Permalink | Comments (0) | TrackBack (0)

Lawyer Gone Wild

A bar discipline case from Wisconsin illustrates the dangers of getting too closely involved with a client. The attorney represented a client in a criminal case. He engaged in a three-way sexual encounter with the client and the client's girlfriend but  'there was no evidence that [the attorney and client] engaged in sexual intercourse or intentionally touched each other's intimate parts." Thus, there was no violation of the rule that prohibits sex with a client. The lawyer also drank and smoked marijuana with the client, who had been prohibited from possession or use of controlled substances as a condition of bail. Also, the attorney was high on drugs and unprepared during the criminal trial.

In another matter, the lawyer represented a divorcing husband whose wife was pro se. He engaged in a three-way sexual encounter with the wife and another woman shortly after the husband fired him, which "showed a substantial social relationship during [the attorney's] representation...and a desire ...to pursue his own selfish interests." This established a conflict of interest. In other matters, there was a videotape showing him snorting cocaine and using marijuana with clients (he claimed that the snorted substance was either flour or salt). He also committed a slew of other violations such as accepting sexual intercourse as payment for legal services (although the referee did not make a specific finding to this effect), using drugs with clients, supplying drugs to clients, violating escrow obligations and falsely certifying that his escrow records complied with applicable rules.

The Wisconsin Supreme Court rejected the referee's conclusion that there must be a nexus between criminal acts (the drug use) and particular legal services provided to a client in order to establish an ethical violation. Both the lawyer and disciplinary counsel objected to the proposed 18 month suspension. The court suspended the attorney for three years and ordered that he pay the costs of the bar prosecution. He also must submit to random drug screenings for one year prior to reinstatement.

If you read this decision, you may wonder (as I do) why this is not a disbarment case. Standing alone, the escrow violations have a flavor of misappropriation. Other courts severely sanction lawyers for illegal drug use. (Mike Frisch)

October 18, 2007 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Florida Amends Admission Rules

The Florida Supreme Court has amended its bar admission rules to, among other things, combine the application for admission and appplication to sit for the bar into a single document, eliminate provisions that permit the application to be filed out of time, and require that the application be submitted in electronic format. (Mike Frisch)

October 18, 2007 in The Practice | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 17, 2007

Good Grief!

The Hawai'i Supreme Court disbarred an attorney named Charles Brown for multiple false statements in the bar admission process including his use of two false social security numbers and two false dates of birth to facilitate the concealment of a series of criminal arrests and convictions. He also had failed to supplement his applications with additional information that had occurred subsequent to his applications. The link takes you to the court's opinion web page. The decision date is October 4, 2007.(Mike Frisch)

October 17, 2007 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Reasonable Belief Insufficient

A lawyer admitted in Ohio was granted pro hac vice status to represent the interests of two  entities and individual partners in Arizona. He sued a limited partner for legal fees and received a substantial award in federal district court based on a finding that he reasonably believed that his former client was a general partner. On appeal, the United States Court of Appeals for the Ninth Circuit held that the lawyer could not rely on such a belief: "such a holding would be perverse because [the lawyer] acted as legal counsel to both the [entity clients] and the [individual limited partners] and owed a fiduciary duty of care to both." The lawyer was bound by the ethical rules applicable to members of the Arizona Bar. As a matter of basic competency, it was incumbent upon the lawyer to review the organic corporate documents. The lawyer may not benefit from the failure to examine the corporate documents, which would have clearly established the limited partner status of the defendants in the suit for fees. The case was remanded for further proceedings. (Mike Frisch)

October 17, 2007 in Clients | Permalink | Comments (2) | TrackBack (0)

The Shame Of Disbarment

The Hawai'i Supreme Court disbarred an attorney who has been suspended since 2001. The court concluded that disbarment was appropriate for extensive misconduct including misappropriation of client funds notwithstanding findings of significant mitigation: "[the attorney] has experienced past suffering, shame, and humiliation by virtue of his imprisonment...has expressed extreme remorse, and has demonstrated candor and a cooperative attitude toward these proceedings. {The attorney] also had good character and reputation prior to his ice addiction, and has taken steps toward rehabilitation, and there has been a lengthy passage of time since his misconduct and the completion of this disciplinary proceeding."

The link is to the court's opinion web page. The case is ODC v. LePage, decided October 2, 2007. (Mike Frisch)

October 17, 2007 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 16, 2007

A Private Matter?

An Illinois Hearing Board majority sustained some, but not all, ethics charges brought by the Administrator alleging that an attorney had diverted fees due to his law firm to an outside lawyer, kept referral fees that were due to the firm, handled cases in a manner contrary to firm policy and used firm funds to pay filing fees for those cases. Eleven counts charged conversion of firm funds.

The majority held that the conversion charges were not proven, but that the lawyer had breached fiduciary duties to the firm and engaged in dishonest conduct. However, "[f]or the most part, this controversy involved a private dispute between a law firm and one of its shareholders. No harm resulted to any client nor was any court proceeding negatively impacted by [the lawyer's] conduct." The majority recommends a one-year suspension with six months stayed subject to probationary conditions and "highly recommend[s] that [the attorney] complete a class in partnership obligations."

The hearing board chair issued an impassioned dissent that would find no misconduct: "I believe the larger, and more significant, issue in this case is whether this action should have been brought in the first place...I saw nothing more than a private dispute between an attorney and his employer/firm over the appropriate amount of the attorney's compensation. This type of dispute is properly resolved in a civil proceeding...For the Administrator to become involved in this dispute and scrutinize an employment relationship merely because Respondent is an attorney is, in my view, an inappropriate extension of that office...the particular Complaint fashioned by the Administrator in the instant matter amounts to heavy-handed overreaching...I find the prosecution of attorneys who are involved in private financial disputes with their law firms, which disputes have no bearing on the quality of services provided to clients, is not only an injudicious use of resources but, in my mind, an abuse of prosecutorial power and resources."

Strong words indeed. I checked the web page of the author of this dissent and, so far as I can determine, he has no partners. I would be distressed if an attorney entrusted with decision making authority in bar discipline cases seriously believed that a lawyer should be exempt from discipline for violating fiduciary duties to law partners. I also think that the job of disciplinary counsel is thankless and difficult enough without being subjected to attacks of this nature.

In my view, the idea that dishonesty between law partners is an exclusively private or civil matter is a dangerously slippery slope. The D.C. Court of Appeals rejected this suggestion in a case I prosecuted several years ago (the D.C. court remanded the case in 2003 and the issue of final discipline remains unresolved). This case is worth watching to see how it is decided by the Review Board. We will keep you posted. (Mike Frisch)

October 16, 2007 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

More Lawyers Suing Lawyers

An equity partner in a New York law firm negotiated an employment agreement that changed her status to contract partner. She was thereafter terminated, allegedly removed files after business hours and was locked out of the firm's offices. The lawyer sued the firm and a settlement was reached. The lawyer then brought two new actions against the firm and its shareholders. The firm moved to dismiss based on the settlement or, in the alternative, to stay the actions and compel arbitration pursuant to a clause in the employment agreement. The New York Supreme Court dismissed the causes except for a gender discrimination claim. The Appellate Division, First Department, reinstated the dismissed claims and denied the firm's motion to compel arbitration.

The Court of Appeals reversed, noting the strong public policy favoring arbitration. On remand, the Appellate Divsion must determine whether the discrimination claim is subject to arbitration. (Mike Frisch)

October 16, 2007 in Law Firms | Permalink | Comments (0) | TrackBack (0)

Law and Social Norms in the Neighborhood

Posted by Jeff Lipshaw

Mike Madison's recent post on the "legal" brouhaha arising out of his neighborhood blog in Pittsburgh reminded me of one of my brief forays into public debate a number of years ago.  (By the way, if I were going to blog akin to Mike currently, it would be about people letting their dogs off leash in Cambridge parks, something that is strictly illegal.  One of my dogs doesn't react well to other dogs, and there is nothing scarier than the sight of an unleashed dog heading full bore towards us.)

Through most of the 1980s, we lived in the very homogeneous community of Plymouth, Michigan, situated almost equidistant between downtown Detroit, where I worked, and Ann Arbor, where my wife was going to school.  I am pretty sure you could count the number of Jewish, black, Asian, or Hispanic families on a couple hands.  But it was a lovely little town, with an old style common, a retro movie theater, and lots of quaint little shops.  One of the customs in the town was to place a creche (a manger Creche scene) at one end of the common, and three wise men on donkeys at the other end the night after Thanksgiving.  Each night, city employees would move the magi just a little closer to "Bethlehem."

Being Jewish, and principled in a First Amendment sort of way, this got on my nerves year after year, until the holiday season of 1986, when I paid a visit to the local muckraker, the editor of the town newspaper, the Community Crier, and asked why he had never taken a stand on this earth-shaking issue.  I don't remember the entire discussion, but the end result was that I was suckered, I mean, talked, into writing what I thought was a respectful letter to the editor.  I suggested it was a wonderful tradition, but that it really should be staged on the grounds of one of the local churches and not the public square, which meant that I (like the other three or four other Jews, Muslims, Buddhists, atheists, and assorted Druids) had to explain to my precocious two year old daughter why this did not apply to us.

I still have the issue from the next week, when a number of the local populace suggested just where and how I could insert the First Amendment into any of a number of bodily orifices.  My favorite response was an anonymous phone call.  I answered the phone.  "Are you watching Channel 4?" somebody says.  I flip to Channel 4 to find Ronnie and Nancy Reagan lighting the White House Christmas tree.  "Thanks," I say, and hang up.  Q.E.D., I guess.

Next episode:  we moved less than a year later to the tony and only slightly less homogeneous suburb of Birmingham, Michigan, which had the benefit of being close to the synagogue nursery school.  If living on a street full of white thirty-something guys named Biff and Randy who grew up playing golf at the restricted country clubs doesn't turn you into a post-modern, left-wing, deconstructionist, relativist bomb-thrower, nothing will.

October 16, 2007 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Monday, October 15, 2007

No Bright Line

Is a judge automatically disqualified from all cases involving a law firm that employs his son-in-law as a law clerk?  The  son-in-law works "primarily for one attorney with a major firm in a small community." The Judicial Ethics Advisory Committee of the Florida Supreme Court opines that a "bright line requiring disqualification in all cases involving the employment of a judge's relative by a law firm may be misplaced." Rather, the issue should be addressed on a case-by-case basis. Disqualification is appropriate only where "the judge's impartiality might reasonably be questioned." Here, the son-in-law is a part time law student employee and "has a de minimus interest in the firm and the proceeding...the result may be different if the law clerk were actively working for the lawyer appearing before the judge or...actively working on a case pending before the judge." (Mike Frisch)

October 15, 2007 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Bar's Appeal Dismissed On Technicality

An attorney admitted in Texas and California was convicted of misdemeanor trespass on his plea of no contest "[a]s a result of his uninvited entrance into his former girlfriend's residence...and the ensuing altercation." A trial on the resulting ethics charges in California resulted in a decision recommending public reproval. The State Bar sought review of the recommendation.

The California State Bar Court concluded "that we have jurisdiction to determine our jurisdiction." Although the State Bar had filed two requests for review, and "apparently believed that it had perfected its right to appeal," the court dismissed the appeal as untimely (citing a complicated procedural posture that mooted the two notices): "Although we are loath to dismiss this case on jurisdictional grounds, we are compelled to do so because, despite its efforts, the State Bar's two requests for review filed in this matter were vacated by operation of law, thereby depriving us of jurisdiction to consider this appeal."

This result may add fuel to the suggestion that lawyer discipline elevates the interests of an accused lawyer over the public interest in a full review of the consequences of misconduct. (Mike Frisch)

October 15, 2007 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Sunday, October 14, 2007

Tevye's Question, the Myth of the Horizontal Organization (Again), Interdisciplinary Work, and Rob Kar's Great Idea

Posted by Jeff Lipshaw

Having just returned from the Midwestern Law and Economics Association conference, and having this morning read Rob Kar's great first post on PrawfsBlawg (what is he going to do for a follow up to that?), I was reminded again of the fundamental question Tevye the Dairyman, the protagonist of The Fiddler on the Roof, raised about interdisciplinary studies.  Tevye, in advising his daughter about the problems of inter-marriage, says "a fish could marry a bird, but where would they live?"

The myth of horizontal organization is that you can keep a business organization dynamic and growing merely by agglomerating value-creating specialties. But if that's the case, it's like fish and birds, and who sees the places where neither of them live? Either everybody is responsible for the gaps between specialties (which means nobody is responsible) or nobody is responsible.

My talk at MLEA dealt in the broadest sense of trying to use algorithmic economic models to map linguistic or moral models.  That is, can you draw legal policy conclusions by trying to cast what the parties mean in a contract into the equations of welfare economics so as to resolve disputes about contract interpretation in an economically efficient way?  While I'd say about 40% of my time on this over the last couple weeks has been devoted to refining the point I was trying to make, the other 60% was devoted to what is essentially translation.  My first attempts, thoughtfully critiqued by colleagues Eric Blumenson and Andy Perlman, were largely cast in terms of the jargon of philosophy of language and cognitive science, and I thought we made great strides in bringing the ideas to a common denominator of relatively plain English (albeit plain English with words I made up).  Nevertheless, I have reason to believe I was not entirely successful (nor unsuccessful) in communicating with the audience. 

On the flip side, there were portions of the conference - mostly those with complex equations - as to which I might as well as been have been listening to a talk in French.  I would have understood enough of the syntax and the occasional words or English cognates to be able to say, with about this level of specificity:  "they are talking, I think, about wine, and either about its price or the tannin levels."

Which brings me back to the subject of Rob Kar's post, about which I have great passion.  He's responding to the response by Brian Leiter and Michael Weisberg to the recent convergence of law and evolutionary biology, which they criticized.  Now, again, we have a translation issue, but I read the Leiter/Weisman critique as saying evolutionary biology has yet to show it is capable of shedding light on the "non-plasticity" of behaviors, such that they might be the subject of legal policy.  I interpret non-plasticity as the behavior being fixed, or rigid, or hard-wired, or universal in a particular circumstance, as shown biologically, such that we might have confidence that the generalization in a legal rule is neither under-inclusive or over-inclusive.  I think Rob agrees with that (as do I), but his broader point goes back to how fish and birds, or sub-specialties, might learn to talk to each other, much less live together.

The point is the myth of the horizontal organization.  A new discipline that fits in between the cracks of the old ones needs to adopt its own rigorous standards, but they won't be the standards of any of the contributing disciplines.  I particularly took to heart Rob's inclusion of the philosophy of science and an analogy to meta-ethical thinking in the mix of disciplines that might inform this venture.   Particularly as to the latter, without a good dose of thinking about thinking, the project will never be more than the sum of its parts.

October 14, 2007 in Comparative Professions, Conferences & Symposia, Economics, Lipshaw | Permalink | Comments (0) | TrackBack (0)

Suit Against Former Client Fails

A law firm represented clients in a construction contract dispute with the federal government. The fee agreement combined a low hourly rate ($150) and a contingent fee. The clients terminated the litigation in the face of criminal charges. Thereafter, shortly before the statute of limitations for refiling the case expired, the law firm reinstated the case. The firm had attempted but been unable to obtain instructions from the client prior to refiling. The case was dismissed and the law firm sued the former clients under theories of quantum meruit and tortious interference with the contingent fee contract.

The United States Court of Appeals for the District of Columbia Circuit
held that the clients could not be sued for tortious interference of contract because a party to the contract cannot be sued for interfering with it.  Further, the claim of quantum meruit failed because the suit had been terminated based on the client's reasonable assessment that they would not prevail on the underlying claim. The court concluded that dropping the case was the legal equivalent of discharge for good cause, which defeats a quantum meruit claim: "a contingent-fee client, convinced had had no chance of success, would have to continue his case just to avoid quantum meruit liability." The policies that grant client authority to control his case trump the attorney's claim for compensation. (Mike Frisch)

October 14, 2007 in Clients | Permalink | Comments (0) | TrackBack (0)