November 23, 2007
Judge Reprimanded For Endorsing Mayor
The New Mexico Supreme Court formally reprimanded a judge who had endorsed the candidacy of the incumbent mayor of Farmington New Mexico. The court found that the constitutionality of the "endorsement" clause of the Code of Judicial Conduct was not affected by the Supreme Court decision in Republican Party v. White. (Mike Frisch)
Probation For Alcohol-Related Misconduct
The Oklahoma Supreme Court imposed a public reprimand and probation for two years a one day with conditions in a case where the attorney had engaged in a series of criminal violations as a result of his alcoholism. In one instance, the attorney was incarcerated with a current client who had a pending felony DUI charge. The court rejected disciplinary counsel's request for disbarment, explaining:
"The Respondent has admitted that he is an alcoholic and he has stipulated to his past transgressions. He has sought help, though only after the bar complaint was filed. He has received good reports on his treatment and his participation in AA and counseling. He urges anyone to turn him in if he starts to drink again, and he has agreed to obtain inpatient treatment if that happens. Mr. McBride has expressed his remorse and his shame for his behavior. Mr. McBride was very candid with the tribunal. Against the advice of his attorneys, he refused to take the Fifth Amendment with regard to the testimony surrounding the DUI pending in Cleveland County, Oklahoma. The Respondent testified fully and freely about that arrest and the Trial Panel watched an hour-long highway patrol video of the Respondent's arrest, which did not show the Respondent in a good light. The Respondent stipulated that the highway patrol trooper's testimony, as well as the testimony of the off-duty police officer who called it in, would be as reflected in their reports and in the video.
[Respondent] was scheduled to represent two clients in court the day after his arrest and he arranged from jail for another lawyer to represent them. The trial panel felt that this showed that clients were affected by Respondent's alcohol-related crimes. We feel, however, that it is also to Respondent's credit that he arranged for his clients to be represented when he was unable to be there. It is to the Respondent's credit that he has wholeheartedly embraced sobriety and has done everything required of him and more in order to maintain sobriety.
Discipline imposed in cases involving alcohol-related crimes has ranged from the severe, when coupled with harm to clients,to censure, when no clients were involved. Probationary periods have
often been imposed in cases of alcohol-related offenses. While
alcoholism alone is not enough to mitigate discipline, the fact that an
attorney recognized his or her problem, sought and cooperated in
treatment and was willing to undergo supervision has convinced the
Court that severe discipline need not be imposed. "
The Minnesota Supreme Court imposed public reprimand and unsupervised probation for conduct described as follows: "that respondent was convicted of a misdemeanor in United States District Court for conspiring to commit an offense against the United States in violation of 18 U.S.C. § 371 (2006), for conspiring with a co-defendant not to inform the Railroad Retirement Board of that co‑defendant’s weekly purchase of feed for his wife’s quarter horse operation, and conspiring with another co-defendant not to inform the Railroad Retirement Board that he worked for respondent’s law practice, in violation of 45 U.S.C. § 231l and of Minn. R. Prof. Conduct 8.4(b)." (Mike Frisch)
A judge convicted of accepting bribes was disbarred by the New York Appellate Division for the Second Judicial Department. The case has received a great deal of publicity, including this report from CourtTV and a series of reports linked here from Citizens for Judicial Accountability. (Mike Frisch)
South Carolina Update
The South Carolina State Bar, which had issued a statement of concern about actions taken to admit 20 applicants who had initially been advised that they had failed the bar exam, now expresses its satisfaction with the process:
“The South Carolina Bar appreciates the candor and responsiveness of the Supreme Court in its recent statement regarding the bar examination grading error. The Bar recognizes that the Court had no obligation to explain its decision. Indeed, judicial independence and impartiality require the Court to be deliberative and to render opinions apart from external considerations. However, in making the additional statement, the Court has put to rest any speculation concerning the facts. The Statement further exemplifies the conscientiousness with which the Court addresses all the important matters that come before it. The Bar is confident that the Court has and will continue to maintain the integrity of the bar admissions process.”
That's a relief. (Mike Frisch)
November 22, 2007
Iowa Amends Advertising Rules
Looking for Meaning in Cambridge on Thanksgiving Morning
Posted by Jeff Lipshaw
I wondered this Thanksgiving morning whether there is a blog where the pharmacists who staff the 24 hour CVS in Porter Square (where I filled a prescription), or the baristas who open the Mass. Ave. Starbucks at 6:00 a.m. (where I got some coffee), or the people who work at Kohl's and will be at their stations at 4:30 a.m. tomorrow morning, or the people who drive the T trains all day on the holidays can bitch and moan about their lot in life. I happened to be reading Paul Gowder's blog post over at Law and Letters about the travails of being an exploited young lawyer, and thought I'd note a couple things.
1. The "corporate serf" thing or the big firm/do-gooder dichotomy for graduates of the elite schools is just plain wrong. Thirty years ago, I made a life style decision NOT to go to work at a law firm in New York, opting instead for less money and more lifestyle in Detroit. That option still exists.
2. With all the ink spilled about the likely fate of the vast majority of law students, why do they keep going to law school? Maybe the ones who don't see themselves as victims just don't write about it.
3. There's an article in the New York Times this morning about the perks that the big law firms offer to their associates in the competitive market for talent. The list that follows is taken verbatim from the article: candied apples on everyone's desk from the "happiness committee," milkshakes from Potbelly Sandwich Works, concierge services (pick up theater and sports tickets, dry cleaning, car repair, etc.), top off bonuses, sabbaticals, mortgage guarantees, subsidies for buying hybrid cars, on-site tailoring, personal issues coach and psychotherapists, wine parties (tuna tartare, baby lamb chops), dinner delivered from the Palm Restaurant (on a silver tray), yoga classes, nap rooms, child care, and emergency nanny services.
I return to my thoughts from yesterday about futility. Very few people in the world are lucky enough to find meaning for their lives in their work. If you are looking for meaning in your life, and doing your job as a lawyer has as much meaning to you as filling an order for a quad soy latte with extra foam, then you either have to look for meaning elsewhere, or deal with the same cognitive gap of futility in squeezing meaning out of something that is not meaningful. But lawyers at least have a chance.
When my daughter was born over twenty-three years ago, as we were still basking in the miracle of having created this baby, I remarked to the obstetrician in Ann Arbor (who was about to leave for a post-doc at Duke) how amazing it must be to see babies born every day. His response was interesting. He said that the physical act of giving birth had, to him, become routine; the magic and the meaning was in the connection with the people who were his patients.
Practicing law probably falls somewhere between making espressos and delivering babies, but the point is that there's no guarantee that work will make our lives seem important to us, and we need to deal with that either by changing the work or finding another place for meaning.
November 21, 2007
New Orleans Public Defender Held in Contempt and Sent to Ethics School for Doing His Job
Posted by Alan Childress
From what I've seen for 20 years, Jeff is right about the exhausting world of clinical teaching. I've long admired several of the Tulane clinical professors (including David Katner in the juvenile clinic which poses the kinds of problems Jeff notes). They do an amazing juggling act when they try to change the world -- a resistant world -- while at the same time making sure they are really teaching students to do it themselves.
Imagine having all the challenges of which Jeff speaks ... and then adding on top of that a judicial and criminal justice system that is broken beyond all recognition this side of Kafka. This week Loyola clinician and volunteer PD Steve Singer was held in contempt for doing a thing that I still cannot figure out what was wrong about it, and indeed seems ethically required. Read the unbelievable story here. Best I can figure, the judge denied Steve's client "indigent status" and ordered Steve to withdraw. Steve did so, but tricky Steve did it by asking someone to represent the man pro bono. I guess Steve was supposed to make sure the man went unrepresented or else had to pay for the attorney, since he was not as indigent as the judge wanted him to be, despite losing his home to Katrina. Maybe it was somehow disrespectful of the emperor's clothing status to help the client find new counsel (despite Steve's clear ethical duty to protect the client while withdrawing), given the unspoken intent of the order to make the client go unrepresented or shell out some money to some attorney somewhere.
Of the many levels that the contempt order makes no sense and should be an outrage worthy of 60 Minutes, just how is it any of the judge's business what fee arrangement the client has made with his new attorney? Short of it being an unethical contingent fee (which it is not), how is the question even proper to figure out that he is being represented pro bono?
We should be applauding volunteers like Steve Singer and the new attorney willing to take the case pro bono. They should not go to jail for doing their jobs, even for free in a capitalist society. This judge should be replaced with someone who believes in law and America. And whatever harm this does to Steve, imagine that such a tyrant is allowed to sit in judgment over accused citizens in a free country.
Oh and the really funny part of the contempt order is not just the jail time -- it is that Steve has to attend an ethics course. Good luck finding one that will teach the rules this judge lives by.
Once again, Steve, you are my hero. If you must attend an ethics class, feel free to attend mine. I wonder if I ask you to actually teach the class while attending it, will we both be in contempt?
Two attorneys appointed to represent the defendant in a death penalty claimed that a conflict of interest prevented them from handling a hearing on substantive motions. They disobeyed the trial court's order that they attend and participate in the motions hearing. The judge held the attorneys in direct contempt. Today, the Georgia Supreme Court held that the contempt was appropriate. A dissent would find that the attorneys properly declined to proceed in the face of the conflict: "The majority would compel an attorney to compartmentalize his loyalties and proceed with representing his client as long as the matter at hand did not directly involve the subject matter regarding which counsel's loyalties were divided.T he majority's holding thereby ignores this court's recognition that no conflict of interest is permissible for counsel in death penalty cases..." (Mike Frisch)
Twitter, Futility, and Belief
Posted by Jeff Lipshaw
I haven't been blogging much over the last month or two (I will be guest blogging over at Concurring Opinions in December, however), leaving Mike Frisch with the laboring (and probably far more useful) oar. I have to admit that some of my inactivity has to do with things like Twitter and Facebook and MySpace, which aren't blogs, but are simply more information than I care to have about just about anybody. So I figure that unless I have something to say on a subject, I'll do everybody a favor and keep a log of my daily activities, as illuminating as they may be, to myself.
Okay. So much for my curmudgeonly rant. Here at Suffolk we have a wonderful set of clinical offerings under the direction of Professor Jeff Pokorak (right). We were talking to someone the other day about our juvenile justice clinic, and the problem of burn-out among Legal Aid lawyers who represent juvenile clients in the system. I wondered how much burn-out had not to do to with the overwhelming amount of work without sufficient resources, but instead the ultimate futility of trying to hold back the ocean of a broken component of society on a case-by-case-by-case basis.
I have compiled a reading list for December, and one entry is Charles Taylor's A Secular Age. (This is quite a commitment, given that there are 776 pages of text.) The thesis, though, is fairly simple, and given to the reader in the first twenty pages. Why is it so easy in 2007 not to believe in God (at least in the North Atlantic world with which he is concerned) when in 1500 it was almost impossible not to? He proposes three concepts of secularity and focuses on the third: (1) the decline of religion in public spaces (i.e. the separation of church and state); (2) the decline of religious practice; and (3) the development of a culture in which it is acknowledged that there are many routes to spiritual "fullness" (Taylor's term) one of which is an exclusively humanist or secular. It seems to me that the whole notion of futility is a modern and secular one, captured by Taylor's description of a whole class of "unbelievers" (i.e. those who no longer believe in God as one might have believed in 1500), who nevertheless live the experience of something like nostalgia for the transcendent as a basis for fullness. To put it more simply, futility arises from a kind of cognitive gap: between the understanding that it's entirely possible nothing will ever make a difference, and the desire to be fulfilled. If you have no particular expectation of fullness, on one hand (see pragmatism, atheism, skepticism, post-modernism), or you are positive in your belief that everything DOES make a difference (see fundamentalism), I suspect futility is not an issue for you. But in between the assurance of a transcendent truth and an unawareness or rejection of anything but the material there is the possibility of futility.
So you just stand in awe and admiration of people who slog through it all day by day, plugging holes in the dike, or pushing back the ocean, wondering how they keep at it. Or the cosmologists like Andrei Linde at Stanford (right) working the question of the origins of the universe knowing they will never know if their theories, like inflationary cosmology, are correct. Or I suppose, in a comparatively trivial way the futility of my own intellectual endeavor, which is to keep proposing answers to imponderable questions, even though I know none of the answers will suffice.
Making Matters Worse
The New York Appellate Division for the First Judicial Department rejected as unduly lenient a proposed sanction of an attorney who had neglected two matters for the same client, lied to the client and testified falsely before a disciplinary committee. The attorney had corrected the false testimony after being confronted by a letter that impeached his version of events. The court concluded that the misconduct required a one-year suspension. (Mike Frisch)
November 20, 2007
South Carolina Statement On Bar Grading
As a result of reports suggesting the possibility of favoritism in actions taken in determining whether applicants had passed the South Carolina bar exam, a statement of explanation has been posted on the web page of the South Carolina Supreme Court. The statement notes "understandable concerns" about its decision to ignore one of seven sections of essays, but assures the public that its decision was "not the product of pressure, favoritism or discrimination of any kind."
According to a recent news report, last Thursday the State Bar's Board of Governors issued a statement calling on the court to elaborate on its initial explanation of the decision to admit 20 applicants who had been notified that they had failed. The most recent update on the story from The.State.com was posted today. It appears that concerns about this administration of the South Carolina bar exam are not going to quickly fade away. (Mike Frisch)
Moonlighting Draws Suspension
A disciplinary panel in South Carolina recommended an admonition of a lawyer who graduated from law school in 2001. The lawyer had engaged in unauthorized outside practice while employed as a judicial clerk. Further, in assisting with real estate closings, the attorney had prepared closing packets and forwarded the packets to the attorney who employed him knowing that the documents would be signed and notarized by persons not present at the closing. The panel (and a sub-panel) had found the handling of the closings was "wrong, but...not dishonest and did not amount to a misrepresentation..."
The South Carolina Supreme Court found that the conduct in connection with the closings was an ethical violation and that the sanction proposed was insufficient: a 60 day suspension was imposed. (Mike Frisch)
Unlicensed Pleading Not A Nullity
After her husband had died at a hospital, the wife was appointed administrator of her husband's estate. She retained counsel to bring a wrongful death action against the hospital. The lawyer relocated and withdrew from the representation. The wife then filed a pro se complaint, which the defendants moved to dismiss as it was filed by one not authorized to practice and thus a "legal nullity."
The North Carolina Court of Appeals held that "the fact that plaintiff was not licensed to practice law in this state does not render the complaint a legal nullity...the defect in plaintiff's complaint was cured by the subsequebt appearence of a properly licensed and admitted counsel." Nice that substance prevailed here over form. (Mike Frisch)
Look Both Ways
The baseball stadium in Auburn New York is adjacent to a two-lane street. The team had a promotion that gave free tickets to anyone who returned a foul ball. A minor ran into the street chasing a foul ball and was struck by a driver who had been drinking, as revealed by his blood alcohol test. The minor was wearing headphones and failed to look both ways prior to entering traffic. There was some evidence of the minor's prior experience in chasing foul balls per the ticket giveaway.
A suit was filed against the team owners. The New York Court of Appeals concluded that the risks of running into the street are well known and the team has no control over the street. The promotion did not create a duty that forms a basis for liability. (Mike Frisch)
November 19, 2007
Iowa Best And Super Lawyers
Iowa is famous among ethics lawyers for having the most restrictive advertising rules in the country. The former bar administrator Norman Bastemeyer would always preface his reports of updates on Iowa advertising provisions as "News From The Gulag." I was thus surprised to see a recent opinion from the Iowa State Bar Committee on Ethics and Practice Guidelines that Iowa lawyers who are rated as "Best" and "Super" Lawyers "may include in their marketing and advertising that they are rated...their rating and the meaning thereof."(Mike Frisch)
Dispute Leads To Consent Disbarment
An attorney who had been hired in August 2006 to run the Maryland office of the law firm of Kimmel & Silverman was the subject of a series of articles in the Daily Record (linked here and here). The Pennsylvania-based consumer law firm and the attorney disputed whether there was adequate support for the volume of cases for which representation had been undertaken. A number of the cases had been dismissed with prejudice. The Maryland Court of Appeals issued an order today accepting the attorney's consent to disbarment. Thus, it is likely that the question of the relative culpability of the lawyer and the firm will not be resolved. (Mike Frisch)
From Judge To Advocate
An attorney acted in a judicial capacity in a child abuse case by presiding at hearings and entering a series of three orders. The judge later entered an appearence in the divorce action between the litigants in the child abuse case and was disqualified on the motion of the other side. The Mississippi Supreme Court held that the two matters were substantially related and that the lawyer had violated Rule 1.12: "While the two cases do not share the same docket number, they do involve the same parties, the same issues, and the same concerns. As a judge, [the lawyer] personally and substantially participated in the...child abuse action, which was focused exclusively on the visitation of the minor child."
The court noted that the rule "is designed to preserve the integrity of the legal system from real or potential conflicts of interest" but noted that "[the judge] wished to become counsel of record...in order to help the minor child, and we cannot impugn that honorable impulse." The court imposed a public reprimand. A dissent favored a 90 day suspension. (Mike Frisch)
To those who know something about it, Lloyd Carr has a reputation of being a fine and thoughtful teacher. His press conference announcing his retirement exemplified it. What struck me was the honesty in a number of the answers: not every kid is a great kid, but most of them are; that obviously something did take place out on the recruiting trail between Les Miles and him that caused friction; and, most of all, that he had come to the realization that while he still had passion for the game, he did not feel that he measured up any longer to the job.
I am happy to say today my son goes to school at the University of Michigan. As much as both of us would have liked a different result in the football game on Saturday (and I wish he had worn a warmer coat), I don't think the class Lloyd displayed, given the values of the institution, is a coincidence, and I hope we all take something from it.
Another Summary Judgment Reversed In Part
A lawyer represented a client in a workers' compensation claim and won reimbusement for family and non-family home care. The defense lawyer and insurer hid behind "a wall of willful ignorance" in refusing to pay the ordered benefits. The defense lawyer "made a decision to have [the insurer] issue a check to [a non-family member] for non-family attendant care benefits in an attempt to entrap the [client] and/or [counsel] because he believed they were guilty of committing insurance fraud." He then met with the care giver, and told her she would not be prosecuted if she signed the check when she met with plaintiff's counsel. The care giver taped the meeting with plaintiff's counsel. The defense lawyer brought the tape to a prosecutor, who charged the client with insurance fraud. The client was acquitted on all counts.
Plaintiffs' counsel then sued defense counsel, the insurer and the care giver. The trial court granted summary judgment, which was reversed in part by the Florida Fifth District Court of Appeal. Summary judgment was not proper on "the issue whether [defense counsel] improperly disclosed or used the contents of...illegally obtained tapes." Further, there are questions of fact as to defense counsel's authority regarding the investigation that preclude summary judgment for the insurer. (Mike Frisch)