December 8, 2007
Accounting for Lawyers
I have been guest-blogging over at Concurring Opinions, where I just posted something that has Accounting for Lawyers 101 embedded in it. Feel free to take a look!
December 7, 2007
The Louisiana Supreme Court granted conditional admission to two applicants for bar admission. In one matter, the attorney must receive psychiatric treatment, comply with treatment recommendations and file bi-annual reports of compliance with the Office of Disciplinary Counsel. The attorney also must have a practice monitor. In the second matter, the attorney must have a practice monitor and also file bi-annual compliance reports. In both cases, the period of conditional admission is two years. The Office of Disciplinary Counsel will recommend whether to terminate the conditions 30 days before the expiration of the two year period. (Mike Frisch)
D.C. Bar Establishes Public Website for Judicial Nominations and Info
The D.C. bar has sent around word that "[t]he District of Columbia Judicial Nomination Commission has established its own Web site at http://jnc.dc.gov to help ensure the selection of high-quality candidates for judicial office." The bar's e-brief also notes that the bar seeks public comment on a proposed revision to Comment  of Rule 4.2, a topic (the 'no-contact rule' and its complications for prosecutors and other government lawyers/investigators) on which Mike has posted here. [Alan Childress]
An attorney admitted in Kansas in 1968 has never practiced there. Rather, he has lived and practiced law in California, where he took and failed the bar exam four times. Nonetheless, he has been in California for nearly 40 years, concentrating his practice primarily in federal matters relating to immigration and labor issues. He claimed that, at the outset, he sought legal advice concerning what he could and could not do in light of his non-admitted status.
A client company sued the attorney, claiming malpractice and fraud as a result of his failure to disclose that he was not admitted in California. The lawyer also had a number of criminal charges that included similar allegations of fraud by obtaining fees for legal services. These charges led to convictions for theft as well as a for a weapons offense.
The Kansas Supreme Court upheld findings of misconduct involving Rule 5.5 (practicing law in violation of the rules governing practice in California) and 8.4 (dishonesty). The court imposed an indefinite suspension. (Mike Frisch)
When Judges Politely Disagree
The West Virginia Supreme Court of Appeals recently reversed a criminal conviction in a particularly brutal crime over the dissent of a single justice. On Tuesday, a concurrence in the case was filed that is reprinted below in its entirety:
Four members of this Court, including jurists who could hardly be characterized as coddlers of criminals, concluded that the defendant's criminal trial was so flawed that there must be a “redo.” Objecting to this Court's action we find - no surprise here - a “tough on crime” “sound bite” dissent.
It's also no surprise that the dissent bears no relation to the facts of the case. As the Court's opinion points out, the circuit court could have weighed the “other crimes” evidence, and given a limiting instruction, if that evidence was found to be relevant and reliable, etc., after a hearing. But this never happened.
“Who cares?” says the dissent. “It was a gruesome murder, the defendant is probably guilty - end of story!”
Thankfully, this Court did care, and protected the integrity of our justice system. Accordingly, I concur. (Mike Frisch)
Lawyer As Witness Rule
A decision today from the Nebraska Supreme Court applies the lawyer as witness rule (Rule 3.7) in a civil case, upholding the trial court's disqualification order. The attorney, who is admitted in Illinois, had been granted pro hac vice status in Nebraska. The client sued a number of persons and a high school, alleging that she had been falsely characterized as an abusive mother who was mentally unfit. The suit contended that "defendants conspired to destroy her relationship with her children."
The lawyer met the client in an Internet chat room: "it appears that [they] developed a friendship and ultimately a close personal relationship." When the motion to disqualify was filed, the lawyer was deposed and acknowledged that he had witnessed a series of interactions between his client and certain defendants. The client appealed the disqualification order.
The court, noting that the moving party bears the burden of establishing that the testimony will be necessary, found that burden had been met here. The testimony is material and unobtainable elsewhere. Although there are other witnesses to the events, "these other witnesses are unable to provide the same evidence the attorney could offer." Also, "[s]ignificant to [the court's] decision is [the attorney's] active participation in relevant altercations between the parties." There is no "substantial hardship" caused by disqualification because "[the client] should have reasonably foreseen that [the attorney] would probably be a witness at trial" and she had alternative counsel. (Mike Frisch)
Consent Procedures Facilitate Prompt Resolution Of Bar Discipline Case
A decision by the Pennsylvania Supreme Court demonstrates the value of procedures for consent discipline in bar matters. The attorney, who had two prior informal admonitions, had been retained to defend a civil action. The suit was dismissed for inactivity and the lawyer so advised his clients. Problems started when the suit was reinstated. The attorney failed to advise the clients of the renewed suit, failed to defend the case (including not even attending the trial) and made misrepresentations to the clients and the court (he falsely claimed the clients had declared bankruptcy). Judgment was entered against the clients for over $534,000. The clients then learned of the above developments and obtained new counsel. However, the judgment has been collected and the attorney has no malpractice insurance.
Disciplinary Counsel and the attorney agreed to the above facts and proposed a suspension of 18 months. As a result, the case was submitted to a disciplinary panel in August of this year and now is concluded. The court adopted the joint recommendation for discipline. Such a result is impossible in a jurisidiction (like D.C.) that has no consent procedures. The mutual benefit here is that the disciplinary panels can devote more time and attention to contested cases and the attorney must petition for reinstatement, which offers a measure of public protection. (Mike Frisch)
December 6, 2007
Disclosure Rule Not Ready For Prime Time
An article in this month's California Bar Journal reports that the effort to adopt a rule requiring an attorney to disclose to a prospective client that he or she does not carry malpractice insurance has stalled. The Bar's Board of Governors narrowly approved a proposal for further study of the issue in light of proposed amendments. (Mike Frisch)
Sorting Through The Garbage
The Oregon Supeme Court reversed a criminal conviction of a defendant for sexual abuse of a minor child. The issue: "defendant challenges a trial court's decision to allow the jury to hear a recording of defendant making disparaging comments about his attorney and threatening to "sign [his] kids over to the state" if his mother did not retain a different attorney for him. Defendant contends that his comments about his attorney were inadmissible under the evidence code and that allowing the jury to hear them violated his constitutional right to counsel. The Court of Appeals decision affirmed the trial court's judgment. State v. Knight, 209 Or App 562, 149 P3d 164 (2006). We allowed defendant's petition for review and now agree with his argument that admission of his recorded comments was error and grounds for reversal. "
The transcript of the defendant's remarks--rather graphic stuff-- is in the opinion. The recording was offered to impeach the defendant's testimony "about his love and concern for his children..." The court majority concluded that "defendant's persistent references to trial counsel as 'this fucking attorney' and 'this motherfucker' undoubtedly focused the jury's attention on defendant's personal and professional conflict with trial counsel--a conflict that had no relevance to any issue before the jury."
The dissent notes that trial counsel did not offer redaction of the offending statements as a solution: "The majority...makes it the trial court's responsibility to sort through the garbage and decide what is admissible and what is not. That traditionally has not been, and should not be, a trial court's responsibility."
As a former public defender and court-appointed private lawyer, I am thankful that I never had to make a closing argument in the face of evidence like this. If my clients ever felt this way, at least it wasn't memorialized on tape. (Mike Frisch)
"Ambitious, Arrogant, And Overly Driven"
It seems like this may be a day of interesting bar discipline cases. The Illinois Review Board issued a recommendation in a case involving billing misconduct by an attorney in an insurance defense firm. The firm had a minimum billing requirement of 900 hours per six months that gradually increased to 2100 hours per year. The attorney worked ungodly hours--in the office at 6:15 am and returning home at 8 pm or after. He worked every Saturday and Sunday, taking two or three vacations in over 13 years. Needless to say, he met the firm's billing requirements.
Nonetheless, the attorney billed triple time for three cases heard together, billed for court appearences he did not make, depositions he did not attend and other services he had not performed. When discovered, he resigned from the firm and self-reported to the bar. The fraud involved at least $28,000, which the firm refunded to the overcharged clients.
Why did this happen? According to the board:
" Adams testified that his misconduct arose out of his desire to achieve, rather than being motivated by financial gain. Adams stated that he had been ambitious, arrogant, and overly driven and that he thought he had to be 'the number one guy.' He perceived the number of hours billed as the way to achieve. Adams recognized that his behavior was wrong and accepted sole responsibility for his misconduct. He testified that this type of behavior was limited to billing at Williams, Montgomery and did not extend into other aspects of his life
Adams also testified that he had come to understand that being number one was not the key and that being good was much more satisfying. He had learned from the lawyers with whom he shared space that the important thing was not to nickel and dime clients or sneak an hour here or there, but to help people. Adams testified that that was what he was trying to do in his current practice. "
The Board recommends a suspension of 5 1/2 months. A dissent would impose a one year suspension. (Mike Frisch)
"An Unappreciated Gad Fly"
A very interesting bar discipine case was decided today by the Maryland Court of Appeals. The attorney is admitted only in Maryland and has never practiced law. He is employed by the U. S. Department of Agriculture. He was suspended without pay from his job for 14 days and initiated proceedings that led to an appeal to the Merit Systems Protection Board("MSPB"). He came to believe that the judge and some witnesses had violated attorney ethical rules and considered his own duty to report such misconduct. Part of the disciplinary case involved his dealings with D.C. Bar Counsel.
He made a series of phone calls to the MSPB during which he concealed his identity and suggested that he was calling "on behalf" of D.C. Bar Counsel (in fact, he had no such authority). The calls were intended to discover the bar membership of the judge, who is admitted in California but not D.C. He also filed three complaints with D.C. Bar Counsel, which could not proceed as none of the persons complained about are licensed in that jurisdiction.
Disciplinary charges were brought in Maryland, alleging violations of Rules 3.3 and 8.4. The trial court rejected the 3.3 charge, holding that the calls concealing his identity did not violate that rule. The bar information is public and "[t]he use of pseudonyms by the Respondent did nothing to mislead the call recipients to their detriment." The attorney violated Rule 8.4 in his "apparent attempt to invoke the authority of the Office of Bar Counsel while dealing with various people at the MPSB." The trial court characterized the attorney as "an intelligent career civil servant who has an inflated view of his role...an unappreciated gad fly."
The court affirmed the trial court's legal conclusions and rejected Maryland Bar Counsel's recommendation of disbarment. Reprimand was imposed. (Mike Frisch)
December 5, 2007
Best Summary of the Year of Legal Ethics Stories
Posted by Alan Childress
I highly recommend at least a quick read of this blog post by Legal Ethics Forum naming its top ten legal ethics events and stories of 2007. It is a really thoughtful survey, including international stories too, and be sure to follow the post past its top ten to its honorable mentions. Nice compilation by John Steele, with obvious contributions by others at the site and readers.
The only thing I'd add is the loss this year of some great voices in the teaching and practice of legal ethics, such as Father Robert Drinan. In addition to his legendary leadership in the Church and Congress, activism for peace and humanity, and teaching and writing on legal ethics at Georgetown, I know that Father Drinan was a personal mentor and hero to Mike Frisch.
Can I ask John to add an entry (or better yet a new post) of some of the people related to ethics who are worthy of an In Memoriam this year? I am sure he and his readers, and Mike and Jeff here, have some good ideas for such recognition.
AALS Fall 2007 Newsletter for Section on Professional Responsibility
Posted by Alan Childress
Here [Download bulletin.pdf] is a PDF file of a special time-sensitive Fall 07 section newsletter produced by the AALS Section on Professional Responsibility. It contains special announcements about the AALS annual meeting in New York City early next month (including section activities and panels), plus other announcements of ethics meetings and competitions (like McGeorge's ethics trial competition March 13-15) and other activities throughout the U.S. in early 2007. At the AALS conference, Fordham is hosting a section dinner on Jan. 3 that requires an RSVP by Dec. 14. The bulletin has news of your chance to nominate for the ABA's Michael Franck Professional Responsibility Awards, where past honorees have included the late Father Robert Drinan and also Monroe Freedman, as well as news of a professional teaching award by the ABA. Thanks to editor Randy Lee and section president Russ Pearce -- and all involved in this bulletin -- for allowing LPB to post it for members and non-members alike interested in meeting and news on legal ethics. The editor anticipates a follow-up with more news, law summaries, and scholarly blurbs, but this abbreviated newsletter, too, is quite useful for its announcements.
Disbarment And Contempt Upheld
The Massachusetts Supreme Judicial Court upheld an order of disbarment and contempt of a single justice. Among the instances of misconduct:
"The respondent owns and maintains a Web site on which she posts information about allegations of child sexual abuse. In 2001, the respondent represented a father in a paternity and custody action in the Probate and Family Court who had been accused of sexually abusing his minor son. The son had also been the subject of a care and protection proceeding in the Juvenile Court. The respondent posted on her Web site information that had been impounded in the care and protection action, e.g., information identifying the son as having been allegedly sexually abused by his father, including the son's full name and photographs of him. The respondent also posted the full names of the son's mother and a half-brother (the product of the mother's partnership with a man whom she married and later divorced); pleadings from the mother's divorce action; and comments by the respondent characterizing the mother as a perjurer who had conceived both children out of wedlock and who had falsely accused both fathers of sexual abuse."
The court rejected a number of procedural objections concerning the disbarment and contempt. The contempt involved violation of the disbarment order. The attorney was jailed for four days until the contempt was purged.
The case is In The Matter of Johnson, decided December 5, 2007. (Mike Frisch)
Mass Suspension In Ohio
The Ohio Supreme Court suspended 345 attorneys for failing to comply with the court's registration and fee requirements. The notice from the court's web page states:
"The vast majority of practicing attorneys in Ohio, more than 99 percent, met their registration requirements for this biennium. The number of attorneys suspended for not meeting the requirements is less than last biennium when more than 13,800 attorneys failed to meet the registration deadline and had their law licenses suspended. Currently there are 55,777 registered attorneys in Ohio, of which 41,674 are active, 11,164 are inactive, 261 are corporate, and another 2,678 are retired. Only attorneys who have active or corporate status are required to register for the biennium." (Mike Frisch)
The Delaware Supreme Court adopted an unusual sanction proposal in a case involving an attorney who had stipulated to a number of ethical violations. The attorney is publicly reprimanded and suspended for three months. He also may not be a notary public. Nothing out of the ordinary there. However, when he resumes practice, for the next five years that practice will be strictly limited to (1) residential real estate closings for a flat fee and (2) criminal matters. The Board on Professional Responsibility's report, explaining its rationale for the sanction, is attached to the court's opinion. (Mike Frisch)
Business Transactions With Clients
An interesting decision yesterday from the Indiana Supreme Court deals with the civil implications of a possible violation of Rule 1.8(a)(business transaction with client). The client was a construction company that built the lawyer's home. The lawyer drafted the contract, which may have standard, but also was involved in contract revisions. When the client was sued by a supplier of materials, the lawyer and his spouse were brought in as third party defendants. The lawyer contended that the rule was inapplicable in light of the comment that excludes standard transactions in the ordinary course of the client's business. The court held that summary judgment for the lawyer was improper as there were potential issues of fiduciary breach and fair dealing. (Mike Frisch).
December 4, 2007
More on Models and Games
Posted by Jeff Lipshaw
I apologize to Alan (and readers here); I've been guest-blogging over at Concurring Opinions (which just celebrated its 2,000,000th hit), but I thought I'd repeat over here some comments on the article he so kindly highlighted.
I followed the Larry Solum model of posting a thought piece, and then later a more fulsome exploration of the topic. In a prior iteration, the thought piece was known as "Aboutness, Thingness. . . ." The last thing to go was the old title, and the second to last were the first several paragraphs of the old introduction, I suppose because the words are like children, these partic ular words had been around since I first put fingers to keyboard, and, if truth be known, I thought they were really clever. But these are all aspects either of self-deception or unwillingness to make choices, and who of all people inspired me but Katie Holmes (or at least her character in Wonder Boys, Hannah Green) who observed to Michael Douglas (as Grady Tripp) that writing was about making choices and he had made none in the manuscript of his second novel.
The gist of the piece, if I were to put it blog-colloquially, is how some modes of making sense of cause-and-effect, particularly in the realm of human behavior, just plain miss the boat. In natural science, an example would be trying to explain dog behavior and conditioning at the level of physiology. That level of explanation might suffice for a physiologist who is interested in measuring muscle contractions at feeding time, but it doesn't tell the microbiologist much, nor does it do much to explain at the level of operant conditioning. In the social sciences, the distinction would be (courtesy of historian Thomas Haskell), the difference between explanatory cause and attributive cause. If you ask the thug why he beat the old man, an answer that involves neural pathways and muscular contractions may explain cause and effect at one level, but it doesn't make sense in the same way this answer does: "because I wanted his wallet full of money."
The part of the piece with which I had the most fun was where I applied the foregoing to the 2003 Yale Law Journal article by Alan Schwartz and Bob Scott on contract interpretation. In a nutshell (but you will have to read the piece to see why), my claim was that their mode of explanation simply missed the boat in the same explanatory versus attributive way.
December 4, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack
Treatment For Previously Undiagnosed Condition Leads To Reinstatement
The North Dakota Supreme Court reinstated an attorney suspended in 2002 who had also been suspended in Minnesota on a reciprocal basis and for additional misconduct. The attorney had paid costs and restitution. Further:
"at the time of [the attorney's] discipline she suffered from undiagnosed bipolar disorder, which affected her ability to carry out her responsibilities to clients. The Hearing Panel also found that [the attorney] is currently on medication for her disorder, and with adjustments to her medication and case load, [the attorney] has been able to work productively as a paralegal for the [named] law firm during the past two and one-half years." (Mike Frisch)
Concurrent Sanction In Bar Discipline Case
An attorney indefinitely suspended earlier this year with the right to seek reinstatement after 90 days was the subject of additional charges addressed today by the Maryland Court of Appeals. The court held that the findings of misconduct were "substantially similar to those in [the attorney's] previous case and to a certain extent the time periods involved in the two actions overlap...it is appropriate to consider [the attorney's] present violations as a continuation of his previously improper conduct." A concurrent suspension of 90 days was imposed and the attorney may seek reinstatement after six months.
A dissent, joined by two judges, would impose disbarment: "it is not the overlap of the prosecution and pendency of these cases that should be the focus of the sanctions analysis, but rather the actual dates of the misconduct...[t]he seperation becomes even more meaningful in light of the external efforts made to get Respondent to conform to the ethical norms and his continued refusal and failure to do so...Respondent remains resolutely oblivious to the ethical expectations and requirements for the safekeeping and accounting of trust monies...I would disbar..." (Mike Frisch)