Tuesday, December 4, 2007
The Pennsylvania Supreme Court ordered the reinstatement of an attorney suspended for "engag[ing] in a wrestling match with a deputy sheriff...[d]uring the course of the scuffle Petitioner removed a loaded .38 caliber revolver from his pocket." He was found guilty of simple assualt. He also had recommended that a non-lawyer employ him and engaged in a "sham" withdrawal to secure a hearing postponement.
The suspended attorney had moved to Florida and run a costume jewelry business and a delicatessen. He had been suspended for three months in 1975-- a 31 year hiatus from practice ("While this case is exceptional in the length of time between suspension and application for reinstatement, a 31 year absence from the practice of law does not, by itself, serve as an impediment to reinstatement.") He had been denied reinstatement twice within five years of the original suspension and had "engaged in threatening behavior against disciplinary counsel" in one of the failed attempts. (Mike Frisch)
Monday, December 3, 2007
Lipshaw on How Lawyers and Ethicists Think About Models and Games, and the Implications for Contract Interpretation and Financial Accounting
Posted by Alan Childress
My perusal of the updated SSRN L&S The Legal Prof. site -- really, and oddly, he did not tell me -- revealed that Jeffrey Lipshaw (Suffolk) has just posted his new article, "Models and Games: The Difference between Explanation and Understanding for Lawyers and Ethicists," with this abstract:
There is value in thinking about constructs of rules as games, on one hand, or models, on the other. Games are real in a way models are not. Games have thingness - an independent reality - and they can be played. Models have aboutness - they map onto something else that is real for the sake of simplification and explanation. But models and games are not dichotomous as the preceding claim makes them out to be. Sometimes models look just like games, and sometimes games can serve as models. Because models look like games, we may come to believe they are real - that the models have thingness rather than aboutness. People are prone to think some of the models they deal in all the time are real, like games, and perhaps even more real than the reality the models are supposed to represent. When that happens unreflectively in business, ethical and legal problems can ensue.
There is also a relationship between games and models as a way of thinking, and the position of the thinker as modeler, game creator, or game player. To engage in any of those acts is to use the legally trained mind to make sense of what is going on, and to act on it. But there are different ways of making sense, either by explaining or understanding, and it is not common in legal education to undertake the exercise of thinking about thinking, or theorizing about theory. I explore the consequence of confusing games and models in two contexts, financial accounting and contract interpretation, and consider the possibility of co-optation from models into games and vice versa. I conclude that practicing lawyers (or law professors) need to think about thinking itself or face the possibility of being misled by precisely the same context facing their clients. In short, lawyers need to be pragmatic ontologists.
Though of course this post assumes that "Jeff Lipshaw" really exists, despite all the evidence. And congrats to his daughter and knitter Arielle, and techwonk Simon Pride, on their first anniversary.
December 3, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)
Thanks to all our occasional and regular visitors. As we reach the 100,000 site visit level (or as TaxProf calls it, "Monday"), I want to thank Jeff Lipshaw for asking me to join his idea, and for all his very interesting posts past and future, and thank Mike Frisch for his painstaking, comprehensive, and useful reviews of state decisions on bar discipline. And here is the link to "voting" on the ABA Journal's top 100 blawg list. [Alan Childress]
In an unpublished decision, the Wisconsin Court of Appeals applied the Pennsylvania statute of limitations to a legal malpractice case and affirmed the circuit court's dismissal order. The court also sanctioned the plaintiff's appellate counsel for falsely certifying that the appendix to the brief met the court's requirements, when in fact the appendix "does not include the written decision of the circuit court, a document essential to this court's review." (Mike Frisch)
The Judicial Ethics Advisory Committee of the Florida Supreme Court has issued an opinion on ethical issues that are implicated when a lawyer who is on the judge's campaign committee appears before that judge in a criminal matter. The opinion addresses the following questions:
Whether a judge should disclose to the state when a criminal defense attorney appearing before the judge is currently on the judge’s campaign committee.
Whether a judge should disqualify himself or herself when a criminal defense attorney appearing before the judge is currently on the judge’s campaign committee.
ANSWER: Not necessarily.
If disqualification is required, whether disqualification extends to other members of the defense attorney’s law firm.
ANSWER: Yes. "
The Pennsylvania Supreme Court suspended an attorney for five years for a number of instances of misconduct including two contempt proceedings arising from "refusing to desist from attempting to represent" a criminal defendant. The attorney characterized the proceedings as "absurd and outrageous...judicial lunacy and thuggery..." and accused the judge of "hateful fervor and personal animus...allegedly fueled by what is recognized in the legal community as a penchant for alcohol and a persistent state of hung over irritability..."
When another judge held proceedings to determine the attorney's competence to handle court appointments, the attorney sent a letter to the Administrative Judge calling the proceeding a Kangaroo Court and attacking the judge in racially derogatory terms. The lawyer distributed a flyer that included a photo "of a large African-American woman with exposed buttocks sitting on the back of a moving motorcycle, next to which is stated 'Summer fun as [the judge in the competence hearing] Vacations in Camden, New Jersey.' " Needless to say, it was not a photo of the judge.
The Board and Court found that the attorney suffered from jaw cancer and that "unquestionably her illness had a serious impact upon her professional and her personal life." However, the sanction is appropriate as the attorney "remained unrepentant and continued to insist that she was entitled to malign and denigrate the judicial officials." (Mike Frisch)
Sunday, December 2, 2007
The ethical issues raised by advertising over the Internet are addressed in recent opinions from Nebraska and Oregon. The Oregon opinion finds that it is improper to pay referral fees that are contingent on the retention of the attorney. Of course, both opinions hold that any statement that violates general advertising rules is prohibited. (Mike Frisch)
The South Carolina Supreme Court imposed a reprimand by consent in a matter where the attorney had disbursed funds from escrow in connection with a real estate refinancing. Unfortunately, the covering funds had been wired to the attorney's former escrow account, and the attorney had not made sure the funds had been received prior to the disbursement. The matter underscores the strict liability nature of the duty to keep safe entrusted funds. (Mike Frisch)
A law firm sued a former client seeking approximately $1,000 in unpaid fees. The defendant filed an out-of-time answer that counterclaimed for over $200,000 in damages as a result of allegedly deficient services. The untimely answer was treated as a nullity and the defendant appealed. The Maine Supreme Court held that the defendant failed to demonstrate that the untimely answer was a result of excusable neglect as the reasons offered were "other business and resuming a vacation." (Mike Frisch)