Saturday, December 15, 2007
The ABA Journal backtracked bigtime, likely due to reader outrage and the power of emails, and has re-dubbed Alberto Gonzales its "Newsmaker of the Year." Note the updated and neutered ABA Journal story and its deer-in-headlights press release.
A post and numerous comments, on the turnaround, from Think Progress are linked here. TP hat-tips a Wonkette post here, also with lots of comments (many of which I do not understand, except for "Press releases like this is what you get when lawyers and marketers have unprotected sex.").
The really good news is that this apparent demotion of A.G., AG, actually makes John Steele one step closer to truly being named "Lawyer of the Year." Even closer if you consider that Scooter Libby and Mike Nifong, initially ranked ahead of him, are no longer lawyers so they cannot carry the moniker. You know, "if for any reason..." Basically John Steele is the Suzette Charles to Gonzales's Vanessa Williams (especially if the ABA Journal puts George Burns on the cover).
If this were an Agatha Christie novel, the plaid inspector would be starting to suspect Steele by now.
Friday, December 14, 2007
The Arizona Court of Appeals, Division 2, reversed on evidentiary grounds a criminal conviction in a case where the defendant had been charged with sexual exploitation of a minor. The court held that it was not improper to deny the motion for pro hac vice admission of an Illinois attorney. The motion had not complied with pertinent requirements for such admission. The one notable fact was that the moving attorney was the father of the defendant. (Mike Frisch)
A complaint recently filed by the Illinois ARDC alleges that the attorney had been convicted in federal court of bankruptcy fraud, obstruction of justice and possession of child pornography. The lawyer is presently serving a twelve year sentence. The facts alleged in the ARDC's charging document are pretty ugly:
"Debra [the attorney's ex-wife]filed an objection in the bankruptcy case to Respondent’s attempt to discharge his financial obligations to her. In January 2006, Respondent called Debra on the telephone, represented that he had had a sexual relationship with D.R.[his ex-wife's younger sister], and further informed Debra that he had taken sexually explicit photographs of D.R. Respondent informed Debra if she did not abandon her challenge in the bankruptcy case and agree to a new financial settlement in their dissolution of marriage case, he would mail the pictures of D.R. to Debra’s parents. Later in 2006, the Federal Bureau of Investigations retrieved copies of the pictures of D.R. from Respondent’s office."
This attorney was the subject of a bar proceeding that led the United States Supreme Court to permit an attorney to communicate that he or she is a certified specialist. The Supreme Court's decision led to modification of ABA Model Rule 7.4 and the state bar rules that address the issue of certification of areas of specialization in lawyer communications. (Mike Frisch)
The Kansas Supreme Court indefinitely suspended an attorney as a result of his third conviction of driving under the influence. The investigation further revealed that he "had failed to disclose a number of his arrests and convictions when he applied for admission to the Kansas bar" in 1986. This conduct violated Kansas Rule 8.1(a). Finally, he submitted a character reference letter in the disciplinary matter without providing to the witness "the facts necessary to fully appreciate [his] current fitness." The court treated the letter as "deceptive" and as the submission of false evidence. The court states:
"Respondent has an established record of deception as to his misconduct. Should respondent ever seek reinstatement to the practice of law in Kansas and the petition is referred by the court to the Disciplinary Administrator, that office is directed to check out thoroughly every aspect of respondent's petition and investigate respondent's activities in the years that will have elapsed since his suspension and make a detailed report and hold a full hearing thereon for consideration by a hearing panel and/or this court."
This case is a reminder that a false or misleading statement in the bar admission process (here made over twenty years ago) is a ticking time bomb that can result in disciplinary consequences whenever it comes to light. (Mike Frisch)
Posted by Alan Childress
The ABA Journal has named Alberto Gonzales as its lawyer of the year, ugh, with many runners-up including (in order) Mike Nifong and Scooter Libby. Good grief. In good news, the journal's weekly online version has this story on Legal Ethics Forum's posted top ten list of legal ethics stories. Congrats to John Steele for being properly noticed for his great ethics roundup, which we had recognized here. On the other hand, there is no truth to the rumor (started by John Steele) that John Steele was named as a runner-up in the Lawyer of the Year list. That is true only in the sense that last year I was, here, named Time's Person of the Year.
I was happy to see John's post featured by the ABA, though I would actually also recognize Mike Frisch as the first to notice that Scooter's disbarment was required and inevitable, in his prescient posts here and here, a view that got a lot of attention in the blogosphere and proved correct. Further, I was left a little stunned the ABA never picked up on my war with the tattoo people, this time last year, over that toy tattoo needle Christmas gift (toy tats for tots), likely because it was the end of 2006. Or even Jeff's classic post combining string theory, Hume on God, Charelevoix ice cream, and of course a plug for renting his peninsular Michigan lake house. Most people who could pull that off have the advantage of being ADHD, but not Jeff. No such crutch for him. Anyway, just what does the ABA see as its priorities?
Thursday, December 13, 2007
The Florida Supreme Court disbarred an attorney for a series of ethics violations that the court characterized as "egregious" misconduct. Among the findings were over $60,000 in misappropriation of client funds. In one instance, the attorney went to the office of opposing counsel and demanded a settlement check. When rebuffed, he stole two paintings from the office. He initially denied that he had done so to the office manager but admitted the thefts when advised that he had been videotaped.
The attorney had a longstanding cocaine problem. The court declined to consider the addiction as a mitigating factor as the referee had found that the addiction was a "lifestyle choice and was of long duration." The attorney had actively practiced while abusing illegal drugs and had only sought treatment to avoid the consequences of his misconduct. (Mike Frisch)
The opinions of the New York State Commission on Judicial Conduct make for some interesting reading--particularly the barbs flying back and forth between commission members in their reports. A recent decision imposes censure on a judge who spoke ex parte to a police witness (who had not been called to testify) while he was deliberating on charges resulting from two neighbors' dispute over a barking dog. After the conversation (a chance encounter at a county fair), the judge found one of the neighbors guilty. The judge had prior discipline.
A concurring opinion by the committee chair (one Raoul Lionel Felder) felt that censure was too harsh because "For the last 39 years, the [judge] has been a quadriplegic. A large portion of his life has been effectively taken away...If missing from our considerations is the spark of empathy that set us apart from all other of God's creatures, our decisions are as nothing."
A dissent takes issue with the chair, and finds the sanction unduly lenient:
"The problem with Mr. Felder’s sympathetic exposition on the daily life of [the judge] is that, apparently, [the judge] either does not view his life in the same way as Mr. Felder or, more to the point, does not consider his disability an appropriate basis for mitigation in his case. I assume that if he did, his able counsel would have offered evidence to support such a claim.
We are required to limit our review of mitigation evidence to those factors that are probative of a judge’s proclivity to repeat misconduct. Nothing that I can think of about [the judges'] disability informs us on that point. If he is to be credited in this case, it should be for not playing that card. Regrettably, Mr. Felder has inappropriately chosen to play that card for him."
I'll bet the commission's deliberations are lively affairs. (Mike Frisch)
The Washington State Supreme Court reversed a decision of the Court of Appeals that had overturned a jury finding of legal malpractice. The attorney had waited until the final day under the applicable statute of limitations to file a premises liability action against a grocery store (the client had slipped on shampoo and injured her arm). The suit named the wrong defendant. The jury in the malpractice case awarded $212,000 in damages. the court here held that judgment as a matter of law was inappropriate and that there was sufficient evidence to support the jury verdict. (Mike Frisch)
The Wall Street Journal and its Law Blog focus again today on what seem to be irrefutable statistics on the higher incidence of depression among lawyers than among the general population. I don't mean at all to make light of this; too many family and friends deal with this issue, and I realize how complex a combination of biochemistry and environment depression is. I wonder sometimes if environmental stimuli to depression outpaced the evolution of the human body's ability to generate seratonin. (Hmm. Were people clinically depressed, in our modern sense, five hundred years ago?)
But do lawyers become depressed, or do people with a biochemical predisposition to depression become lawyers?
[Cross-posted at Concurring Opinions.] --Posted by Jeff Lipshaw
The New York Court of Appeals entered an order today suspending a Niagara Falls City Court Judge with pay pending final disposition of proceedings. This is the case that involved a judge who threatened to jail and revoked recognizance release of 46 defendants when no one in his courtroom "took responsibility for a ringing cell phone." The judge had brought his wrath down only on defendants, not prosecutors, defense attorneys or court personnel. The Commission on Judicial Conduct has proposed the removal of the judge. There are two dissents from that proposed sanction. One dissent notes:
"Although the ultimate cause of respondent’s bizarre behavior that day may never be known with certainty, it is uncontroverted that the conduct was a profound aberration in an otherwise unblemished career. On a human level, I simply do not believe that such an episode should outweigh a lengthy, distinguished career of public service." (Mike Frisch)
Year's Most Ridiculeable Warning Labels Announced: But Does Any Top the Classic "Once used rectally, the thermometer should not be used orally"?
Posted by Alan Childress
Pedantics tell me that you cannot feel nauseous, just nauseated. If so, then the word ridiculous makes no sense, or at least should mean that it describes a person who ridicules a lot. That would be me. Something that receives much ridicule, thus, should be ridiculated or at least potentially ridiculeable.
I enjoy ridiculatious warning labels, and last year I posted in detail on several years' worth of winners. Here is an update story from the Associated Press: the same Michigan tort reform center has announced a winner for 2007 for a label on a tractor: "Danger: Avoid Death." I have seen tractors, and people using them in bizarre ways (live--not just Joaquin Phoenix as Johnny Cash, or Kevin Bacon in Footloose), so I actually think that one is appropriate. The second place goes to an iron-on transfer patch: "Do not iron while wearing shirt." [The center's official site announcing the tractor winner is here.]
The 'bridge out' sign above is, I presume, a fake. I got it from this funny sign site (which includes many real ones, like the one I call "res ipsa loquitur," shown right), thanks to a student in my Torts class.
I still prefer the warning labels that won in years past, worth considering their origins:
- warning on electric drill for carpenters cautions: “This product not intended for use as a dental drill.”
- cartridge for a laser printer warns, “Do not eat toner.”
- digital thermometer: "Once used rectally, the thermometer should not be used orally."
The Ohio Supreme Court issued an opinion today that enjoins an unlicensed law school graduate from practicing law and forbids his application for bar admission. He had graduated in 1999 but never passed the bar in Ohio or elsewhere. He accepted employment at a law firm after lying to the firm about his status and providing fictitous attorney registration numbers. The firm discovered the deception and fired him after he had performed a variety of legal services for clients. The court concludes: "Respondent is accountable for a $1,000 civil penalty and has agreed never to reapply to the Ohio bar. Our order enjoining the filing of such an application will ensure that he does not." (Mike Frisch)
The South Carolina Supreme Court imposed a 60 day consent suspension for misconduct in connection with real estate closings:
"on approximately two to three...occasions, when another person was not present at a closing, respondent instructed a paralegal or another member of his staff to indicate on a document that they had witnessed the client’s signature when, in fact, they had not been personally present for the execution. However, by way of affidavit in mitigation, respondent states that for over three years he has strictly required the presence of a second witness at every closing and has, in fact, refused to conduct closings on several occasions due to the lack of a second witness."
The conduct violated Rules 1.1 and 8.4(a)&(c).(Mike Frisch)
The New York Appellate Division for the Second Judicial Department affirmed a jury verdict finding legal malpractice in a matter where the lawyers had represented the clients "in the negotiation and closing of a lease and purchase option agreement concerning certain commercial property." The clients wanted to manufacture barbeque sauce on the property, which had earlier been classified as a inactive hazardous waste disposal site. The lawyers had advised the clients to agree to an "as is" clause in the lease agreement. The clients claimed malpractice for failure to properly advise about the impact of the environmental issues and the effect of the "as is" provision.
A key issue at trial was causation. Further, the lawyers contended that the client's decision not to use the property was a business decision unaffected by the environmental issues. As to causation, the court majority held: "the parties have not cited, and research has not revealed, any case from the Court of Appeals or any other other court expressly holding that "but for" causation is synonymous with sole proximate cause, or that requires a degree of causation in legal malpractice cases greater than proximate cause..." The evidence was deemed sufficient to respect and uphold the jury's decision as to proximate cause.
A dissent would hold otherwise: "Both the plaintiffs' and defendants' experts testified that in representing a tenant, an "as is" lease is not uncommon...plaintiffs' expert conceded that there was no statutory or regulatory prohibitions which would have prevented the plaintiffs from using the premises for the purpose intended...To the extent that the alleged malpractice was predicated on [the attorney's] advice to see the deal through, there is no proof that such advice constituted malpractice or resulted in damages to the plaintiffs. As we have consistently held, the mere dissatisfaction with a strategic choice of counsel is not malpractice."
This case should cause some concern about the reach of malpractice liability. (Mike Frisch)
Wednesday, December 12, 2007
I cannot get the ABA icon-link to download (unlike some legal ethics sites which feature it on their blog's title-page screen shot -- I am envious of their tech know-how), so here is a retrograde-luddite mere textual link to the voting site. So far we are ahead of the website that discusses the intersection of law and magic tricks. I assume that is about some new sentencing guideline that forces a hardened criminal to watch David Blaine hold his breath, despite eighth amendment concerns. To me, the only thing more painful and stultifying to watch is reruns of Everybody Loves Raymond, especially the family interactions. Buy a lock on the door, for crying out loud! I would certainly rather watch paint dry, especially if there is a morning line on puce. Jeff, on the other hand, would form a fantasy paintdrying league and name himself the commissioner. Mike would paintstakingly locate the paint cans with inadequate warning labels.
The message seems to be that the parts of New Orleans affecting students, and Tulane Law School itself, are back strong. Here is the new video. I have been noting that reality on this blog for over a year now, since we suspended classes for a semester in 05 and got all caught back up by summer 06. Our recent classes and hiring are top notch by every measure -- and show no signs of post-Katrina regression. But stereotypes and assumptions die hard, and it is impossible to go to an academic conference without somone in the elevator asking if we are having classes yet. (I want to say, "Yeah, since January 2006, and our 06 graduation featured former presidents Bill Clinton and George Bush, plus Ellen DeGeneres in a bathrobe. You?") Anyway, this youtube-style video makes the point well. And here is a campus-wide slideshow. (I am not on either show, so this is not directly a plug for me.)
But even if a reader has no interest in Tulane or New Orleans, or is already studying law elsewhere, I still recommmend our summer school in Spetses, Greece, where I will teach Comparative Legal Profession. My former pics from the program are here. (This is a plug for me.)
Minor Wisdom's Ray Ward posts on a thorough and OCD-driven phishing attempt, including asking for photocopies of all credit cards front and back and a utility bill. I have gotten to the point where I believe this should not be a crime when targeted against anyone 55 and under (and the death penalty for targeting any vicitim over 65?). The ones under 55 have no excuse anymore when they fax these guys their utility bills and a copy of the drivers license. [Alan Childress]
A reader forwarded this link to her Bootstrapper blog post today on marketing and networking tips, and guides and links, all to get new clients, called "52 Creative Ideas for Finding New Clients." I was happy to post a pointer here. [Alan Childress]