Saturday, December 22, 2007

Dissenting With Dignity

To a casual observer such as myself, it appears that the justices of the West Virginia Supreme Court of Appeals have taken judicial disagreement to a personal level. A recent concurring opinion expounds on the responsibility of dissenting judges to uphold respect for the judicial process. As to the merits of the dissent at issue:

"It is difficult to respond to my colleague Justice Starcher's dissenting opinion with legal arguments since Justice Starcher identifies no legal support for his dissent.  I would observe that emotion-laden verbiage which could easily be perceived as showing an apparent grudge or personal animosity should never serve as the basis for a separate opinion at the appellate level.               

Because the majority decision possesses such a deep strength of legal authority, I do not believe that either of the dissenting opinions in any way weaken the authority of the Court's decision.  I believe the dissenting opinions lack logical rigor and legal support. By baiting emotions, the dissents adopt a 'political voice' rather than a 'judicial voice.'  Resorts to emotions and sensationalism generally betray the lack of a cogent legal basis for one's criticism."

This concurrence was filed in light of a recent dissent that calls the decision of the majority "morally and legally wrong...morally wrong because it steals more than $60 million dollars from a man who was a victim of a deliberate, illegal scheme to destroy his business"

I'd wager that this court's holiday party did not bring the court's warring factions together in the spirit of the season. (Mike Frisch)

December 22, 2007 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Client May Seek Speedy Trial Without Lawyer's Assent

A criminal defendant who is represented by counsel may assert a claim to a speedy trial pro se, even though counsel does not press the claim:

"Even excellent defense counsel may not be prepared to go to trial and may seek a continuance, or multiple continuances, due to the press of other business or for other perfectly proper reasons unrelated to the defense of defendant's case. The individual defendant, whose right to a speedy trial is at stake, may not care about those other cases or those other reasons. The defendant incarcerated while awaiting trial is properly concerned with his own need to resolve the charges against him. The tension between the burdens on defense counsel and the defendant's desire to resolve the charges quickly appears to have arisen in this case, in which defendant repeatedly sought a speedy trial, and counsel appears never to have sought to bring the case to trial or to call up the speedy trial motions or motion to dismiss for hearing."

The Supreme Court of Missouri ordered the trial judge to immediately hold a hearing to determine whether the defendant (who has been incarcerated for 18 months) should be released. A hearing to determine the speedy trial issue must be held within seven days. If the right was violated, the case must be dismissed. If not, the trial must be held within 30 days of the hearing. (Mike Frisch)

December 22, 2007 in Clients | Permalink | Comments (0) | TrackBack (0)

Prohibited Transaction

A lawyer who took a series of interest-free loans from a client claimed that Rule 1.8(a) did not apply because the loans were funded by a marital trust rather than by the client in an individual capacity. The Supreme Court of Washington rejected this attempt to put a form over substance spin on the rule and imposed a six-month suspension for the misconduct. The court concluded that the attorney had knowingly engaged in the misconduct:

"Holcomb's argument that he did not act knowingly is dependent on his claim 
that he lacked a fundamental understanding that the trust and marital community
were the alter egos of his client when he obtained the loans and that he had no duty
to inquire into the nature of the trust. 

       Because we reject that claim, this argument collapses.  The facts support the
conclusion that Holcomb knowingly requested a loan from Schiffner before he even
knew of the existence of the trust.  Further, our definition of 'knowledge' includes
the requirement that the lawyer should have known that a conflict existed."

A dissent would not find, as did the majority, a finding that
the attorney also violated Rule 1.7(b)
and favors a shorter suspension (Mike Frisch)

December 22, 2007 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, December 21, 2007

Barry Bonds Waiving His Attorneys' Conflict of Interest?: Reporting and Reality

Posted by Alan Childress

I'm borrowing a page from Jeff's recent and great post last week on the media's misuse of the term "hearsay" when describing the Mitchell Report's finding of Roger Clemens's use of steroids.  He exploded how the WSJ Law Blog, ESPN, and others routinely but wrongly described the evidence against Clemens as mere hearsay.  If they meant that Clemens never got a chance to cross-examine his accusers, then they were in the ballpark of the issue -- but they seemed to present it as a purely technical term and in that sense were technically wrong. 

Even in that policy sense, though, of "confronting one's accuser," I assume that Clemens had an opportunity to participate voluntarily in the investigation and declined (since it is widely reported that only Giambi and someone else less famous did participate).  But it is clear that John Kruk does not quite get the whole "truth of the matter asserted" idea, which would not make him all that different from lots of lawyers and judges I have observed.  Anyway, ESPN is wrong.  Inexplicably, Jeff did not somehow assert that the Detroit Tigers do understand Rule 801(c), or point out how fun it would be to interview dual-expert Tony La Russa, Esq., about the hearsay implications of steroid accusations.

News stories yesterday (like this AP one on ESPN's site) were making dramatic pronouncements regarding the conflicts-of-interest waiver that Barry Bonds is offering the judge in order to keep his choice of lawyers. But I do not see anything particularly dramatic or hand-wringing about this.  The judge should routinely grant the prosecutor's motion to disqualify counsel.  That denial of "counsel of choice" should be routinely affirmed on appeal, if any, as not an abuse of discretion, a la Wheat v. United States.  The risks of continuing representation in Wheat itself were controversially speculative, and many criticize the opinion as straining too hard to see a conflict in the situation presented.  Even so, the judge's discretion to DQ counsel overrode the defendant's preference of counsel.

By contrast, on the facts reported about the Bonds representation, the conflicts "risks" inherent in going forward are not speculative or ephemeral.  As I understand it, one of the attorneys will have to cross-examine his other (former?) client on a central issue in the case:  private testing of Bonds which came back positive.  That is nothing like the tepid cross-examination forecast in Wheat.  This one could be a mauling.  Or it would not be a mauling, to the detriment of his current client Bonds.  To my mind, there is no way this is a waivable conflict, and this judge will predictably grant the motion to DQ.  So I am puzzled by reports that the judge "seems inclined" to let Bonds keep his attorneys (maybe so with the one who just represented a track athlete, but the one representing Bonds's doctor?).

Another thing missing in these stories, at least the ones I have read, is whether there has been a waiver given by the former client for the successive conflict on a substantially related matter (here, the same matter).  I would not give one if I were he.  In fact, I would intervene.  Without his waiver, I do not see how Bonds's willingness to waive a conflict really matters.  Lots of current clients are willing to waive the conflict of a successive representation, but it is the former client that we should be worried about first and foremost.  Bonds cannot waive it for him.  I know there is a concurrent issue too in the current Bonds representation, and that is what the stories focus on, but they seem to forget the more looming successive conflict. 

Unless the former client really has waived it.  And even then, this might be one of the few situations of lingering loyalty in which a successive conflict should be found to be non-waivable.  It is just wrong to skewer your former client on cross on the same matter, and possibly expose him to more legal process and public shame.  Even if he is somehow OK with it. 

I teach that successive conflicts are almost always waivable (the casebook says so), but I don't really believe it in extreme cases like this.  Then if there is no skewering, we are back to the concurrent problem of kid-gloving the former client when Bonds may need him to be skewered.  And that would be the negative effect on the current representation that forms the essential conflict now--one that is ongoing and cannot be waived by Bonds, even if the former client is somehow not directly adverse.  (He is more readily materially adverse for purposes of the successive conflict above.)

Even if the two matters were unrelated, two ABA ethics opinions say that an attorney can only rarely wind up in a situation in which she needs to cross-examine a former client.  Here, the matters are related at the core, and the cross-examination is inevitable and central to Bonds's defense.  So this judge ought to grant the motion, and the media hand-wringing about "choice of counsel" to follow will miss the point that this hypo is too easy to be assigned as an ethics exam. 

Unless I am missing something.  I don't think I am, but I invite Mike or anyone to tell me why the motion to DQ is more interesting and debatable than I have made it.  The reported inclination to deny the motion may be based on some nuance of the case I am not seeing--like somehow the doctor's testimony is inherently favorable to Bonds.

Finally, some stories report (such as AP) that if Bonds gets to keep his counsel, the issue will be waived for appeal.  I think they mean that it will not be immediately appealable.  That is technically true, though this is the kind of situation in which mandamus may make its mark and allow review before trial (maybe not, from a prosecutor's writ).  I am pretty sure that once the matter is ultimately appealed, it would be reviewable, though under a tough standard asking whether there was an actual conflict that actually affected the performance.  This would be like Cuyler v. Sullivan, and again I would think there'd be ample evidence of an effect on the representation to satisfy the test (just as there was on remand in Cuyler, where the attorney admitted he softballed the cross of his other client).  So I do not agree with the various quotes of "legal experts" to the effect that Bonds has waived the issue for appeal.  The AP story says bluntly:  "By waiving conflict-of-interest issues, Bonds is precluded from appealing any conviction because of the lawyer's previous representation."  That is not correct, is it?  Is there some reason Cuyler would not apply to this waiver, to help out a defendant who should not have waived?  In the Ninth Circuit?

December 21, 2007 in Clients | Permalink | Comments (4) | TrackBack (0)

Threatening Letter Leads To Suspension

A sixty day suspension of an attorney was imposed by the North Dakota Supreme Court. In one matter, the lawyer stopped payment on a check to cover required payment to a subpoened witness. After he had been admonished for that violation, he not only continued to refuse to pay, but wrote a letter to the witness that made knowing false statements purportedly pursuant to the Federal Fair Debt Collections Act. A hearing panel found that the letter "had no substantial purpose other than to embarrass or burden a third person in that [the lawyer's] intention was to threaten and intimidate [the witness]..." In a second matter, the attorney made a knowing false statement to a tribunal in a divorce case. The court also found that the lawyer made a false statement to Disciplinary Counsel.

The court rejected claims that the evidence was insufficient to sustain the findings of misconduct. As to mitigation:

"{The lawyer] testified he 'over-identifies' with and seeks validation through his clients' causes, but he has recognized that he needs to change and has worked to change his behavior. {He] presented testimony from various individuals about his character and reputation. {He] also requests we consider his participation in the Lawyer Assistance Program, and we agree that his participation in the program is appropriate."  (Mike Frisch)

December 21, 2007 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

It's Not the Size of the Gift, But the Rationalization that Counts

Posted by Jeff Lipshaw (cross-posted at Concurring Opinions)

When I was at Tulane last year, I got a call from the Times-Picayune to comment on what has now become this story about the Fifth Circuit's recommendation that Federal Judge Thomas Porteous be impeached.  The issue on which I was asked to comment was the propriety of an alleged $1,000 hunting trip to which the judge was treated by a defendant company in a pending maritime injury case, and which was not disclosed to the plaintiff. Looking back at my comments, I now recall what seemed so odd about the whole thing.

"Federal judges by and large have the reputations of being absolute paragons of integrity," said Jeffrey Lipshaw, a visiting professor at Tulane University Law School. "The perception is that they bend over backwards to avoid even the appearance of impropriety."

Lipshaw said Porteous, who makes $165,200 a year, might have considered the value of the excursions so trifling that they would not be seen as swaying his conduct in court. If the judge thought there was something improper about the trips, Lipshaw said, why would he disclose them on his financial reports, which are submitted to the Judicial Conference and remain public record for five years? * * * "It is entirely possible that the gifts in fact did not influence him," Lipshaw said. "But even if in your own mind you know they did not make any difference, and you are just as likely to rule for or against on the merits, the very reason it smells funny is the reason you should not do it."

Yes, why take the tiny benefit and then disclose it?  Assuming the allegations are borne out, this is not as simple as saying a person is crooked.  I see the option backdating issue the same way.  You have managed either by frame of reference (model or game?) or by internal advocacy (call it rationalization) to put aside that moral tickle ("hmm, should I take that hunting trip when I have a case pending with the company; gosh, it's only a $1,000 and I will disclose it on my yearly report?" or "hmm, what's wrong with creating a document that says the options were granted when they weren't; I'm just correcting what is a stupid accounting anomaly?") David Brooks had an insightful New York Times op-ed on Barack Obama a few days back, and I think piece captures the essence of the theme.  Your sense of right and wrong has to predate and transcend the context or the frame.  Brooks observed:  "Many of the best presidents in U.S. history had their character forged before they entered politics and carried to it a degree of self-possession and tranquillity that was impervious to the Sturm und Drang of White House life." You can make an argument for anything, but there's still that smell test.

December 21, 2007 in Judicial Ethics and the Courts, Law & Business, Lipshaw | Permalink | Comments (0) | TrackBack (0)

Lien Times

An attorney who is discharged is not obligated to file a lien for payment of legal sevices prior to discharge, according to a decision issued today by the Nebraska Supreme Court. The lawyer represented a client in a divorce case and filed the lien against money paid into the court to satisfy the judgment. The attorney's discharge "did not dissolve the lien or destroy [the lawyer's] right to money that would satisfy the lien." The case was remanded to decide whether the attorney properly attached and perfected the lien. (Mike Frisch)

December 21, 2007 in Clients | Permalink | Comments (0) | TrackBack (0)

Ignorance No Excuse: Public Discipline Imposed

The New York First Department rejected a hearing panel recommendation of private censure in favor of a three month suspension in a matter involving misconduct arising out of an immigration law practice. The attorney had worked for many years as "general counsel to a corporate graphic art enterprise" before moving to immigration law. The attorney was employed and compensated by "an immigration services company owned by non-lawyers and staffed by non-lawyer agents." He also received referrals from another source.

The real work was done by the non-lawyers; the attorney appeared at hearings. He "admitted that he did not have primary responsibility for the case files and that the work done by the agents in drafting asylum applications involved some legal analysis." He did not advise the clients of the conflicts implications of the arrangement.

In rejecting the request for private discipline, the court notes that "[the attorney] ignores the fact that he openly participated in a business that blatantly engaged in the unauthorized practice of law and accepted improper fees from non-clients. While [he] suggests that he was unaware of the impropriety of such acts, we cannot accept that as an excuse." (Mike Frisch)

December 21, 2007 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Are BigLaw Firms Deciding to 'Lowball' Holiday Bonuses This Year?

The ABA Journal has this story on the phenomenon, which if it picks up would be quite a retreat from what the firms announced just a month ago with "extra" bonuses.  If so, it just turned the extra ones into "earlier" ones.  But it may be that the latest bonuses will be honored, just pegged more to performance than they had in the past.  [Alan Childress]

December 21, 2007 in Billable Hours | Permalink | Comments (0) | TrackBack (0)

Latest Newsletter by AALS Section on Professional Responsibility

A few weeks ago, the AALS section sent out an abridged fall newsletter with time-sensitive information, including meetings at the upcoming AALS annual conference in NYC, January 3-7, 2008.  The fuller version of the newsletter has just been distributed, and is downloadable by this link: aals_pr_fall_2007_newsletter.pdf.  The main addition in this version:  useful summaries of states' actions on ethics rules, recent scholarship and cases on legal ethics, member news, links to updated ethics info, and more conference announcements for the early part of 2008.  For example, the newsletter has a nice tally of which states are reviewing their rules in light of Ethics 2000, and when their adoptions go into effect.  Once again we emphatically thank all the section people involved in this important survey, including Randy Lee, Russ Pearce, Roy Simon, and Fred Zacharias, for allowing us to post it here.  [Alan Childress]

December 21, 2007 in Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Thursday, December 20, 2007

New Book Out on the Joys and Opportunities of Solo Practice

Solobychoice Long-time blawger (and Maryland attorney) Carolyn Elefant has announced here on her MyShingle site the publication of her new book on solo practice, called Solo by Choice.  Ordering details from Amazon are here

No truth to the rumor that Lindsay Lohan will play her in the Lifetime Channel movie, nor that yesterday Jamie Lynn Spears was suddenly and inexplicably dropped from the casting. 

Unrelated, except in the sense of people I sort of know writing books, and equally unsolicited:  my former student, Kathleen Hammer, has just published a hands-on workbook or journal to help children and others through the grieving process.  It is called How Do I Go On Without You?  Ordering details from Target.com are here.  Part of the description:

This book was written by a teacher after her father died, to provide others (adults and children) with a place to record their cherished memories of a loved one who has died. This book is in an interactive journaling format with writing prompts on each page and occassional introduction paragraphs for each section.

[Alan Childress]

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

Injudicious Behavior

The New York State Commission on Judicial Conduct determined that removal was the appropriate disposition in a matter where a Town Court Justice ( one Dennis LaBombard) engaged in misconduct by presiding over two cases where his step-grandchildren were defendants, contacted another judge in a case involving a step-grandchild, and asserted his judicial office to advance his private interests after a car accident."

The commission reasoned:

"Respondent engaged in a series of willful, egregious misdeeds, both on and off the bench, in which he abused the power and prestige of his judicial office for his own personal advantage and for the benefit of others.  The record establishes that he presided over the cases of his relatives and a former co-worker’s son, changed his bail decision after an ex parte call from the defendant’s mother, initiated an ex parte communication with the judge handling his relative’s case, and asserted his judicial office after a car accident.  Such 'a pattern of injudicious behavior and inappropriate actions…cannot be viewed as acceptable conduct by one holding judicial office' ...

   

Notwithstanding this well-established ethical prohibition, respondent presided over the cases of two step-grandchildren, granting the defendants an adjournment in contemplation of dismissal.  Not even the presence in the courtroom of his daughter and son-in-law, the defendants’ stepmother and father, prompted him to recognize the manifest impropriety of handling his relatives’ cases.  In addition, the fact that respondent eliminated the community service requirement effectively delivered a more favorable disposition to his family members than that agreed to by the district attorney and circumvented the procedural requirements applicable to them...

Respondent’s conduct was especially pernicious since he used his judicial influence not only to vouch for his relative, but to denigrate other individuals involved in the underlying incident.  During his ten-minute conversation with the judge who was handling the case, respondent made additional statements that conveyed to the judge the clear impression that the other individuals were more culpable than respondent’s relative.  This was a reprehensible abuse of his judicial clout...

Finally, during the same period, respondent abused the prestige of judicial office when he repeatedly identified himself as a judge after a minor traffic accident.  The record establishes that he asserted his judicial status in the context of blaming the other motorist, and not simply, as respondent has claimed, to assure the other motorist that she would be able to reach him.  Injecting his judicial status into the dispute was unnecessary and unseemly.  Respondent’s repeated references to the fact that he is a judge were a blatant misuse of his judicial prestige, demonstrating that he was using his judicial status for his personal advantage..." (Mike Frisch)

December 20, 2007 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Colquitt on Ethics and Evidence: the problem with specificity of rules

Posted by Alan Childress

Joseph Colquitt (Univ. of Alabama) has posted to SSRN his article, "Evidence and Ethics: Litigating in the Shadows of the Rules." It's forthcoming in 76 Connecticut Law Review.  His abstract is:

Obviously, it is virtually inconceivable that we could identify and catalog all of the possiblePhpthumb scenarios that will face attorneys as they litigate cases. Litigation routinely creates situations that require counsel to make difficult choices. No list of possibilities or set of rules would ever be truly complete or particularly helpful.

This article introduces, then analyzes, two scenarios to examine the customary conduct of attorneys and judges during criminal litigation. The scenarios seek to place the attorney in each scenario in a realistic predicament in which unresolved ethical questions remain after application of all evidence and ethics rules. The applicable rules are identified, analyzed, and applied within the scenarios to discuss the role of lawyers in the litigation setting. Additionally, the analysis addresses three schools of thought in professional ethics: namely, zealous advocacy, personal conscience, and professional conscience.

The first scenario is drawn from an actual homicide prosecution in which the prosecution's evidence addresses motive. Scenario 2 is built from several rape cases. The scenario examines previous false claim evidence in a rape case. In this scenario, the evidence is defense-proffered. The proffered evidence in each scenario introduces the potential for prejudice. The evidence also provides an opportunity to examine rules of evidence and ethics and how they protect or fail to protect against prejudice

The piece notes the difficulty of identifying beforehand the countless situations attorneys may face during litigation and the difficulty of drafting rules sufficiently detailed to be useful to attorneys and judges during trials, yet general enough to apply to the broad range of circumstances likely to be confronted. Nevertheless, some possibilities for strengthening the guidance to counsel during litigation are suggested.

 

December 20, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)

Disbarment For Child Molestation

The Supreme Court of Washington disbarred an attorney who had been convicted of first degree child molestation. The court majority agreed with its Board's unanimous recommendation for a sanction more severe than that called for by ABA Standards for Imposing Lawyer Sanctions due to the abuse of trust involved in the criminal conduct. The victim was an eleven year old former client of the lawyer.

A dissent favored suspension over disbarment, taking issue with the "breach of trust" predicate of the majority opinion:

"Here, of course, Day [the attorney]could not engage in consensual sexual activity with D.J.
[the victim]. Whether a lawyer's conduct is chivalrous or criminal, however, is irrelevant to
whether the lawyer breached a former client's trust because RPC 8.4(b) is not
concerned with the public's image of  the bar but protecting the public from
incompetent lawyers. See Curran, 115 Wn.2d at 768. The trust flowing from Day
to D.J. was one of a personal, not professional, nature. As such, violating this
personal trust does not necessarily implicate a lawyer's competence to practice law.

    As for D.J.'s mother, the majority cites no RPC establishing a duty between
Day and D.J.'s mother. Instead, the majority would have us believe because she
knew Day was an attorney and therefore trusted Day, Day's conduct "involved a
profound violation of trust." Majority at 16. This independent establishment of
professional trust divorced from any relevant professional duty places all attorneys
on precarious grounds. Every lawyer  now  becomes vulnerable to disciplinary
action merely because the accusing party knew of the lawyer's status as a lawyer,
trusted in that status, and was somehow aggrieved. The cornucopia of frivolity this
opens is staggering to comprehend. Surely, the majority cannot mean such
sweeping language, divorcing  professional  trust from  any professional  ethical
obligation. The majority's reasoning defeats the purpose of the rules, to protect us
from lawyers who violate professional duties. Standards std. 1.1.

  This is not to dismiss that which befell D.J. and his mother but to highlight
the central purpose of RPC 8.4(b), namely protecting the public from incompetent
practitioners. Curran, 115 Wn.2d at 768. As such, our case law draws a clear line
between conduct implicating a lawyer's fitness to practice law and conduct that
does not. Compare, e.g., In re Disciplinary Proceeding Against Huddleston, 137
Wn.2d 560, 974 P.2d 325 (1999) (false representation);  In re Disciplinary
Proceeding Against Plumb, 126 Wn.2d 334, 892 P.2d 739 (1995) (theft); and In re
Disciplinary Proceeding Against Johnson, 114 Wn.2d 737, 790 P.2d 1227 (1990)
(conversion of client funds for personal use) with Curran, 115 Wn.2d 747
(vehicular homicide).

       Here, Day's conduct did not violate any professional trust or duty placed in
him as a lawyer. As such, it does not implicate the "'characteristics relevant to law
practice.'" Curran, 115 Wn.2d at 766 (quoting ABA, Model Rules of Professional
Conduct 100 (1983))."

The relevant ABA Standard is 5.11, which lists crimes for which disbarment is appropriate and states that suspension is appropriate for non-listed serious criminal offenses. As child molestation is, to me, as indicative of moral turpitude as the listed offenses, perhaps the ABA may wish to consider its inclusion in future versions of the Standards. (Mike Frisch)

December 20, 2007 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Billing Misconduct Charges Against Contract Lawyer

On the false billing front, the Illinois ARDC recently filed charges alleging that an attorney employed by a temp service at $35 per hour to conduct a document review for Mayer Brown. The charges allege that the attorney worked a shade less than 52 hours but billed for 135 hours. Let's see if it takes the Illinois disciplinary system over nine years to resolve this case (as D.C. took in a case posted earlier today). Since this matter involves a contract lawyer, rather than a highly compensated partner in a major firm (as in the D.C. case), I suspect the result will be both faster and less sympathetic to the accused lawyer. (Mike Frisch)

December 20, 2007 in Bar Discipline & Process | Permalink | Comments (2) | TrackBack (0)

Florida Amends Bar Rules

The Florida Supreme Court has adopted a number of revisions to its rules regulating the Florida Bar. A link to the court's order highlights the changes. (Mike Frisch)

December 20, 2007 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

An Agreed Disposition

A Virginia lawyer who let three criminal appeals "fall through the cracks" leading to dismissal reached an agreement with Bar Counsel for a public reprimand with a requirement that the attorney take six hours of continuing legal education. Pretty lenient, particularly in light of the fact that Virginia has substantial CLE requirements for all its lawyers that did not seem to prevent this misconduct. Wonder if the victims of the misconduct are satisfied with this result. (Mike Frisch)

December 20, 2007 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Partners Without Written Agreements

The New York Court of Appeals held today that New York partnership law "does not shield a general partner in a registered limited liability partnership from personal liability for breaches of the partnership's or partners' obligations to each other." The case involves a bitter law firm breakup where there was no written partnership agreement. After the two warring partners became an LLP, three new lawyers were admitted to the partnership.The departing partner claimed he left over a dispute in the representation of a firm client; the remaining original partner claimed that he had left "because the LLP  was cash strapped, and blames [the departing partner] for this purported state of affairs." The departing partner sued for an accounting and breach of the partnership agreement.

The court warns: "In closing, we emphasize that the law of partnerships contemplates a written agreement between partners specifying the terms of their relationship.The Partnership Law's provisions are, for the most part, default requirements that come into play in the absence of an agreement...In this case, however, there was no written partnership agreement; therefore, the provisions of the Partnership Law govern."

A dissent takes issue with the majority's interpretation of that law: "If the...firm had remained a professional corporation, instead of turning itself into a limited liability partnership, the result in this case would not be in question: the individual shareholders of the corporation would not be liable for its obligations to [the departing partner]. I do not see why the partners of an LLP have have an obligation that the shareholders of a PC do not, and I therefore dissent. (Mike Frisch)

December 20, 2007 in Law Firms | Permalink | Comments (0) | TrackBack (0)

ElectionWatch2008 Update: Practical Magic

The Legal Profession Blog, at the ABA Journal's vote site for top 100 law blogs, is still running just ahead of the blog devoted to the intersection of law and magic.  Its strong showing is likely owing to its ambitious dual coverage:  the law OF magic, plus using magic IN law practice.  Clients just love that, at $350 an hour --213104_70697538 and keep a joy buzzer and whoopie cushion handy for those reading-of-the-will appointments.  By contrast, our blog just shows what might happen to you if you made your client's billing money disappear in 1997 -- at least assuming Mike prosecuted you for that ten years ago when he still looked like an eagle scout.  [Alan Childress]

December 20, 2007 in Blogging | Permalink | Comments (0) | TrackBack (0)

The End Of My Era

When I left Bar Counsel in July 2001, I did not suspect that cases I had prosecuted would still be pending in December 2007. Well, The District of Columbia Court of Appeals ended my career as a bar prosecutor with a decision issued this morning. The case involves charges of dishonest billing against a partner at a major firm. The hearing was held on July 7-8 and 13-14, 1998 and, as the court notes in its decision, the facts were largely undisputed. One might wonder why such a case took the disciplinary system over nine years to resolve. I will have a lot to say on that subject, and other observations, but I will wait until the time for rehearing or rehearing en banc expires.

Lisa Lerman wrote an article about this case that is linked here. (Mike Frisch)

December 20, 2007 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)