February 24, 2007
The Illinois Review Board recommends a 60 day suspension in a recent case where the attorney had neglected an estate matter for several years, leading the clients to believe that there was an active court case that had never been filed. Despite the absence of prior discipline and impressive testimony of general good character and pro bono work, the Board concludes that probation is not appropriate because the conduct was intentional and not the result of poor office practices. The attorney's overall competence hurt rather than helped for sanction purposes. (Mike Frisch)
David Berger Dies
This is a wholly unscientific observation. But just as Russell Korobkin has argued there is a coordination function for law school rankings, there is, it seems to me, a coordination function in the law firm world, particularly when it comes to plaintiffs' lawsuits. When I was practicing in Detroit, there were plaintiffs' personal injury lawyers who you knew had their pick of the best cases. So if one of them was on the pleading, it was likely that there was something to the case. And, by and large, these elite lawyers tended not to squander that asset by taking on strike-suit quality cases. You took it seriously not just because the lawyer was a good lawyer, but because it signaled a serious matter.
David Berger was one of those lawyers in the antitrust field. When the sharks went after the blood in the water by way of follow-on private civil lawsuits to the announcement of DOJ criminal price-fixing actions, firms like Berger & Montague jumped in as well. But when things settled out, if you didn't see them clamoring for a place at the head of the lead attorney pack, you could have a pretty good idea how serious the matter was or was not.
Professor Subramanian Replies....
Professor Guhan Subramanian (Harvard) honors us with a response to my February 14 comments on his New York Times op-ed proposal that public companies should eliminate charter-based staggered boards, yet retain the staggered board (which he claims to have shareholder benefits over annually-elected boards) through a provision in the bylaws (which, by the way, the shareholders could eliminate without the board's consent).
Have a look!
February 23, 2007
The Illinois Review Board has recommended disbarment of a lawyer who had represented a client formerly known as Gloria Golden but now known as Glourious Swanson Greer-Tucker in a series of bankruptcy petitions. The lawyer was accused of converting the client's trust funds and had confirmed in testimony that he acted without authorization. After a Hearing Board recommended an 18 month suspension, the lawyer offered up two promissory notes that purported to bear the client's signature and grant him authority to use the funds. This was a separate prosecution from the conversion case, which did result in the 18 month suspension. In this case, the notes were found to be forged and the attorney's contrary evidence was rejected as incredible. (Mike Frisch)
Mary Robinson, who has served as Administrator of the Attorney Registration and Disciplinary Commission in Illinois since 1992, is leaving the position. The job of administering the office that prosecutes lawyer discipline cases can be a thankless one. Mary leaves with the Supreme Court's praise
and thanks for her service. We join in wishing her well. (Mike Frisch)
February 22, 2007
Reichbach on Conflicts and Client Autonomy When One Sues For Educational Reform
Posted by Alan Childress
Amy Reichbach (a 2005 law grad of Boston College and apparently a clerk for the U.S. District Court in Boston) has posted to SSRN her article: "Lawyer, Client, Community: To Whom Does the Education Reform Lawsuit Belong?" Here is her abstract:
Important education reform litigation is often undertaken by lawyers with admirable intentions. It is too easy, however, particularly in the context of large, enduring, complex litigation where it is difficult to identify the class, much less name and pursue the class's goals, to lose sight of the client-lawyer relationship and the significance of client autonomy.
Several recent lawsuits concerning the enforceability of No Child Left Behind exemplify issues that arise in class representation. In devising legal strategies, lawyers must balance the need to address clients' immediate problems with the pursuit of longer-term strategies for change, such as organization and mobilization. It is difficult work, but only through careful attention to relationships with and among clients and communities will lawyers participate effectively in achieving meaningful education reform.
February 22, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack
If At First You Don't Succeed...
The D.C. Court of Appeals denied admission to a candidate who had passed the bar examination after failing on 12 previous attempts and who had also failed on 6 attempts to pass the Virginia bar. The court held that the applicant had failed to establish good moral character in light of evidence that he had cheated on an earlier exam and had attempted to get a disability accommodation without justification. The cheating incident involved a bathroom break where the proctor followed the applicant into the rest room and observed him through a crack in the stall. The proctor saw note cards that the applicant cut up and flushed down the toilet. The court considered the issue of who bears the burden of proof in a bar admission case. (Mike Frisch)
Drawing The Line
One interesting aspect of yesterday's post regarding the Nebraska case was that the court there treated the attorney's recovery from substance abuse as a mitigating factor even though the attorney used cocaine as well as alcohol. The D.C. Court of Appeals has declined to treat abuse of illegal substances as a basis to mitigate sanction, reasoning that illegal conduct should not work to the benefit of a lawyer who has violated ethical standards.
Note: the lawyer in this linked case was recently sent to jail for contempt of court, as he had continued to practice law after disbarment. (Mike Frisch)
February 21, 2007
Theory of Relativity
A former municipal court judge was reprimanded by the Supreme Court of Wisconsin for presiding over a case in which his niece was the defendant, another involving his nephew as a defendant and a third where the defendant was a current client. He also engaged in misconduct involving advertising himself in the yellow pages as a judge. He was defeated in his reelection attempt. (Mike Frisch)
A Prohibited Transaction
The West Virginia Supreme Court of Appeals suspended a lawyer for 60 days for obtaining a $15,000 loan from a client who also was related to the lawyer. The transaction was not sufficiently documented and the client was not advised to seek independent legal counsel. The attorney also had declared bankruptcy and did not list the loan on the bankruptcy forms. He claimed that the omission was the product of his lack of familiarity with bankruptcy practice. One aggravating factor was that the attorney had been admonished for the same misconduct in 2001. (Mike Frisch)
Addiction and Discipline
The Nebraska Supreme Court declined to impose disbarment in a case where the attorney had engaged in misconduct that would have warranted that sanction but for the connection between the multiple instances of misconduct and the attorney's addiction to vodka and cocaine. This was the fourth disciplinary case against the attorney, who was indefinitely suspended until February 2008. The attorney was found to have made substantial progress in his recovery and will be required to show continued rehabilitation in order to be reinstated. If reinstated, the attorney's recovery will be monitered for two years. (Mike Frisch)
February 20, 2007
Mardi Gras Day!
It's Mardi Gras Day in New Orleans. I will be posting pictures over the next few days at my Flickr site.
As Alan Childress has told me many times, and locals keep repeating, the essence of Mardi Gras in New Orleans is not the drunken debauchery that may well take place, if you look for it, on Bourbon Street. It is really an occasion for family and friends. I walked most of the length of Uptown New Orleans today, starting early in the morning near Audubon Park by myself, meeting up with friends at the Zulu parade, and getting to the French Quarter with them by early afternoon.
I hope you enjoy the pictures. That's Mayor Nagin up at the left, riding at the head of the Zulu Parade, and me at the right. The most treasured "throws" of the Carnival season in New Orleans are the Zulu coconuts (hand decorated by the Zulu krewe members), which by law can no longer be thrown, for fear of injuring someone. You get one by sidling up to the float and asking for one. That's what I did. Having successfully secured my coconut, I decided to take a rest behind the front lines (in the chairs owned by Tulane Law School colleague Katherine Mattes, criminal clinical law professor, who with Professor Pam Metzger, runs the Tulane Law School's extraordinary and lauded clinic).
February 19, 2007
Here is the link to the reprimand imposed in Ohio on former Governor Robert Taft for his failure to report gifts, consisting mostly of free golf outings. The widely reported lapses had resulted in a no contest plea to criminal charges. He was required, among other things, to email an apology to all state employees and media outlets. (Mike Frisch)
Who Let The Dog Out Part Two
An opinion of the Massachusetts Committee on Judicial Ethics responds to a judge's question regarding the propriety of the judge's appearing at a proceeding brought alleging that his dog is a noisy nuisance. The judge's spouse is the dog's registered owner, and thus the judge is not a party in the proceeding. With humor rarely found in judicial ethics opinions, the committee assumes that "[the judge does] not intend to act as the dog's advocate." It opines that the answer to the inquiry is not readily apparent, but that if the judge appears, he should not be identified as a judge or mix legal opinions with his fact testimony. (Mike Frisch)
An Excess of Zeal
An attorney who let his personal friendship with his lawyer-client interfere with his professional judgment was reprimanded by the Supreme Court of South Carolina. The attorney submitted a proposed settlement agreement that sought a false concession that his client had not acted as counsel to two non-lawyer business partners in the deal that had led to the dispute. When the settlement fell through, he filed a civil RICO action against opposing counsel and the opposing clients. The court found that the settlement proposal was unethical but did not involve an intentional misrepresentation; the RICO action violated Rule 3.1 because the attorney filed suit without investigation into the factual and legal basis for the liability claims.
Note: if at all possible, do not represent yourself in a disciplinary oral argument before your state's high court. The court here noted: "We accept the Panel's findings here, but not without noting that based on Respondent's conduct and statements at oral argument before the Court, we have grave reservations whether Respondent's aggressiveness in the ... litigation was an isolated event, or whether Respondent approaches the practice of law in general from a gladiatorial perspective. Respondent would be well advised to reflect on his attitude and demeanor." (Mike Frisch)
February 18, 2007
Who Let The Dog Out?
The problems that can arise in working with one's spouse resulted in the censure of a judge by the Wyoming Supreme Court. The judge had hired an employee to work with him when he was in the county attorney's office. Romance ensued. He married the employee and made her his chief clerk after taking the bench. The judge treated staff and litigants with dignity and respect; his wife did not. As a result, a private censure of the judge for failure to supervise his staff was imposed and seemed to help the problem for a period of time.
Notwithstanding the private censure, the inability of the wife to behave resurfaced. The allegations against her included mistreatment of staff and litigants, letting a dog run loose in court, letting the telephone ring in open court without answering and working a swimming pool job that cut into her court work. Staff called her "Judge Jackie" which was not meant to be a compliment. The judge referred to her as "she who is to be feared."
Solution: the spouse no longer holds the chief clerk position; the judge has retired. (Mike Frisch)