February 27, 2007
Failure To Appear
The Review Department of the California State Bar Court has recommended a three year suspension, with execution stayed, but with three years probation that includes an actual suspension of 18 months (this is how the order reads) where "during a one-month period, an attorney lost her ethical footing." The attorney's specialty was juvenile dependency proceedings. After the juvenile court presiding judge decided to reorganize the appointment process, the attorney was the losing bidder on a contract to take all such cases. She then submitted to the juvenile court a document styled "In re: All My Cases" in order to "effectuate her resignation" from 319 pending cases. Although the document was returned, she stopped appearing in her cases, which resulted in some indigent clients appearing without counsel. This led to a contempt proceeding and the bar action. (Mike Frisch)
ABA Ethics Opinion On Communicating With Inside Counsel to a Represented Corporation (It's OK), + More on Restrictive Covenants in Retirement Pacts
Posted by Alan Childress
This morning's ABA email newsletter YourABA, amid a flurry of articles [here in PDF] about the ABA's mid-year meeting in Miami, also links to summaries of two recent Ethics Opinions it has issued. [The PDF above also includes this Eye on Ethics section.] One opinion deals with the Model Rule 4.2 dilemma of prohibited communications with the opposing client where the lawyer wishes to communicate with in-house counsel to a corporation or organization that is otherwise represented by outside counsel. The opinion, with related cautions about care in communicating with the client in this position and honoring a request not to communicate that way, finds that the contact is permissible. It reasons that the policies of protecting clients from pressure and harmful admissions do not apply to the in-house counsel in that situation. The formal opinion is linked here.
The other opinion deals with restrictive covenants in lawyer retirement agreements, related to a topic [when New Jersey ruled on a similar matter of non-competes] on which Jeff previously posted and analyzed here. It appears that the ABA position is more generally approving of such agreements than had been New Jersey [see previous Law.com story on Jersey here], at least in the context of in-house counsel working for a competitor after leaving the company. On a quick reading this morning, I'd say that the ABA opinion solves some of the "puzzlement" that Jeff expressed with the New Jersey ruling -- and shows a more realistic place for lawyers in the grand scheme of things as subject to employment contracts to some extent as real people are. But there are obvious differences between the ABA focus on retirement agreements and qualifications that the retirement be real, as opposed to non-competes where the in-house lawyer contemplates further employment after leaving the company.
February 26, 2007
Gerry Spence's Trial Record
On the way to looking something up, I passed through Gerry Spence's web site. The site says this: "He has never lost a
criminal case. He has not lost a civil case since 1969. He has had more
multi-million dollar verdicts without an intervening loss than any
lawyer in America." I take the factual claims at face value and do not dispute them. But what does it mean? When I was in litigation practice, the claim that you never lost a trial might actually mean you were settling too many cases too cheaply; that is, you were only trying the lay-down hands.
Or is it an aspect of the coordination function for great cases that I mentioned regarding David Berger?
Or is he just that good?
I can't tell. I do think he's entertaining as hell, and charming as anything. I was sitting in the back of the courtroom in the U.S. District Court in Cheyenne, Wyoming in 1986, and he came in, sat down across the center aisle from me, and when he caught me in the act of staring at him, gave me a big wink and a smile.
Kentucky Supreme Court Dismisses a Count of Consensual Discipline
Ben Cowgill at KentuckyLegalEthics.com has this post on the Kentucky Supreme Court's rejection of a count of impermissible advertising where the attorney had negotiated with the disciplinary counsel and agreed to public reprimand as sanction. The court looked behind the consent and found that the letter in question was not advertising that violated the bar's ad regulations (it needed no bar screening) and thus it sua sponte rejected the consented-to discipline for that count. Ben writes: "The ruling is significant because it is further evidence that the 'new' Supreme Court of Kentucky is examining disciplinary prosecutions closely, even when it receives a case on an unopposed motion for 'consensual discipline.' " [Alan Childress]
Better Late Than Never
The February 21 issue of the Lawyers Manual on Professional Conduct reports a recent disbarment ordered by the Delaware Supreme Court where the client had waited over 20 years to complain that she had been sexually assaulted by her attorney, who was representing her in a drunk driving case. The former client came forward after press reports of the attorney's suspension for similar misconduct. The court rejected the attorney's defense of laches in the bar proceeding. He had claimed he did not recall the client and had replaced the chair in which the conduct had allegedly occurred. (Mike Frisch)
Get It In Writing!
The United States Court of Appeals for the District of Columbia Circuit overturned a trial court determination that a junior lawyer was entitled to 1/3 of a more senior lawyer's contingency fee that would have paid her more than $1.3 million from claims against Iran that were collected from frozen Iranian assets. The junior lawyer had worked for the senior lawyer for about five years without a written compensation agreement but had received a 1/3 share of fees in nine earlier cases. The court concluded that the conversations between the two lawyers did not create an enforceable oral contract. (Mike Frisch)
A lawyer who moved to Florida but had never become a member of the Florida Bar was disbarred by the New York First Judicial Department. He had undertaken a case (retained over the phone and without a written fee agreement) that resulted in a settlement payment. He cashed the proceeds but did not pay the client's share. Florida brought a proceeding that resulted in an agreement to desist from Florida practice and an order to pay the client. When the payment was not forthcoming, the client complained to New York authorities. The First Department rejected the argument that disbarment was unduly harsh for a single misappropriation. (Mike Frisch)
Veasey and Freund in Business Lawyer
I'm not sure if it's the mail system or what, but I just received the November 2006 edition (Volume 62, Number 1) of The Business Lawyer. The issue leads off with two very interesting pieces. The first is an essay by co-authored by Norman Veasey (left ), the former chief justice of the Delaware Supreme Court, and now a partner at Weil, Gotshal & Manges, and a Weil associate, Christine Di Guglielmo, entitled "The Tensions, Stresses, and Professional Responsibilities of the Lawyer for the Corporation."
The second is by James C. Freund (right), entitled "Calling All Deal Lawyers - Try Your Hand at Resolving Disputes." I've met Jim Freund - he's now retired from Skadden, Arps: both in person and in writing he is one of the most engaging and charismatic people you would ever want to meet. His "Anatomy of a Merger" may be the best practical "how-to" book on being a lawyer I have ever read.
Quality of the Legal Life
The Commission on the Status of the Legal Profession has filed a report with the New Hampshire Supreme Court. The report proposes a civil Gideon rule for certain cases and discusses the need to improve access to the courts for pro se litigants in particular. The report also addresses multidiscipinary practice and concerns about the quality of life in the profession, calling for improved mentoring of young lawyers. (Mike Frisch)
February 25, 2007
LPB Gets to 30,000 Visits
Concurring Opinions (see Dan Solove, left) and PrawfsBlawg (see Dan Markel, right) both recently announced they had passed the million visit mark, and as one who has great respect and affection for the blogs and their authors, I say: Congratulations! We here in our humble backwater of the blogosphere can only hope to achieve those kinds of numbers some day somewhere. (Maybe we need a Dan.) Just to prove, however, that I am one of the world's great creative rationalizers, I did the following statistical comparison. Yes, it's true that PrawfsBlawg has had 1,000,000 visits and we have had 30,000. But look at it this way. Prawfs has had something like 80 contributors, and we've had 4 - so on a per capita basis, it is only beating us 12,500 to 7,500.
Another way to look at it is to compare the hits arising out of Mike Frisch's posts on the multiple takings of the bar exam versus my pictures of Mardi Gras. There Mike wins by a ratio of about 1,500 to 1 (the one being, I think, my daughter).
Thanks to Mike, Alan, and Nancy!
The Reality of Creative Destruction
Posted by Jeff Lipshaw
As someone who grew up in the Detroit area, and who worked as a lawyer in the auto industry for some time, it's painful to read stories about the current state of the industry and its impact on my hometown. Today's New York Times business section has a long feature on the current travails of Chrysler, now a unit of Germany's DaimlerChrysler. Chrysler's modern history began at the same time as my legal career - in 1979, when Congress bailed it out of likely bankruptcy with a package of federally guaranteed loans. By the mid-1990s, when I was the general counsel of a first-tier auto supplier, Chrysler had paid back the loans, become a model of enlightened OEM-supplier relations (largely through the leadership of Thomas Stallkamp), and, because of Bob Lutz's leadership, had the best designs of the American cars (the minivans, the Concorde, the Sebring convertible, etc.) I remember playing golf in 1995 or so at our local muni course with a young Chrysler design engineer, in which we talked about what a fun place it must be to work.
The Times article talks about Chrysler repeatedly misjudging the market, but I think misses the structural point. The creation of a new model, at least when I was in the business, was a process of design and tooling involving an investment of over a billion dollars and three years or more. While gasoline prices or consumer tastes could turn on a dime, manufacturing of cars could not. And the question was whether the American companies ever really got the idea that Toyota (now the world's leader) invented and mastered - lean design, tooling, and production that shortened and made significantly more flexible the offering of cars to the market. The reality is that American companies are still hugely invested in antiquated industrial plants (see the travails of Visteon and Delphi, for example) that are relics of almost a hundred years ago.
Yet no workers' council nor social collective is going to recreate the material engine that was. It seems to me the hard truth for policy in a mixed economy is that we need to acknowledge the reality of creative destruction - in this case, of the automotive dinosaur - far more than we do, accept that it will always take a human toll, and put our efforts behind ameliorating the human effect, rather than try to turn back the tsunami.
The Unbelievably Foolish Prospect of Shutting Down Volunteer Out-of-State Lawyers in Louisiana's Post-K Criminal Defense System
Posted by Alan Childress
The Louisiana Supreme Court issued a post-storm ruling allowing non-Louisiana lawyers to offer pro bono indigent-defense representation under the oversight and supervision of a Louisiana-licensed lawyer. It's like routine pro hac vice admission but without limiting it to a few cases. That move has saved the day for a teetering criminal defense system in New Orleans. Now a trial judge has ruled that 'supervision' means physical co-presence in court by the in-state mentor--for every hearing or court matter. The story and news link here from a nice blog by one of those selfless volunteers.
This ruling could kill the efficacy of the wonderful volunteerism on which the system's very survival lately has depended. The order is on appeal now, and I hope the understandable requirement of supervision is interpreted in a more realistic fashion. If a particular attorney shows up and does not know what he or she is doing, there is nothing in the original ruling to prevent that judge from requiring more supervision of that attorney. But a blanket prohibition on independent presence in court makes the volunteers, many of whom have years of defense experience, nearly redundant and surely would kill the incentives for such people to sacrifice and go to New Orleans. Those volunteers should be treated as heroes--actually welcomed as liberators if you will--rather than disrespected in this way, in some kind of hyper-deference to the formal requirement of an in-state license.
As someone who lived there for 17 years before Katrina, and will return, I have to say that I am saddened but not surprised by the insularity evidenced by such a ruling. I know a Louisiana native who does not think you can find a good restaurant in San Francisco. I have observed countless judges who think the way Louisiana does things (has always done things) is as natural as breathing while every other state is just crazy; millions of non-frenchmen, they think, can be wrong. Outsiders not so steeped can be viewed with skepticism and seem to prod a disabling defensiveness.
I don't think this perspective will ever change, and is not necessarily unique to Louisiana (other states are ridiculous about their in-state licensing rules in other ways). But it should be put on hold a little longer to survive the crisis in the criminal courts until they are adequately funded and staffed.