Wednesday, April 30, 2008
The New York Advisory Committee on Judicial Ethics has issued an opinion concluding that a judicial association may bestow honorary membership to Pakistan Supreme Court justices who were forcibly removed from office. However:
"There is no ethical impropriety in judicial associations extending honorary memberships to two justices of the Pakistan Supreme Court who were forcibly removed from the court and currently are under house arrest. A public announcement about doing so, however, is an improper use of the prestige of judicial office that would involve judges in a matter of controversy, potentially with political overtones, and with implications for American foreign policy. The associations, therefore, should abstain from any such public announcement." (Mike Frisch)
The Massachusetts Supreme Judicial Court affirmed the dismissal of a civil action against a judge in the case of Liu v. Moynihan and Others. The rationale:
"In July, 2007, Qinsheng Liu commenced a civil action in the Superior Court that, as we best we can tell from the limited record before us, concerns things that occurred during his interactions with various government agencies and officials, and in a related, subsequent criminal proceeding against him. (He was acquitted of the criminal charges.) During the course of the civil case, a Superior Court judge issued various interlocutory rulings against him. The judge also ordered him to file an amended complaint and to cease filing motions and other documents until he had done so. In October, 2007, Qinsheng Liu filed a complaint in the county court claiming that the judge had 'committed violations of the Code of Judicial Conduct,' was not impartial, discriminated against him, and was 'unfaithful to the laws,' and seeking the judge's recusal. Qinsheng Liu's complaint was treated as a petition pursuant to G.L. c. 211, § 3, and denied.
Relief under G.L. c. 211, § 3, is properly denied 'where there are adequate and effective routes ... by which the petitioning party may seek relief.' The petitioner bears the burden to allege and demonstrate the absence or inadequacy of other remedies. The petitioner has not met this burden. He has offered no reason why any of the judge's allegedly improper actions (including a refusal to recuse herself) could not be adequately addressed in a direct appeal from any adverse judgment." (citations omitted)
Posted by Alan Childress
Thanks to a pointer by reader Kelly Anders, who last week wrote on Law & Order, here is a link to the just-out "first special issue on Legal Fiction from THE LAW AND POLITICS BOOK REVIEW." From the intro:
Often during the fifteen years we have been colleagues in the criminal justice department at Radford University, we have talked about including works of fiction in our classes. Each of us has favorites. Jack is partial to RUMPOLE OF THE BAILEY and SNOW FALLING ON CEDARS. Mary often uses TO KILL A MOCKINGBIRD and A LESSON BEFORE DYING. We agreed it would be interesting to find out how others who teach courses in political science, criminal justice, or law use novels in their teaching.
Other reviewed books include I Robot, Bonfire of the Vanities, Billy Budd, The Stranger, Cat's Cradle, A Time to Kill, Harry Potter and the Order of the Phoenix, and Brave New World (shown as sold by Amazon). Plenty of other listed novels are recommended by the journal, but not reviewed yet.
Tuesday, April 29, 2008
The Oklahoma Supreme Court imposed a one-year suspension of an attorney for misconduct involving commingling and, at a minimum, simple conversion (an offense not to be confused with misappropriation). The court rejected his claim of "complete ignorance of the proper management of a trust account" in light of his undergraduate degree in, of all things, accounting. The court did consider as mitigation the attorney's rather full plate of outside activities and distractions:
"The Bar...stipulated to an array of factors that contributed to Respondent's inattentiveness to his professional responsibilities. Respondent was 'over-extended with civic and community responsibilities' during the relevant time period that 'contributed to [his] inability to properly monitor his trust account.' Respondent was the Mayor of the City of Tecumseh; President of the Pottawatomie County Bar Association; Chairman of the Pottawatomie County Democratic Party; Chairman of the Pottawatomie County Law Library Board; and on the board or executive board for Big Brothers/Big Sisters of Pottawatomie and Seminole Counties, the Tecumseh Chamber of Commerce, and the Tecumseh Growth and Development Authority. The Bar and Respondent also stipulated that he was distracted by 'politically motivated' criminal charges that ultimately resulted in a verdict of not guilty. Respondent testified that no trust funds were spent on his criminal defense because his attorneys, including the attorney representing him here, did not charge him for their services."
I would also assume that no client money was misappropriated to finance the defense of criminal charges because it would be wrong to do so. (Mike Frisch)
The Oklahoma Supreme Court accepted the resignation of an attorney who is presently subject to federal charges of robbery by force and fear and use of a firearm in the commission of a robbery. The attorney stated that he had lost his bar membership card, but would turn it in if and when it is located.
Here is a link to a story that reports on the robbery (an alleged attempt to obtain painkillers from a pharmacy) and subsequent suicide attempt. (Mike Frisch)
The Washington Court of Appeals Division I affirmed a conviction for stalking, rejecting the defendant's contention that the trial court had erred in refusing to disqualify the prosecutor's office "because one of its attorneys assisted her victim in obtaining a civil anti-harassment order." Both defendant and victim were county employees and the prosecutors office had acted in its capacity as attorney for the county in assisting the employee-victim. The court rejected the contention that the prosecutors office had violated its duty of "impartiality" under Rule 3.8, finding no such duty under the rule:
"The term 'impartial' appears nowhere in the text of or comments to
RPC 3.8. And the Washington Supreme Court has quoted a United States Supreme
Court decision to explain that prosecutors are neither expected nor required to be
The Court observed that, unlike judges, "[p]rosecutors need not be
entirely 'neutral and detached,'" and may be rewarded for initiating and
carrying out prosecutions in the name of the people. As such, they "are
necessarily permitted to be zealous in their enforcement of the law."
Although the constitution prevents prosecutors from making decisions that
are "motivated by improper factors or . . . contrary to law. . . . [T]he strict
requirements of neutrality cannot be the same for . . . prosecutors as for judges . . . ."
The Minnesota Supreme Court has put out for comment recommendations for revision of the rules governing judicial discipline. A key proposal would seperate the investigative and adjudicative functions of the Board on Judicial Standards. (Mike Frisch)
A corporation filed a lawsuit against its former attorney in Tennessee alleging an array of serious charges. The lawyer then filed a separate lawsuit against the corporation in Texas. Both matters were settled. The lawyer then sued the corporation's Tennessee lawyers for "abuse of process, fraud by concealment, and outrageous conduct allegedly resulting from [the firm's] actions(s) during discovery of the Tennessee and Texas litigation." The Tennessee Supreme Court affirmed the grant of summary judgment to the defendants. The court held that the remedy for improper representations in litigation is a motion for sanctions:
"This is a lawsuit over the conduct of litigation. The litigation that gave rise to this lawsuit was obviously contentious. The rules of procedure generally provide the proper vehicle for pursuing claims of misconduct against opposing counsel during the course of litigation...The invocation of the rules of procedure regarding the conduct of opposing counsel arising in the course of litigation should be the primary method of seeking redress, not the initiation of yet another lawsuit involving the causes of action alleged herein."
The court also held that the appeal of the summary judgment order was frivolous. (Mike Frisch)
Posted by Jeff Lipshaw
Sometimes a little facetiousness is all you need to provoke a meaningful discussion. A couple days ago, I commented on Elizabeth Warren's idea for a financial product safety commission. Apparently I made the mistake of thinking it was all about variable rate loans when in fact Professor Warren's concerns go more generally to the tricks that providers of consumer financial products bury in the fine print.
To support her point, I provided this anecdote. We never run a balance on our credit cards, but use them for convenience and the "free float." We once mistakenly underpaid a $3,000 credit card bill by about $10, and got charged interest from the date of incurrence because that is the normal provision if you run a credit balance, and you get a waiver by paying the WHOLE bill within the normal "free float" period. I can't remember who I had to call to get the interest charge removed, but I did by arguing that the provision was obviously not suited to a mistake, because the charge kicked in if you missed a $10,000 payment by $1, effectively costing you some uber-Mafia-like charge on the couple bucks. Indeed, to her point, I argued that the agreement was "defective" in failing to distinguish between a mistake and the conscious incurrence of debt.
Granting the "information asymmetries" that make markets less than perfect, and rational choice less than fully rational, the discussion comes down to whether having a federal commission to regulate consumer financial products makes more sense than other ways of tweaking the market. I noted the similarities of insurance products to credit products, and wondered whether years of regulation by insurance commissions have improved things. I think generally markets get it right more often than regulators do (I cut my teeth as a baby lawyer litigating in the Department of Energy's Office of Hearings and Appeals under the Mandatory Petroleum Allocation Regulations in the late 1970s), but I'm not fanatic about it: sometimes the markets don't work for all the reasons the behavioral economists have observed. In that vein, Peter Huang had a comment on the previous post (at MoneyLaw) about Nudge, the recent work by Richard Thaler and Cass Sunstein, suggesting that all you really want to do is tweak or nudge the market with a little bit of paternalism (not a lot), usually by changing the defaults, but not eliminating choice.
Professor Warren tells me that the Consumers Union model for financial products doesn't work, because the products are too easy to change, and still too hard to figure out. (She and Oren Bar-Gil have a piece coming out soon on it, and, by my sneak peek, it makes an impressive case for the existence of a problem, even if I have reservation about the proposal for a solution.) I agree with the idea (first articulated by Arthur Leff) that a financial instrument is more like a thing or a product than like a contract. And I recognize I'm probably not a typical consumer. I like the information I get from EnergyStar on appliances, and the data on sodium, calories, soluble fiber, and cholesterol now on food packaging. I think washing down a 600 calorie Sonic mini-cinnamon bun with a super-sweet 1,000 calorie mocha latte is disgusting (I think that's what was being advertised yesterday), but I would rather have information about it than have it banned. I am still skeptical that credit agreement-toaster analogy holds (i.e. getting disclosure on the financial products is like getting an unfathomable wiring diagram). Electrical fires are always dangerous, but some people can handle cinnamon buns with very sweet coffee, and even the provision in my credit card agreement may make sense if you are running a large balance (why should you get free credit as the default rule?).
If a commission is more likely to produce efficient market-nudging, that's something to consider. But regulatory systems usually have to choose among the disclosure model (federal securities law), the pre-approval model (state insurance regulation) or the product recall model (NHTSA and the CPSC). I'm more than a little concerned that this idea will naturally tend toward the latter two, with the law of unintended consequences taking over at some point.
Monday, April 28, 2008
Posted by Alan Childress
James Fischer (Southwestern Univ. School of Law), shown left [Southwestern has the best faculty pics], has posted to SSRN his article, "External Control Over the American Bar." It was first published in 19 Georgetown Journal of Legal Ethics, winter 2006. Here is his abstract:
Professional regulation is primarily about self-regulation. Codes of Professional Responsibility and Rules of Professional Conduct promulgated by the American Bar Association are prime examples of forum and content of self-regulation. While this approach does much to inform lawyers of their professional obligations, it does so at the macro-level, focusing on general obligations and duties. Professional codes and rules are largely silent at the micro-level; they often fail to inform lawyers of their day-to-day obligations, which are building blocks of the larger professional obligations set forth in the codes. Historically, these day-to-day activities were left to lawyers to work out on their own. With increasing frequency and detail, however, non-professional regulators are stepping in to regulate and control lawyer conduct and much of their attention is focused on the day-to-day activities of lawyers that the professional bar has largely ignored.
In this paper, I examine two non-professional groups who have entered the field of profession regulation: insurers and legislators. While for the most part insurers and legislators complement professional self-regulation, both insurers and legislators are taking positions regarding required lawyer behavior that is different in degree and kind from that required by professional codes and rules. The trend has been for both insurers and legislators to assume more aggressive postures. To date, courts have tempered the most aggressive impulses, but whether they will continue to do so is unclear.
The Virginia State Bar Disciplinary Board revoked the license of an attorney who had been suspended since 1989 for non-compliance with professional liability insurance requirements and nonpayment of bar dues. The attorney (who I began prosecuting in 1985 in a D. C. reciprocal discipline matter based on an earlier Virginia three-year suspension) had handled a lis pendens case and a divorce property settlement, deposited a fee into a personal account, and maintained a website that identified him as eligible to practice law. He also billed a client on letterhead that identified him as "Esquire."
My reciprocal case took over a decade to reach the unsatisfactory conclusion of a 30-day suspension. Perhaps it will not take quite so long to end his legal career in the District of Columbia. (Mike Frisch)
A Colorado attorney who had "knowingly converted sizeable amounts of third-party funds while serving as a qualified intermediary in their section 1031 tax-deferred exchanges" was disbarred by order of the Presiding Disciplinary Judge. While "[s]ignificant mitigating factors may overcome the presumption of disbarment" in conversion cases, none were presented. Indeed, the lawyer had defaulted and failed to participate in the disciplnary proceeding. (Mike Frisch)
An attorney who had set up a number of limited liability companies for a client was sued for state securities law violations and fraud. He had sought and won summary judgment "claiming he was only involved in securities work and the plaintiffs are unable to provide any evidence that his action caused them to invest or lose their investment. " The grant of summary judgment was reversed by the North Dakota Supreme Court:
"We hold that an attorney may be liable for violations of the Securities Act if he is an agent representing the broker-dealer, issuer, or is self-employed and effects or attempts to effect the purchase or sale of securities, and he participates or aids in any way in the sale or contract for sale made in violation of the Securities Act. An attorney who merely provides legal services, drafts documents used in the purchase or sale of the security, or engages in the legal profession's traditional advisory functions is not an agent within the meaning of N.D.C.C. § 10-04-02(1). To be liable as an agent, the attorney must do more than act as legal counsel, the attorney must actively assist in offering securities for sale, solicit offers to buy, or actually perform the sale. The question of whether an attorney is an agent who aided or participated in any way in the sale is a question of fact unless the evidence is such that reasonable persons can draw only one conclusion from the evidence." (Mike Frisch)
Posted by Alan Childress
Over at LawBiz Blog, Ed Poll wonders whether lawyers will adapt to, and adopt, social networking. In other words, can clients be developed via MySpace and Facebook? And even if they can, will the lawyers take advantage of the technology? The answer, he surmises, is largely age-based, yet he advises getting "registered...just in case." But not at the expense of more traditional networking avenues like "[g]oing to meetings, calling people or sending hand-written notes."
I would add something that seems to be lost on students and lawyers in an age-based way, too (the other age-way around): handwritten thank-you notes and other traditional communications are becoming even rarer in light of technology -- and will surely catch the recipient's eye a lot more than they used to, given the effort that seems to be required compared to emails and mass digital means. Job applicants, for example, who mail a real, cursive thank-you note after an interview will certainly stand out. Your mother was right, even if she cannot program a universal remote.
Although Maya Space is college-educated and provides links to 31 friends ranging from Paris Hilton to Jesus, his occupation is listed as "observer and guardian." One will likely have to go elsewhere, virtually or otherwise, for legal counseling or advocacy.
The West Virginia Supreme Court of Appeals reversed a criminal conviction as a result of the prosecutor's impermissible comments concerning the failure of the defendant to testify. The defendant had been charged with having a sexual relationship with a minor. When she became aware of the investigation, she consulted a Maryland state trooper friend and followed his advice to promptly confess to police. The confession was the key evidence at trial. The court concluded:
"Based upon the evidence before the jury, we cannot pronounce with any degree of certainty that the State has proven beyond a reasonable doubt that the prosecutor's comments did not contribute to the jury's verdict. As discussed above, the State presented essentially two elements tending to prove the Appellant's guilt: the testimony of J.G. and the Appellant's own confession. Only the Appellant could have contradicted the contents of her confession. In three distinct statements, the prosecutor specifically referred to the absence of any individual appearing to offer contrary evidence, drawing attention to the fact that the Appellant had not appeared to testify regarding her actions or her confession. Thus, we find reversible error in the State's impermissible comment on the Appellant's failure to testify. We cannot conclude beyond a reasonable doubt that the improper comment did not contribute to the guilty verdict, and we therefore reverse the Appellant's conviction on this basis." (Mike Frisch)
Sunday, April 27, 2008
Posted by Alan Childress
Via the site-collecting resource of Electronic Ephemera, among its recent posts, I note these three useful sites out there to be tapped (beyond "every Simpsons' couch site gag" nicely spooled, in under five minutes):
(1) SocialScan allows you to measure, simply by entering URL, a website's popularity as measured by its being linked on 12 known social sites, like Digg and Bloglines. Our own site earns 5,763 total points, which compares favorably with some of their recent examples, such as Above the Law (5,046), PrawfsBlawg (1,439), redcross.org (12,598 [I know, but they save lives]) and domaintools.com (6,308). Pay no attention to Paul Caron [left] behind the iron TaxProf Blog curtain (10,898). Slate earns 271,753 points. Mr. Skin earns 1,090 points. Poor priorities? Or maybe a methodology issue with the measuring site?
(2) Delaycast allows you to estimate flight delays in advance. "Use our on-time prediction engine to help you book your flights. We’ve built mathematical models of the U.S. air transportation system to predict delays and cancellations. If you need to make that meeting on time or are afraid of missing a connection, don’t book until you check out the predictions here!" Alternative method: just find out what flight I have booked, or which teller line I picked. [Caron, above left, is shown delayed in an airport. ]
(3) This site, BeFunky, allows you to turn photos into cartoons and uvatars. (Not quite the psychodelicious quality of our post in 2006 on a way to turn photos into Andy Warhol classics, but still nice.) They can be crude B&W sketches or modern art.
Jeff, right, is a cartoon (ironic, since he is also a cartoonist). I am shown left. I have no photo of Mike, sorry. But Sam (top) is a nice gelding (as is Jeff).
The site even always you to re-dress your image with thousands of outfits and accessories. I resisted the temptation to dress up Jeff. But it is killing me.
Saturday, April 26, 2008
The Virginia State Bar web page has just posted the decision of a three-judge court in a case on which we had previously blogged. The court imposed a public admonition with terms on a tax lawyer found to have violated Virginia Rule 7.1 by providing false or misleading information about his services to potential clients. The lawyer had earlier asserted that information about his tax services were not governed by attorney advertising prohibitions ("the services...were administrative in nature and did not involve an attorney-client relationship"). This sanction was imposed as a result of an agreed disposition. (Mike Frisch)
Posted by Jeff Lipshaw
Just to prove, I guess, that even Harvard law professors, and distinguished ones at that, can get carried away with analogical reasoning, Elizabeth Warren has proposed a Financial Product Safety Commission, on the theory that, if government regulation can protect you from an unsafe toaster, it ought to be able to protect you from an unsafe mortgage.
I thought about this yesterday morning driving out Massachusetts Avenue, and looking at the significant number of small law offices in North Cambridge and East Arlington, and the number of law students who seem to be saying that they were misled (or something more benign but no less significant financially) into running up $100,000 or so in debt to go to law school, but now cannot find jobs paying sufficient incomes to repay the loans. And I thought, what this country needs is Career Decision Safety Commission. After all, if the government can protect people from bad toasters and bad loans, it ought to be able to regulate career decisions so that people don't end up bitching and moaning about their inability to pay their student loans.
There's no end to the possibilities (not to mention the job creation for young lawyers who can't pay back their loans). I would have appreciated it, back in the 80's, if there had been a Videotape Format Safety Commission that would have kept me from buying Betamax (see above left). Or a Personal Computer Operating System Safety Commission that would have mandated disclosures that kept me from buying that Apple IIGS computer (right) whose primary value was its ability to run the "Dinowalk" and Carmen Sandiego programs. Or some agency that would have kept me from buying the worst car ever made: the 1984 Chrysler Laser. (Why did I need to be protected? Because in 1984 I was turning thirty, about to become a father for the first time, and experiencing my first of several mid-life crises. I was the poster child for somebody about to make a really bad decision about buying a quasi-sports car that had room in the back for a baby seat. If I had known that it was a decent looking body clamped on top of a K car chassis, I never would have bought it.)
Here's the problem with Professor Warren's analogy. A bad toaster or a bad baby stroller is dangerous without exception, and the problem is latent. The problem with a variable rate loan is not that the dangers are hidden, or that it is always unsafe, but that it's sometimes unsuitable. I'm not a huge fan of litigation, but it strikes me that the unsuitability doctrine that gives a cause of action to a securities purchaser against a broker (e.g. if Gordon Slicko talks Grandma on a fixed income into short selling troubled companies on margin) makes more sense than a team of government bureaucrats writing incomprehensible disclosures about financial instruments that may make a hell of a lot of sense for some people.
But that's just my opinion. I could be wrong.
UPDATE: By the way, it occurred to me that the federal government indeed did impose regulation on this process about thirty years ago: the Real Estate Settlement Practices Act, or "RESPA." When you close on a house, and spend about 45 minutes signing a whole raft of forms you never read, including the disclosures and disclaimers on your adjustable rate mortgages, and including the Truth-in-Lending disclosure on the actual annual percentage rate, and including the amount you will actually pay for your house in absolute dollars over the life of the loan (usually three or four times the amount of the purchase price), that's RESPA regulation at work.
FURTHER UPDATE: On the very serious subject of law school student loans, Alan Childress makes the very good point that the lesson of the recent Henderson and Morriss study is that entering students need to be thoughtful about slavish adherence to USNWR rankings in law school choice when considering attractive financial packages offered by "lower ranked" schools.
Friday, April 25, 2008
Posted by Alan Childress
Last week, I posted this item on a lawyer, Roger Phipps, whom the Fifth Circuit admonished by name for being unprepared at oral argument, to the point where he flippantly argued without reading cases. The Court asked where he went to school (BTW, no good ever comes of that question in this setting!). And the Court's opinion quoted his reply that it was "Loyola." Yesterday, an administrator at Loyola-N.O. sent out a mass email denying in caps ("GOOD NEWS") that Mr. Phipps was their graduate (see comments to the earlier post); the email was -- obviously, foreseeably -- posted widely on the internet.
Because that email publicly disagreed with this blog's (rather uneventful) statements that Phipps's Martindale-Hubbell entry was wrong and that he had indeed gone to LoyNO (not my main point), and because internal research rather than relying on the internet would have revealed the error, I expected a correction to be forthcoming. When silence followed and it appeared I was supposed to just accept the implicit characterization that I was stating the facts falsely, I asked the registrar at Loyola-Chicago whether Mr. Phipps was their graduate as MarHub showed (and made clear I was asking for no other information, other than confirmation or not of the public listing as J.D., 1990, from Loy.-Chi.). I identified myself and my purpose.
This morning, I received an email from the registrar at Loyola-Chicago confirming that Roger Phipps did not attend their law school. The email added that the registrar had further contacted Loyola-New Orleans, which emailed her (per a dean) to "confirm that a Roger D. Phipps is a 1990 graduate of Loyola University New Orleans" after all.
I have all along suggested that I don't think it reflects much on Loyola (any Loyola) either way that some 1990 graduate is a poor advocate who spoke without doing his homework. I stand by that, though the irony here is not lost on me. I have taught classes at Loyola, proudly, and I admire many of their professors, students, and graduates. I constantly read in the news about a clinical professor from the school fighting hard for criminal justice in a broken post-Katrina system. I co-teach in Greece with a family law professor doing cutting-edge work on reproductive technologies. One of their legal ethics professors literally wrote the book on Louisiana ethics. I have even taught some of their professors (am I that old?), such as one just named full professor for his outstanding publications on civil law property. I have hired, over the years, three of their graduates as attorneys to represent me in matters crucial to my life. One of their graduates sat as a Judge on that Fifth Circuit panel (making the attorney Phipps's gaffe even worse) and is one of the finest judges and people I have ever known. I have justifiably recommended their students, my students there, to clerkships and graduate programs.
Now I find that it is
six hours four days after Loy.-Chi. received the private correction, and way more than 24 hours after the mass email. And I still have heard nothing of a public correction. So I will just post this.