Tuesday, September 30, 2008

Sloshing Capital

Posted by Jeff Lipshaw

If you want some sane commentary these days, try reading David Brooks in the New York Times.  His column yesterday on the defeat of the bail-out bill was entitled "Revolt of the Nihilists."  Here's a taste:

We’re living in an age when a vast excess of capital sloshes around the world fueling cycles of bubble and bust. When the capital floods into a sector or economy, it washes away sober business practices, and habits of discipline and self-denial. Then the money managers panic and it sloshes out, punishing the just and unjust alike.

What we need in this situation is authority. Not heavy-handed government regulation, but the steady and powerful hand of some public institutions that can guard against the corrupting influences of sloppy money and then prevent destructive contagions when the credit dries up.

Amen.

September 30, 2008 in Hot Topics | Permalink | Comments (2) | TrackBack (0)

Pet Death Results In Lawsuit

The Washington State Court of Appeals Division I has held that claims against a veterinarian arising out of the death of the plaintiff's pet are not governed by the medical malpractice statute and, thus, that claims other than professional negligence may be brought. The lawsuit was a result of the death of an apricot colored toy poodle named Ruby. (Mike Frisch)

September 30, 2008 in Law & Society | Permalink | Comments (0) | TrackBack (0)

"A Solemn Proceeding"

A judge was ordered to appear before the Florida Supreme Court for administration of a public reprimand. The sister of his former law partner was arrested for domestic battery against her husband.

Even though the matter was not assigned to him, [he] thereafter contacted the Broward County Sheriff's Office and authorized her release to the Pretrial Release Program without the benefit of a first appearance. [He] authorized the defendant's release notwithstanding the fact that she was currently serving a sentence of five years probation for obtaining controlled substances by fraud, thus making her ineligible for [release ].

The court noted that the judge acted without full knowledge of the alleged offense or the prior record of the defendant. The Judicial Code provision requiring integrity and impartiality "is not an aspirational principle but a clear and unequivocal mandate." The reprimand will be "administered before the entire Supreme Court in a solemn proceeding." (Mike Frisch)

September 30, 2008 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Piercing The Corporate Veil In Ohio

The Ohio Supreme Court issued a decision today that modifies the court's position on piercing the corporate veil. The decision is summarized on the court's web page:

In a decision announced today, the Supreme Court of Ohio held that when a plaintiff pursuing a civil lawsuit against a corporation seeks to “pierce the corporate veil” (bypass the corporate structure and recover damages directly from a shareholder), the plaintiff must show that the shareholder used its control of the corporation “in such a manner as to commit fraud, an illegal act, or a similarly unlawful act.”

The 6-1 decision, written by Chief Justice Thomas J. Moyer, modified one part of a three-prong test for piercing the corporate veil this Court established in a 1993 decision, Belvedere Condominium Unit Owners’ Assn. v. R.E. Roark Cos. Inc. [See below for an explanation of the three-prong Belvedere test.] The effect of today’s ruling was to deny an attempt by Kimberly Dombroski, a policyholder whose claim for coverage was denied by Community Insurance Company (CIC), a wholly owned subsidiary of WellPoint Inc., to pursue recovery directly from WellPoint for her claimed physical and emotional injuries arising from alleged bad faith denial of coverage by CIC.

(Mike Frisch)

September 30, 2008 in Hot Topics | Permalink | Comments (0) | TrackBack (0)

Breach Of Trust

An attorney who had accepted fees in cash that were due to her law firm but placed the fees in a personal account was suspended for two years by the South Carolina Supreme Court. She had been convicted of a breach of trust offense and placed on interim suspension as a result. The two years will begin to run from the date of the interim suspension. (Mike Frisch)

September 30, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, September 29, 2008

AALS Professional Responsibility Section Newsletter Is Fresh Off the Presses

Posted by Alan Childress
The AALS Section of Professional Responsibility puts out a quarterly newsletter that is a gold mine (and today gold is worth its weight in gold) for any professor, student, lawyer, judge, or citizen interested in issues of legal ethics.  It is so substantively packed that we are once again grateful that they have allowed this blog to post it for the general public.  Thanks to Widener's Randy Lee (its general editor) and all of the academic contributors who make it so useful, for this generosity.  Try it here: Download AALSummer2008.pdf

September 29, 2008 in Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Delay In Filing Charges Does Not Result In Dismissal

A hearing committee of the D.C. Board on Professional Responsibility recommends a 60 day suspension of an attorney who had engaged in extensive commingling, used his escrow account to shield his assets from creditors, and sent a letter that made false representations to the IRS. The committee rejected the contention that the matter should be dismissed for delay in bringing disciplinary charges, concluding that the attorney's ability to defend the allegations had not been impaired. The committee also rejected several serious charges; thus it is far more likely that any delay harmed the bar's case more than the defense of the attorney. It appears that the matter was docketed for investigation in 2002, judging by the case number. (Mike Frisch)

September 29, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

More Than Role Playing

The West Virginia Supreme Court annulled  an attorney's license and ordered two years of supervised probation, among other conditions, upon reinstatement. The attorney had paid one Curtis Griffin to locate an individual that he had hired to renovate his office building. Thereafter, as the opinion recites:

After several weeks without hearing anything from Griffin, a series of telephone calls took place, in February 2004, between Griffin and William Curtin. Curtin was a part time process server and courier for the respondent. Curtin told Griffin that, if he could obtain a handgun for respondent Blevins, the $500 would be forgiven. In addition, Curtin indicated that there were four people the respondent wanted them to “go get” who owed the respondent money. Curtin stated that he, Griffin and the respondent would share the monies collected. One person “down in Uniontown” was to have his “brain beat in.” Unknown to Curtin, his comments were recorded by law enforcement officers. At that time, Griffin was an informant in an unrelated matter for the Ohio Valley Drug Task Force and had advised the officers about some of his contacts with Curtin.

On February 21, 2004, Griffin, with audio and video surveillance devices hidden on his body, met Curtin and respondent Blevins in an alley near Market Street in Wheeling. From there, they walked to a nearby 7-Eleven Food Store and then to respondent Blevins' law office. While in the office, the respondent confirmed that he wanted Griffin to obtain a handgun for him. Moreover, four people who owed the respondent money were discussed. First, the respondent stated that, of the amount owed by contractor Horbatak, the respondent wanted $5,000, and Griffin and Curtin could keep the excess. The respondent warned: “So you've got to let [Horbatak] know, if he opens his mouth to anyone, he's done.” Second, respondent Blevins stated that the individual in Uniontown was a former client who owed him $3,400. The respondent stated that he wanted $400 from that individual and that Griffin and Curtin could split the $3,000. Again, the respondent warned: “But you tell him, if he goes and talks to anybody on the planet, he's going to have a little problem here.” Griffin replied: “I'll cut his f*ckin' tongue out.”

            Third, respondent Blevins stated that a former client by the name of Stiltenpole in West Alexander, Pennsylvania, owed him $1,500 and that, upon collection, Griffin and Curtin could share the entire amount. As the respondent concluded: “Well, he's probably the easiest because he's a dope dealer, and he may not go squealing.” Fourth, the respondent stated that a former client by the name of Dickerson of Belmont County, Ohio, owed him $2,000. Respondent Blevins stated that, upon collection, he wanted $1,000, and Griffin and Curtin could share the remaining $1,000. As respondent Blevins stated: “This guy thinks he's a tough guy, but he'll crack like a cookie, and he has got money.”

            During the February 21, 2004, meeting, Griffin stated three times that he was a “two-time loser.” Respondent Blevins subsequently testified before the Hearing Panel Subcommittee that, although he did not believe Griffith was being truthful in making that statement, he understood the phrase “two-time loser” to mean a person with prior criminal convictions. In any event, after the comments were made by Griffin, the respondent stated:

              Mr. Blevins: “But what I'm saying is Billy [Curtin] will know exactly when I'm leaving. He knows exactly when I'm coming back. I don't care. First, I don't care what you do.”
              Mr. Griffin: “Okay. Just get the money.”
              Mr. Blevins: “But whatever you do, I'm somewhere else.”
              Mr. Griffin: “Right.”


            Finally, during the February 21, 2004, meeting, a number of other individuals who owed the respondent money were discussed, and the respondent indicated that, when Griffin and Curtin collected the money from the first four, set forth above, the respondent would give Griffin and Curtin “another list.”

            On February 24 and February 25, 2004, discussions took place between Griffin and Curtin in Wheeling: (1) at The Sportsman Club, (2) an establishment known as Little Ricky's and (3) in Curtin's vehicle, all of which were the subject of audio and video surveillance by the Ohio Valley Drug Task Force. Griffin and Curtin talked about obtaining the handgun for the respondent and about the plan to recover the various monies from the individuals discussed on February 21, 2004. In carrying out the plan, Griffin suggested that he and Curtin bring ski masks, tape and gloves.

The court rejected as incredible the assertions that the lawyer was unaware of Griffin's criminal history and that he only "role playing." As the court concluded:

It is not believable that any attorney, let alone one who has an extensive criminal defense practice, would only “pretend” to hire a known criminal capable of extreme violence and condone criminal behavior in an attempt to obtain a gun and to collect a debt. * * * Respondent could have availed himself of legal means to obtain a gun for himself and could have initiated civil suits against the individuals who owed him money. However, respondent chose not to employ those legal means to reach his goal.


      In recommending sanctions for respondent Blevins' conduct, the Hearing Panel Subcommittee found no mitigating factors, other than the consideration that he had no disciplinary history. Moreover, the Subcommittee noted that the respondent testified that “he was not suffering from any physical, mental or substance abuse issues that would have impaired his judgment or his ability to practice law in February 2004.” On the other hand, the Subcommittee determined the following to constitute aggravating factors: (1) that the respondent exhibited a dishonest and selfish motive in soliciting the services of a two-time felon to locate and extort money and obtain a handgun, (2) that the respondent refused to acknowledge the wrongful nature of his conduct and (3) that the respondent “has substantial experience in the practice of law, including an active criminal defense practice.”

I thought that a license annullment meant that one is treated as having never been admitted. In fact, it appears that the word means the same as disbarred (see Rule 3.33 of the West Virginia Rules of Disciplinary Procedure). (Mike Frisch)

September 29, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Sunday, September 28, 2008

Practice Interrupted

The New York Appellate Division for the Second Judicial Department rejected a plea to practice without interruption made on behalf of an attorney convicted of an unclassified misdemeanor for driving under the influence. He had been involved in an accident with a motorcyclist and fled from the scene. The court noted evidence in mitigation as follows:

In determining an appropriate measure of discipline to impose, the respondent asks the Court to consider his unblemished record, his excellent reputation as a former federal and state prosecutor, his military record as a lieutenant in the United States Navy Judge Advocate General Corps., his volunteer services, his character references, his expressed remorse, and his efforts to control his alcoholism. The Special Referee rendered the opinion that "[a]ll indications are that he is capable of being a valuable and productive member of the legal profession." Under the totality of circumstances, the respondent is suspended from the practice of law for a period of one year.

The court will allow the attorney to seek reinstatement after six months. (Mike Frisch)

September 28, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Saturday, September 27, 2008

The AIG Deal

Posted by Jeff Lipshaw

This is what it feels like when you are on the inside of a deal.  Can it really be that the AIG bail-out is old news, since trumped by the bigger bail-out bill, the WaMu seizure and sale, the McCain debate cancellation, the screaming session at the White House, the actual debate, and rumblings about Wachovia?

As Steve Davidoff pointed out eons ago, there was a problem with the original structure of the deal between the Fed and AIG in that it appeared to involve giving warrants to stock not yet authorized by a shareholder vote.  AIG then pulled back with a press release and 8-K suggesting that it and the Fed had gone back to the drawing board.  Also kudos to Steve.  He predicted the final form:  "I am curious to see how the parties get around this — perhaps by issuing out preferred with equivalent voting and dividend rights?"

The deal as struck now involves the Fed getting 100,000 shares of non-redeemable and perpetual convertible preferred stock.  Until the shareholders vote to authorize enough shares of AIG to permit conversion of the preferred stock into 79.9% of the common equity, the Fed holds preferred equity with a liquidation value of $500,000 (that's right, five hundred thousand dollars), but with rights to vote and receive dividends that are as if the Fed owned 79.9% of the common equity.  I haven't gone back to look at the AIG certificate of incorporation, but I'm assuming it had "blank check preferred" powers, meaning that the shareholders had granted to the board the right to issue preferred shares on whatever terms the board deemed appropriate without an amendment of the certificate of incorporation.

So.... I take back what I said about the Fed not actually owning AIG.  It does.  And it will, because there is no provision for the redemption of the preferred shares if the loan is paid back.  Moreover, the only risk to the Fed is that AIG goes into bankruptcy before the shareholder vote, because at that point it only has a $500,000 liquidation preference.  On the other hand, it still has security interests in all the valuable AIG subsidiaries in the event of a default on the primary loan.  What I haven't found yet is what consequence, if any, would follow from the shareholders not approving the amendment to the certificate authorizing the additional stock.

By the way, for all you populists out there, or others interested in class warfare demagoguery, I was curious just who the bailed-out fatcats were.  In short, who are the shareholders we are rescuing with our money?  There's a lovely little website out there called www.j3sg.com that gives the institutional shareholder make-up of public companies, as well as the companies that institutions own.  It turns out that the fatcats being rescued (at least as of June 30) are anybody who has an interest in these and other elitist institutions:  Fidelity, Vanguard, TIAA-CREF, New York State Common Retirement Fund, CALPERS, the New York State Teachers Retirement System, the Teachers Retirement System of Texas, the Public Employees Retirement System of Ohio.  I could go on and on.  None of them were bitching when AIG was climbing up the mountain!

September 27, 2008 in Hot Topics | Permalink | Comments (4) | TrackBack (2)

Friday, September 26, 2008

Credit Addicts and Their Enablers

Posted by Jeff Lipshaw

There's an old joke (I guess it's a joke) about a person searching for a lost wallet at night under a street light.  "But you lost it over there," says a bystander, pointing down the street.  "Yes, but there's no light there," responds the searcher. 

I'm not sure I can improve on Christine Hurt's analysis of the situation:  this crisis is not about evil, or class warfare, or fraud.  It's about bubbles.  Bubbles are about systemic misapprehension of risk.  Bubbles are about the perception that something in the market always goes up, or at least, everybody else thinks it's going up, and if we are going to compete with them, we better do what they're doing.  When the bubble burst, and it's really hard to understand how it all happened, and worse, when we still don't understand the impact of the bursting, it is certainly a lot easier to resort to tried and true bromides and political stereotypes (the bright spot under the street lamp) than to accept the more likely truth:  we are all either addicts or enablers and co-dependents to the addicts.

Imagine a family.  Dad, Mom, and the kids.  Dad and Mom own a house.  They believe the value of the house is the one true immutable in the world - it will always go up.  Dad and Mom go out and borrow against the equity in their house to supplement the family's life style.  And what a binge it is!  Vacations to Hawaii.  Private schools.  Each kid gets a car.  But the family now has a lot more fixed debt, and it has to be paid back sometime.  The kids don't think about it, and Mom and Dad aren't worried; they know the value of the house will support it, and they seem to be alright making the payments.

But now there's a small glitch.  Dad loses his job.  Or the interest rate cranks up a notch.  Now Dad and Mom are having a hard time making the payments.  The drastic way out would be to sell the house, tap the equity and pay off the lifestyle loan, but it turns out the value of the house has gone down.  Uh oh.  Somehow the piper has to be paid.  Who's going to pay it?  Dad, Mom and the kids.  Dad and Mom say to the kids:  sorry but we have to move to a small apartment, sell the cars, take you out of private school, and put you in public school, because we just aren't worth what we used to be.  The kids say:  "how can that happen?  Life was good.  Mom and Dad, you were greedy scum (if not fraudulent creeps)."  Mom says to Dad:  "I told you something wasn't right!"  Dad says to Mom:  "you never should have bought those clothes."  Mom said to Dad:  "what made you think we could afford a golf club membership?"  And the kids blame both of them, even though their lives in the short-term were probably better as a result of the binge.

Now take my story and write it large.  We can see the analog of the kids' position in my following paraphrase of a bitter post over at the Wall Street Journal's website on the bail-out term sheet.  An angry taxpayer notes that you contributed to the binge if, in the last eight years, (1) you worked in a position that allowed you to influence or alter the way people purchase real estate; (2) you purchased a house without a down payment or an understanding of your debt obligation; (3) you purchased a home with an interest only, Alt-A, sub prime, piggyback or other type of nonstandard mortgage to shoehorn your way into a house you could never afford without the benefit of financial magic; (4) you participated in cash out refinancing to pay for your kids education, improve your house, take a vacation or anything else that will not bring you a probable return for your spending borrowed money; (5) you worked within the real estate industry or any other business being financed by unduly cheap money. 

This rant (not unwarranted, by the way) gets at the addicts but I'm not sure it identifies the enablers.  In my analogy, the kids got to share, albeit indirectly, of the pleasures of the binge.  Put another way, the creation of wealth in the financial markets is no longer "us" and "them."  I don't have at my fingertips the amount of the NYSE and NASDAQ capitalization that is owned by institutions, but it's huge.  When I say institutions, I mean mutual funds (Fidelity, T. Rowe Price, Vanguard), insurance companies, union pension funds, state employee pension funds (like CalPERS), university endowments, private foundations, 401(k) plans, 403(b)(7) plans.  These institutions work for us, rich people and not so rich people, by making investment choices, which in turn are a matter of assessing risk.  If CalPERS took no risk with the pension funds held for all the California public employees, and bought nothing but T-bills, it would have a flock of exceedingly upset retirees.  The question is how much did CalPERS and the institutions like it (a) benefit from the bubble, and (b) enable the bubble by buying up the leveraged debt securities or the equity securities of the companies investing in the leveraged debt?  Empiricists, do me a favor.  Please track how much of the stock of AIG, Fannie Mae, Freddie Mac, and Sallie Mae was held over the last seven years by pension funds, and in particular, union pension funds.**  (Note to file:  CalPERS was one of the big investors in Enron.  And full disclosure:  as I recall my investment advisor bought Enron for me at about $80, but, as I recall, had the good sense to sell at $22.)  This isn't to blame them:  it's to say maybe we have met the enemy and they are us. 

My point here is that a lot of people who are professionals in the quantification and monetization of risk got it wrong.  They managed to get it wrong all at the same time because there is a "herd" aspect to this:  if you don't show the short term returns others are getting, capital (for who owns the capital, see above, because it's all of us) will flee to other managers.  I suspect the bell curve of venality is about what it is for any other group in society - most of them were probably about as evil as Mom and Dad.  (This is the subject for another time:  are corporate boards any more venal than synagogue boards, or non-profit boards, or law faculties, or the Congress?  Put another way, what if your battles happen not to be for money, but instead the currency is power, or influence, or fame, or position, or re-election?  But I digress.)

So now we're having a big family council, trying to decide who bears the brunt of this seven-year long family binge.  Like the above-quoted ranter, the kids say "we benefited from this, but we didn't cause it, why should we have to pay for the excess?  Dad should have to quit the golf club, and Mom should have to get rid of her car."  One of the kids wants to cap Dad's allowance.  One of them has asked the FBI to look into whether there was fraud.  Mom and Dad say:  "look, kids, we're really sorry we messed up, but we are still the best thing you've got to get this right."

And here we are.

** UPDATE:  I did a little quick investigation of my own.  If you look at AIG's proxy statement, Fidelity's funds owned 5.7% of the company as of Feb. 14, 2008, making it the second largest shareholder after C.V. Starr, which is Hank Greenberg's firm.  Meaning that all of us who had 401(k) or 403(b)(7) or other retirement or investment accounts with Fidelity got the benefit, not so indirectly, of AIG's market value, spurred on in part by its participation in the credit markets.  Similarly, as of June 30, 2008, the California Public Employees Retirement System (one of the largest pension funds in the country, holding $54 billion in assets as of that date) held securities in the following companies valued at the time as shown:  JPMorganChase, $395 million; Bank of America, $355 million, AIG, $229 million; Goldman Sachs, $228 million; Morgan Stanley, $133 million; KB Homes, $6.7 million. 

You can say that "we the taxpayers" are bearing the brunt of the diminution in asset value, but to some extent (and I think to a large extent), we are merely shifting the burden from a left pocket to a right pocket.  That tells us two things:  (a) it's still very unclear whether a bail-out helps or hurts in the end, but the markets seem to think it helps, and (b) It's a fair request that money not stick too much to those involved (transaction costs and agency costs), but, at the end of the day, all of us want competent people at the helm of all of those companies whose returns fund our retirements.

September 26, 2008 in Hot Topics | Permalink | Comments (3) | TrackBack (0)

Post-Discipline Contentions Rejected

The Supreme Court of Florida rejected a collateral attack on a previously imposed disciplinary sanction imposed against Montgomery Blair Sibley.  He had contended`that the order of discipline was improperly entered because the judges had failed to take the prescribed loyalty oath, a contention that the court characterized as "inaccurate and legally insufficient." Rather, the oaths had been taken at a "well attended ceremony." (Mike Frisch)

September 26, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Suspension Insufficient

The web page of the Ohio Supreme Court notes a decision issued yesterday:

Cincinnati attorney Donald  M. Powers Jr. has been disbarred for his participation in a criminal real estate “flipping” scheme in which a title company that he partly owned defrauded various financial institutions, resulting in losses of approximately $3.5 million. Powers’ law license has been under an interim suspension since January 2006, after he entered guilty pleas to federal felony counts of making a material false statement in a loan application and filing a false income tax return.

 

The court adopted findings by the Board of Commissioners on Grievance & Discipline that Powers, his wife and several other persons purchased low-value homes in the greater Cincinnati area, obtained inflated appraisals of the value of those properties, recruited buyers for those properties who might not be able to afford them, created false documents including W-2 forms, pay stubs, bank statements and employment verifications inflating the stated income of the buyers, and submitted false loan “packages” to mortgage lenders in order to obtain a loan for much more than the actual value of the property.   

 

In rejecting the disciplinary board’s recommendation that Powers be indefinitely suspended from practice rather than permanently disbarred, the Court noted that in his guilty pleas to criminal charges Powers admitted that he personally owned five of the houses that were “flipped” at enormous profit by means of the criminal scheme, and that he personally signed numerous federal housing agency forms falsely attesting that the buyers had provided a significant cash down-payment when he knew they had not done so.

The court's decision is linked here. Disbarment was required in light of the magnitude of the misconduct, involving theft-type behavior. The court rejected the assertion that the misconduct was due to the lawyer's "inattention" and that others`were more deeply involved in the criminal scheme.  (Mike Frisch)

 

September 26, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, September 25, 2008

Suit Filed Against Louisiana Bar For Its New Attorney Ad Restrictions

Story here reported in the Baton Rouge media about a constitutional challenge in federal court, filed by local attorneys, to Louisiana's recent restrictions on lawyer ads.  [Hat Tip to a student in my ethics class, Jason Kelley.]  The new rules start Dec. 1.  Says the Baton Rouge report:

Banned will be “background sounds” and any other feature of the ad that is “false, misleading or deceptive.” ... Also prohibited are ads that “compare one lawyer’s services to another lawyer’s services, unless the comparisons can be factually substantiated,” another rule states [, and ads] which include the portrayal of a judge or jury, the use of actors in place of real lawyers, and the “reenactment of any events or scenes or pictures that are not actual or authentic

See also this Times-Picayune story, suggested to me by another student, Keith Reynolds.

[Alan Childress]

September 25, 2008 in Law & Business | Permalink | Comments (1) | TrackBack (0)

Less Than Disbarment And Less Than Justified

An attorney practicing primarily in Umpire, Arkansas accepted a three-year consent suspension that was approved by the Arkansas Supreme Court. The attorney was also a certified public accountant and financial planner. A client that had (through other counsel) secured a settlement near $2 million from Ford Motor Company as a result of a farm accident sought the attorney's investment advice. The client gave a total of almost $600,000 to the lawyer to invest. The client died without seeking or obtaining an accounting. When his wife then sought an accounting, she was advised that "all of her money was gone." She accepted the lawyer's offer to repay her and received two promissory notes but has not gotten a cent back. The consent acknowledges a number of ethics violations including improper business transactions, failure to account and dishonesty.

Associate Justice Glaze dissents in favor of an order of disbarment: "I strongly disagree with the majority court that approved this. It is dangerous precedent!" I agree with that view and the exclamation point! (Mike Frisch)

September 25, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No Suspension

The Minnesota Supreme Court entered orders in two disciplinary matters today, imposing supervised probation in both cases. One attorney was charged with neglect of a single matter leading to a default and false statements to the bar's investigator. The bar stipulated that he "suffers from severe depression and complex post-traumatic stress disorder" and that he had "no specific intent to deceive the [bar] investigator." The court appointed a probation monitor to supervise his practice for a two-year period.

The second case involved an attorney who had neglected three separate matters. Discipline had been imposed against the attorney on five previous occasions for similar lapses. The court ordered a stayed 90 day suspension, public reprimand and two years of supervised probation. (Mike Frisch)

September 25, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Less Than Disbarment

The New York Appellate Division for the Third Judicial Department declined to impose disbarment in a matter arising out of the attorney's conviction for a misdemeanor offense of filing a false instrument. The attorney had filed a false adotion petitionthat claimed that a certian man was the father of the child that she (the attorney) wished to adopt knowing that he was not the father. She was sentenced to a 60 day  term of incarceration in the criminal case.

The court imposed a suspension of four years, finding mitigation notwithstanding its view that the misconduct "strikes at the core principles of the legal system." (Mike Frisch)

September 25, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 24, 2008

Michigan's New Admissions Policy

[posted by Bill Henderson, cross-posted at ELS Blog]

Over at Moneylaw, rankings guru Tom Bell (Chapman) breaks an important story:  The University of Michigan Law School has introduced the new Wolverine Scholars program, which is a special admissions program for UM undergraduates. It has two threshold requirements:  (1) your UGPA must be at least 3.80, and (2) you cannot have taken the LSAT. 

Studying the labor market for lawyers--including law school rankings, which is a important mechanism for mediating supply and demand--has made me sensitive to potential ulterior motives beyond the standard cant of "admitting the best students."   While I would love to see a world where the LSAT is assigned its rightful limited place in law school admissions, I cannot overcome the perception that Michigan is really just upping the U.S. News gamesmanship.  The lofty rhetoric of the Wolverine Scholar program cannot be squared with the unnecessarily rigid admissions criteria.  In my opinion, the only rational explanation is that Michigan seeks a rankings payoff.   Here, an elite law school sets a new low in our obsession of form over substances--once again, we legal educators are setting a poor example for our students. 

Readers can judge for themselves.  Here is how Michigan pitches the Wolverine Scholars program:

The Law School’s in-depth familiarity with Michigan undergrad curricula and faculty, coupled with significant historic data for assessing the potential performance of Michigan undergrads at the Law School, will allow us to perform an intensive review of the undergraduate curriculum of applicants, even beyond the typical close scrutiny we devote ... . For this select group of qualified applicants, therefore, we will omit our usual requirement that applicants submit an LSAT score.

With the exception of the intensified review of the undergraduate academic record and the omission of the LSAT, our admissions review and philosophy is the same for the Wolverine Scholars Program as it is generally. Thus, our evaluation criteria are holistic, and comprise the wide range of relevant considerations that can’t be reduced to any mechanical formula. We look for highly intelligent people who welcome challenging experiences, who have demonstrated leadership and community service, who have shown determination and discipline, who are eager to outdo themselves, and who are creative and resilient in dealing with adversity. We pay attention to evidence of academic progress. So, too, we pay attention to considerations – working many hours, coming from an educationally deprived background, having primary care responsibilities for family members, and so on – that may provide a context for the formal record of academic achievement. ... We look for individuals with intriguingly different backgrounds, experiences, goals, and perspectives. Academic majors, work experience, extracurricular activities, distinctive moral and political outlooks, socioeconomic background, time living or working abroad, and more inform our admissions decisions.

Wonderful stuff.   But it is impossible to take the above excerpt seriously when we focus on the unreal application cutoff:   

"Application Eligibility.  UM undergraduates who have at least completed their junior year ... with at least six full-time semesters of attendance on the UM-Ann Arbor campus and a UM cumulative grade point average of ≥ 3.80 are eligible to apply." [Emphasis in the original -- yes the original!]

So, a priori, the following student need not apply:  a UM chemistry or engineering major with a 3.75 GPA who comes from a blue collar family in the rural Michigan who put himself through college by running a business and volunteers in an organization for the disabled.   For this person, "holistic review" requires an LSAT score.   He or she may not be one of the "highly intelligent people" UM is looking for.  But the privileged frat boy who majored in political science and earned a 3.81 gets a free pass.  It is hard to imagine a more misguided "mechanical formula."  More after the jump. ...

Continue reading

September 24, 2008 in Ethics | Permalink | Comments (4) | TrackBack (0)

Watch Your Email SEND List: Another Cautionary Tale

Posted by Alan Childress
This blog and Legal Ethics Forum have posted several examples of lawyer disasters stemming from sending emails to the wrong person or leaving metadata embedded.  Same can happen in politics.  The Colorado Independent today reports that the Colorado McCain campaign mistakenly sent their internal talking points to reporters (regarding the suspension of campaigning).  That story by itself is not that eventful, though a nice reminder.  The really great part is the honest reaction of the campaign email's author when asked for a comment: 

Told by a reporter that the e-mail had been sent to him and others in the media, Kise said, “F*ck, tell me I didn’t send it to the wrong list.”

September 24, 2008 in Blogging | Permalink | Comments (0) | TrackBack (0)

Breaking News: Sen. McCain Asks Obama To Postpone Debate

Story here and elsewhere. 

Just hoping networks do not fill time with reruns of Everyone Loves Raymond.

[Alan Childress]

UPDATE: Easy solution to this dilemma and also solves my Raymond problem: Obama should agree to swap the VP debate with this one.  He and McCain will debate Oct. 2.  Biden and Palin can meet in Mississippi this Friday as scheduled, while the presidential candidates go to DC as McCain suggests.

September 24, 2008 in Blogging | Permalink | Comments (0) | TrackBack (0)