Wednesday, December 31, 2008
The California Bar Journal reports that 23 persons who have sat for the California bar examination have filed a motion in opposition to the lawsuit of Professor Richard Sander and others seeking access to data on exam takers. The web page entry states that:
The proposed intervenors, who are mostly Latino and African American, argue that they provided such information only because they were promised the information would be used for internal purposes only and not released to anyone outside the State Bar.
They said that while they seek the same judicial result as the State Bar, they also “have an independent, substantial and direct interest in the outcome of this case and in making sure that they can be heard.”
If Sander and the others win their suit, the 23 bar takers’ “guaranteed right to privacy under the California Constitution and FERPA [The Family Educational Rights and Privacy Act] would be violated by the disclosure of their personal, private information without their consent, and Respondents [the State Bar] would be required to breach written contractual promises of confidentiality that they made to Proposed Intervenors to obtain the information.
The State Bar, the motion, said, “is legally and morally bound to keep it confidential.”
A board recommendation for a one year suspension of an attorney was accepted by the Wyoming Supreme Court. The attorney had been on an interim suspension and had failed to appear in several matters.He also had been arrested in possession of marijuana.
After he had failed to respond to bar proceedings, an attorney was appointed to represent him who was unable to locate him and opined that he may suffer from psychological problems and had moved out of state. The board had held a hearing on November 14, 2008 and filed its report less than two weeks later. The court issued its own decision today effective January 2. (Mike Frisch)
The year of the West Virginia Supreme Court of Appeals has ended with a series (seven, by my count) of dissents and one reluctant concurrence from Justice Starcher. In a case involving a hospital's subrogation claim:
I dissent because, in my 12 years on the appellate bench, I have too often seen arcane procedural decisions like this one flow forth from this Court. These decisions brilliantly and eloquently describe the trees, while failing to recognize the surrounding forest.
These kinds of decisions may be technically correct, but they wholly miss the public policy waves that will ripple from the Court's decision...
Let me put it another way: the majority's decision is one more brick in a wall designed to keep injured plaintiffs from seeking justice in the court system. The majority opinion allows company health insurers to turn a simple, state-law tort suit over a car wreck into a federal preemption case revolving around the unfathomable morass called ERISA. It is my belief that this Court should always work to improve access to the Courts and to simplify the administration of justice. Justice should not be determined by the size of one's checkbook, and whether one can hire the most lawyers to create or navigate an administrative maze. But that is exactly what the majority opinion encourages.
The use of the word “preemption” in today's courtroom is an obscenity _ and I reach that view of today's world after 32 years on the trial and appellate bench. Parties who seek to preempt the effect of state law through the application of federal law are oftentimes not looking for justice or fairness _ they are looking to avoid responsibility. I cannot accept that Congress intended for most federal laws, including ERISA, to be vessels of absolution for wrongdoers. State laws designed to stimulate responsible behavior by dependable citizens, state laws designed to punish and correct transgressions, and state laws designed to hold citizens accountable for their actions, are not supposed to be wholly suppressed merely by a litigant muttering the word “ERISA.” But the majority's opinion is one step toward making such wholesale preemption of state law a reality.
The Ohio Supreme Court has announced the adoption of a revised Code of Judicial Conduct, effective March 1, 2009. The court's web page highlights some of the new provisions:
- A rule that bars a judge or judicial candidate from making any pledge, promise or commitment inconsistent with the impartial performance of judicial duties. The former code precluded pledges, promises, or commitments and also statements that appeared to commit the judge or judicial candidate with respect to matters coming before the court.
- A rule that allows judges to reference their political party affiliation in campaign advertising in primary and general elections.
- Rules to allow a judge to make reasonable accommodations for self-represented litigants without violating the standards of impartiality and fairness.
- A rule that permits judges to encourage and facilitate pro bono service by Ohio lawyers.
- New provisions that provide guidance to judges who preside over “specialized dockets” such as drug courts or mental health courts.
- A rule that outlines a judge’s responsibility to report others’ disability/impairment or professional misconduct and a requirement to cooperate with disciplinary authorities.
- A rule that adds two additional standards that must be met to engage in an extrajudicial activity and restricts to incidental the use of court property or personnel in relation to the activity.
The announcement links to the new Code. (Mike Frisch)
Tuesday, December 30, 2008
An attorney who was convicted of misdemeanor attempted criminal sex act in the third degree as a result of his participation in sexually explicit chat room conversations with a person that he believed was a 13 year old girl was suspended for at least three years by the New York Appellate Division for the First Judicial Department. The factors that the court found justified a sanction other than disbarment:
Upon our review of these precedents, and our consideration of the nature and severity of respondent's offense, the aggravating and mitigating circumstances, and the impact of such offense on the bar and public, we conclude that the Hearing Panel's recommendation of a suspension of three years, or until the conclusion of respondent's probationary period, whichever is longer, is appropriate. As noted, misdemeanor convictions involving sexual solicitation of minors that do not involve sexual contact generally result in a suspension, not disbarment. Further, even if we agreed with the dissent that the offense, by itself, would ordinarily require disbarment, the substantial and credible mitigation evidence offered by respondent in this case requires us to consider a lesser sanction. From the beginning, respondent has admitted responsibility for his actions and has taken "uncommon" efforts to rehabilitate himself. After his arrest, he voluntarily entered sex offender treatment and all evidence in the record supports the therapist's opinions that such therapy appears to be working and that the likelihood of respondent repeating the misconduct was "low." Further, respondent cooperated with the criminal investigation and with Committee staff in their investigations, and he has no prior disciplinary record.
As the majority notes, a dissent would impose disbarment and sets out the circumstances in greater detail:
It is uncontested that in July 2004, while using his law office computer, respondent, then thirty-years old and a patent lawyer, logged onto an internet instant-messaging service and entered a chat room specifically targeting "older men and younger women." He commenced an online conversation with a female who claimed she was thirteen and who purportedly lived with her mother on Long Island but who was, in fact, a police officer. The chat room was "sexually oriented" and there was "significant sexual content" in the six separate conversations that followed over a period of three months. On October 16, 2004, after three months of these sexually explicit conversations, respondent, in further online conversations, arranged to meet the girl the next day at the Ronkonkoma train station in Suffolk County. They exchanged photos over the internet to ensure that they could identify each other so as to consummate their pre-arranged sexual liaison.
On October 17, 2004, respondent traveled on the Long Island Railroad from Manhattan to Ronkonkoma, admittedly "to engage in an oral sexual act" with a female whom he believed to be a thirteen-year-old girl. Upon his arrival he was arrested. At that point, he learned for the first time that the thirteen-year-old girl with whom he had anticipated having sex was actually a Suffolk County police detective.
The dissenting justice decries the random choice of sanction with the following footnote:
This seemingly random assignment of sanction recalls Justice Scalia's dissent in Dickerson v. United States (530 U.S. 428, 455, 120 S.Ct. 2326, 2342, 147 L.Ed.2d 405, 427 ): "The issue, however, is not whether court rules are mutable'; they assuredly are. It is not whether, in the light of various circumstances,' they can be modified'; they assuredly can. The issue is whether, as mutated and modified, they must make sense. The requirement that they do so is the only thing that prevents this Court from being some sort of nine-headed Caesar, giving thumbs-up or thumbs-down to whatever outcome, case by case, suits or offends its collective fancy." The instant case demonstrates the danger of this Court becoming, to paraphrase Justice Scalia, a five-headed Caesar.
Effective January 1, an amendment to the bar admission rules in Maine will no longer require an applicant to have graduated from an accredited college. The explanatory comment notes that the continued requirement that the applicant have graduated from an ABA accredited law school satisfies any concern about the quality of his or her educational background. (Mike Frisch)
An attorney who had neglected two criminal appeals before the United States Court of Appeals for the Sixth Circuit was suspended for one year with six months stayed on good behavior by the Ohio Supreme Court. The decision is summarized on the court's web page:
The Supreme Court of Ohio has suspended the law license of attorney Daniel S. Dice for one year, with six months of that term stayed on conditions. Dice, who currently resides in New York City, has been registered with the Court as inactive since July 2006.
The Court adopted findings by the Board of Commissioners on Grievances & Discipline that Dice violated multiple attorney discipline rules by neglecting the cases of two criminal defendants he was appointed to represent in cases before the U.S. Sixth Circuit Court of Appeals. In one case involving a prisoner incarcerated for a felony offense, Dice delayed filing an appellate brief for seven months and then caused multiple additional delays in the case that ultimately required the court to appoint a replacement attorney. In the second case, Dice failed to appear for the scheduled oral argument of his client’s case before the Sixth Circuit.
The Court agreed with the disciplinary board’s findings that Dice’s conduct violated the Disciplinary Rules that prohibit neglect of an entrusted legal matter, intentionally causing damage to a client in the course of a professional relationship and engaging in conduct prejudicial to the administration of justice. In addition, Dice was found to have violated the state bar governance rule that requires lawyers to cooperate in the investigation of misconduct.
The Maryland Court of Appeals denied bar admission to an applicant who failed to promptly update his application with information concerning an arrest for DUI and related offenses that had occurred after he had filed his initial application but prior to being sworn in. He was sentenced to a nine day term of imprisonment. Shortly after his release, the applicant met with a member the character committee and did not mention the incident. After he was notified that he had passed the bar, he submitted documents that reflected the conviction.
The court found that he had failed to make timely disclosure of the arrest and conviction and that his "purported intent to ultimately reveal" the information was irrelevant.
It is highly unlikely that the conviction would have prevented (although it may well have delayed) admission. The lesson is one that we have regularly emphasized on this blog: when in doubt (or not), disclose, disclose, disclose. The additional lesson here is not to wait. (Mike Frisch)
Monday, December 29, 2008
Posted by Jeff Lipshaw
Over at Volokh Conspiracy, they are having a grand debate on whether Happy Holidays should or should not replace Merry Christmas. One of the reasons I like Christmas going by is that we can all agree on Happy New Year!
From the Lipshaws, Happy New Year! Thanks for your readership in 2008, and all the best in 2009 (it's gotta be a lot better than this past year)!
Posted by Jeff Lipshaw
If I make it through the Wall Street Journal and the New York Times before finishing my coffee and oatmeal, I read the Boston Globe (it's a slightly longer read than the Indianapolis Star, but not by much). There was an article today about a company developing wind and wave energy farms in the ocean off Nantucket and Block Island, and who should I find quoted but our friend, Carolyn Elefant, of MyShingle.com, demonstrating that solo practice need not be unsophisticated practice. Here's the relevant portion:
Carolyn Elefant, a lawyer based in Washington, D.C. who has advised ocean renewable energy developers for 15 years, says that in order to construct a wave farm, Grays Harbor Ocean Energy Company would also need to secure a lease from the Minerals Management Service. Elefant said the regulatory process remains unclear in a way that gives companies the ability to "game" the system by potentially staking a claim to certain waters through one federal process that may be quicker and then selling those rights to another developer.
The permit applications, "should send a warning signal to the industry, to the agencies, to the Hill that this is an issue that needs to be addressed," she said.
The Washington Supreme Court imposed a nine month suspension with a requirement that the attorney participate in practice management counseling and refund a $500 unearned fee to a client. The court found insufficient mitigation to warrant a lesser sanction:
...the hearing officer found Behrman's evidence of depression -- the
testimony of Behrman and two friends, along with a bill from Behrman's
acupuncturist, allegedly for treatment of depression -- to be not credible. CP at 164.
Therefore, Behrman failed to show his personal or emotional problems by either a
clear or a simple preponderance of the evidence.
...Behrman argues that the hearing officer erred by requiring expert
testimony of his depression and discounting the evidence of acupuncture treatment for
his depression. However, the hearing officer simply stated that Behrman had not
presented expert "or other credible" evidence, indicating that the evidence Behrman
had presented was not credible. Id. Given that Behrman presented no credible
evidence of his depression, the hearing officer's rejection of depression as a mitigating
factor was supported by the record.
The court found the imposition of the practice management copndition appropriate even where there was not evidence of mental or emotional problems. (Mike Frisch)
Professor Larry Dubin of University of Detroit Mercy Law School has an opinion piece in Detroit News.com on the recent Michigan Supreme Court decision overturning a Attorney Discipline Board order imposing discipline for failure to return an unearned fee. Dubin's analysis is spot on:
The Supreme Court's holding in this case makes new law that favors the rights of lawyers to keep money from clients even for services that they don't perform. The decision will create a financial disincentive for clients to exercise their right to fire lawyers or discontinue services because they can't recoup their money to hire a new lawyer.
This decision ushers in a new era that is very hostile to the interests of clients. Under this court ruling, the funds paid to a lawyer for future services will not be returned even when unearned as long as the lawyer slips in the term "nonrefundable" and "minimum fee" in the agreement.
This decision is likely to increase the number of grievances against lawyers and the cynicism that many members of the public will have toward lawyers. Consumers will feel cheated by lawyers being able to keep their money without performing the agreed-upon legal services.
Critics of lawyers sometimes state that a lawyer has a license to steal. The Attorney Discipline Board's ruling challenged that cynical notion by holding that a contract provision written by a lawyer cannot negate an attorney's ethical duties to a client. The Michigan Supreme Court decision unfortunately creates public cynicism toward lawyers.
I hope the Michigan Supreme Court will reconsider its decision in light of the adverse consequences consumers will experience.
Dubin is a former chairman of the Michigan Attorney Discipline Board. I use his wonderful "Legal Heroes" film in my last professional responsibility class every semester, as I find it to be a great way to inspire rising lawyers to see the possibility of using the law to further the public good after they have been learned Rules 1.1 to 8.5.
We had reported both the board and court's decisions. (Mike Frisch)
Friday, December 26, 2008
An attorney who had accepted a censure in Montana for misconduct in connection with a motion for pro hac vice admission to a Montana federal court was reciprocally disciplined by the New York appellate Division for the Second Judicial Department. The New York court rejected a variety of challenges to the imposition of the identical sanction:
The respondent's argument is that none of these charges would be worthy of the imposition of discipline in New York. In his view, his admitted violations were ministerial and technical and would not warrant punishment if charged in New York.
Based upon the evidence adduced, the defenses advanced by the respondent are without merit. The respondent was not deprived of due process in the Montana proceeding in which he was represented by able counsel and had ample opportunity to be heard and to present evidence in his own defense. He participated in the investigation and was fully apprised of the ramifications of his stipulation.
Nor was there such an infirmity of proof establishing the misconduct as to give rise to a clear conviction that this Court, consistent with its duties, could not accept the findings of the Montana court as final. The terms of the Tendered Conditional Admission and Affidavit of Consent are clear. Although he was not yet an admitted attorney in Montana, the respondent was an experienced New York attorney who could not persuasively argue that he was ignorant of the importance of that writing. Notwithstanding the respondent's categorization of his violations as ministerial and technical, he nevertheless made material misrepresentations to a court of law, even if by omission.
The attorney testified in the New York proceeding that he had accepted the Montana sanction by stipulation because his lawyer had advised him that he would "never...do better" if he contested the charges. (Mike Frisch)
In a case where the Administrator had charged an attorney with ethics violations for failure to disclose a material fact in representing a client in a real estate transaction, the Illinois Review Board agreed with a hearing board conclusion that the charges had not been proven and set out its standard of review of such a no-misconduct finding:
...in seeking to have the Review Board overturn the Hearing Board’s factual findings of no misconduct, the Administrator faces an extremely high two-pronged burden. First, the Administrator must convince the Review Board that, in its opinion, he proved the misconduct charged by clear and convincing evidence. Second, he must establish that, despite the Hearing Board’s determination that such a burden was not met, the opposite conclusion is clearly evident.
This two-fold difficult burden should be contrasted to that of a respondent who challenges Hearing Board findings of misconduct. A respondent has no burden to prove anything, let alone by a clear and convincing standard. A respondent who challenges factual findings on review must establish only that the Hearing Board’s factual findings are against the manifest weight of the evidence.
In this case, the Administrator’s arguments at best demonstrate that certain circumstances raise suspicion. However, suspicious circumstances are not sufficient to meet the Administrator’s burden of proof. Winthrop, 219 Ill. 2d at 550, 848 N.E.2d 961, 302 Ill. Dec. 397. That an opposite conclusion is possible, but not clearly evident, does not allow for a reversal of the Hearing Board’s factual findings. Winthrop, 219 Ill. 2d at 542-43, 848 N.E.2d 961, 302 Ill. Dec. 397.
Based on the facts presented in this case, the Hearing Board found that the Administrator did not prove, by clear and convincing evidence, that [the attorney]acted with an intent to deceive or that his conduct rose to the level of an ethical violation. That finding is not against the manifest weight of the evidence. As the Hearing Board noted, this decision should not be taken as approval of a failure to highlight significant changes in documents sent to opposing counsel. However, as this case demonstrates, every failure of counsel to highlight significant document changes does not involve the violation of a rule of professional conduct.
Thursday, December 25, 2008
In a case arising from a corporate receivership and dissolution action from which a law firm had withdrawn when it had been joined as a defendant, the Nevada Supreme Court held:
These consolidated matters arise from an action in which a law firm sought to recover attorney fees incurred for its representation of a corporation in a separate receivership and dissolution action. The district court awarded the requested fees; approved the law firm’s garnishment and directed the corporation’s receiver to pay the firm out of the receivership funds; and awarded the firm additional fees under the offer of judgment protocol. The corporation has appealed from the attorney fees judgment and post-judgment order, and the receiver has appealed from the court’s order on garnishment.
As a threshold matter, the firm challenges this court’s jurisdiction to consider the receiver’s appeal, asserting that the receiver was not a party below and that he was not aggrieved by the district court’s order on garnishment. Having considered the parties’ jurisdictional arguments, we conclude that we have jurisdiction over the receiver’s appeal because the court’s order constituted a final judgment in the garnishment proceeding, and since the order was rendered against the receiver, who was the garnishee defendant in that proceeding, he is an aggrieved party entitled to appeal.
As for the merits of the parties’ appeals, we address whether the failure to pursue a claim under the receivership claims process necessarily precludes the recovery of attorney fees outside of the receivership court. We also address whether fees are appropriate when a firm represents both the corporation and its majority shareholder and president, as well as whether the firm can recover fees for representing itself in the separate attorney fees action.
We conclude that claims for attorney fees incurred in a receivership and dissolution action can be liquidated in a separate action. The court in that separate action, however, has no jurisdiction to levy on receivership funds without the receivership court’s permission. Accordingly, as we conclude that no conflict of interest barred recovery here, we affirm the district court’s judgment liquidating the firm’s attorney fees. We reverse, however, the district court’s orders concerning garnishment and disbursement of receivership funds. Finally, we conclude that a law firm cannot recover fees for representing itself, and we therefore reverse the post-judgment order awarding attorney fees.
Wednesday, December 24, 2008
In an interesting bar discipline case, the Nevada Supreme Court imposed a public reprimand on an attorney for assisting in the violation of unauthorized practice rules as a result of conduct by his employee who was admitted to practice only in Arizona but located in the attorney's Nevada office:
Our prior precedent and authority from other jurisdictions support the conclusion that what constitutes the practice of law must be determined on a case-by-case basis, bearing in mind the overarching principle that the practice of law is involved when the activity requires the exercise of judgment in applying general legal knowledge to a client’s specific problem. When the person engaged in the activity is a lawyer licensed in another state, we must also consider whether that activity may be permissible under Nevada’s limited exceptions for multijurisdictional practice, when the activity is limited and incidental to the lawyer’s representation of clients in his home state.
Here, consideration of the key principle—exercise of legal judgment on a client’s behalf, together with ample authority from other jurisdictions faced with similar facts, demonstrates that Lerner’s employee without doubt engaged in the practice of law. Also, the employee worked in Lerner’s Las Vegas office for Nevada clients, so he was not engaged in limited, incidental, multijurisdictional practice related to his representation of clients in Arizona, where he is licensed. Consequently, the employee’s practice of law was unauthorized. The employee’s activities were further performed as part of his regular duties, in conformity with the policies and practices of Lerner’s firm, and thus, Lerner assisted in the unauthorized practice of law. We therefore conclude that clear and convincing evidence supports the violation of RPC 5.5. We further agree with the hearing panel’s recommendation of a public reprimand as the appropriate discipline.
The employee met with potential clients, determined whether or not the firm would take the case , negotiated claims and was the client's sole contact at the firm. The court notes that the attorney sanctioned here had been the subject of three prior non-public reprimands for the identical conduct. (Mike Frisch)
An attorney who had been subject to a stayed five-year suspension in Pennsylvania for submitting 34 false claims for air travel to his law firm received an identical sanction from the New York Appellate Division for the Third Judicial Department. The court imposed reciprocal discipline, noting that the Pennsylvania disposition had been premised on a finding that the misconduct had been substantially caused by a psychiatric condition for which the attorney is receiving treatment. (Mike Frisch)
An attorney who had engaged in misconduct in a series of immigration matters was disbarred by the North Dakota Supreme Court. The attorney had charged a "nonrefundable" fee and failed to perform the services and had practiced while suspended for nonpayment of bar dues, as well as mishandling the immigration matters. He had also made false statements to a client and did not respond to the disciplinary charges. (Mike Frisch)
An attorney was disbarred by the District of Columbia Court of Appeals for serious dishonesty and related misconduct in his dealings with a business partner with whom he had a romantic relationship. The attorney was found to have drafted legal documents that listed only his name on joint ventures and made a series of false statements about the situation, including testimony under oath in an arbitration and the disciplinary hearing. After losing the arbitration, he filed a meritless appeal that caused the California Court of Appeal "to verbally chastise him for 'blatant misrepresentation' of one of the court's rulings..." ("If a reputation for honesty is the coin of the judicial realm, [the attorney] has squandered his riches on such positions most unwisely").
His criminal conduct (proven without a conviction) was found to amount to theft. He also engaged in "unconscionable actions in the courts, especially the California courts." Disbarment was appropriate even though he had no prior disciplinary history, as he had engaged in "persistent, protracted,and extremely serious and flagrant acts of dishonesty." Reinstatement is conditioned on full restitution to the Clients' Security Fund with interest and satisfaction of all judgments "against him and in favor of [the partner] or related business entities."
According to the court's opinion, the attorney was admitted in the District of Columbia in 1995 and "[e]ventually,...moved to Virginia and accepted a post as a professor of law at Regent University." (Mike Frisch)
Tuesday, December 23, 2008
Odd bumping noise heard on Denver plane's tape
...That would have been the kid behind me kicking my seat back, and bringing my seat back forward.
One of my brothers is a pilot for American and was visiting my school one day, having lunch with lots of us law profs. An occupational hazard for him is that everyone immediately decides to tell their personal airplane inconvenience or near-miss stories. (Just like how we ethics profs always seem to 'invite' stories of outrageous lawyer conduct, or even such urban myths as the guy who got trapped robbing a house, was forced to eat dog food, and sued!) Each law prof duly told my brother their tale of airplane horror, and he listened attentively, till one prof ended the conversation by apologizing for subjecting him to all the scare stories about flying. My brother just replied, "That's OK. I'm afraid of lawyers."
One of his best airport inconvenience stories is the time that TSA confiscated his nail clippers while he was obviously on the way to a fly a plane full of passengers. Like he could not bring the plane down if he wanted to, even without those clippers. [Alan Childress]