Friday, January 4, 2008
A post on the web page of the California State Bar reports that a proposal is being considered to modify the diversion program for attorneys:
"Attempting to tighten rules governing its discipline diversion program for attorneys with addiction or mental health problems, a State Bar committee has recommended a series of changes to restrict eligibility for the program. The proposals also would require that admissions of misconduct by diverted lawyers would be made public and decisions made by the State Bar Court concerning the program would be subject to review."
This is an issue worth monitoring, as the use of diversion raises important issues concerning how self-regulation works. (Mike Frisch)
A court-appointed criminal defense attorney filed his claim for compensation 54 days after the representation had concluded. There is a statute that provides that the claim must be filed within 45 days. The trial judge nonetheless approved payment. The Iowa public defender sought and obtained review of the payment order.
The Iowa Supreme Court held today that the court exceeded its authority in ordering compensation. The claim for payment is extinguished if not timely filed. (Mike Frisch)
Posted by Alan Childress
The ABA Journal online had this headline two days ago that seemed to come out of nowhere: "Why Law Profs Are Miserable." It quotes Paul Caron on TaxProf as applying the criteria of a more general book on
occupational happiness, to conclude that law profs' misery comes from anonymity, irrelevance, and immeasurement. (Or at least as support to explain another professor's view that law profs "are so edgy" [not in the street sense of edgy, like American Psycho or modern art].)
Except that I don't know of anecdotal or statistical evidence to support the claim that law profs are miserable. It seems like a very good job to me, and the numbers and qualifications of candidates for teaching jobs (almost all perfectly willing to take a huge pay cut) seem very high over the last few years. Plus I don't know of a lot of people who voluntarily leave the academy. So I don't find any support for the claim that law profs are miserable.
So the article would seem to be more about The Reasons Law Profs Would Be Miserable If They Are.
Except the reasons don't make sense. Law profs are not anonymous--the job is highly interactive and social, except for much of the writing component of it which is the most widely exposed and least anonymous (nationally) part of the job. Law profs are not irrelevant--we may not be as important as our egos think, or as influential broadly as some politicians, business leaders, and practicing attorneys, but in the circle we operate in, we seem to matter. All teachers, law or otherwise, have to take joy vicariously in the development and success of their students and ideas, so relevance may be often defined by the actions of our subjects rather than our direct actions. But that is fine with me, and with most profs I know. There is nothing like seeing the lightbulb go off over the head of a student in a socratic dialog, or seeing a former student get elected county commissioner or appointed judge.
Finally, success is not immeasurable, especially since teachers often define success in this vicarious way. But even in the more direct ways in which an individual may succeed, there are plenty of markers and objective-enough measures of success to deny the claim that the job is inherently amorphous and a-rewarding. We are measured all the time, and our stats are posted in libraries or on school websites.
I would worry that anyone who thinks otherwise seems to see tenure as the moment of retirement, but that hardly fits the reality of most law profs I know and even the tireless and productive Mr. Caron himself. Clearly he is finding something to define success to him other than receiving a lifetime contract. Indeed, most self-starters I know have turned that job security into a kick-start of increased productivity, relevance, and measurable achievement. The people who seek the job and get hired are almost always virulent self-starters.
So I do not know where this miserable idea comes from. But the headline certainly caught my attention and made me click on the story just to see what in the world they were talking about. I assumed it was some poll or study of job satisfaction, but even then wondered about the methodology because it sounded so unlike the law prof world I know, not just at my school but other schools I have observed or visited. To me it seemed like one of those scratch-head headlines I read a few weeks ago that claimed that Mother Theresa Was Not a Nice Person. Law profs are no saints, but they do not seem miserable to me either. Or even particularly edgy, in any sense of that word.
Thursday, January 3, 2008
As a follow up to yesterday's post on the Rule 1.15 record-keeping decision in the District of Columbia, here's the link to the report of the Board on Professional Responsibility in the Cloud case. The Board, like the court, cites no case for its remarkable holding that it is a defense to a charge of failure to maintain required records to have lost the records. There also seems to be no understanding of the importance of proper records to protect the interests of clients and third parties in their own funds. It is further worth noting that the Bar's investigation (with notice to the accused lawyer) began well before the "loss" of the records in question. I suppose the only way Bar Counsel can prove the violation now is to produce evidence that the attorney intentionally destroyed the required records by calling a witness to the bonfire. Such evidence will be difficult to come by.
Question: if a lawyer "ethically" loses required records, is the lawyer thereafter absolved from the duty to render an accounting to the person entitled to the entrusted funds?
I wonder what a criminal court would think of "I lost my records in an office move" as a defense to a criminal failure to maintain required records charge? How about the IRS in an audit? Not much, I suspect. (Mike Frisch)
Wednesday, January 2, 2008
The New York Appellate Division for the First Judicial Department reinstated an attorney disbarred in 1998 for misconduct over a 13 year period: "on approximately 15 to 20 occasions he paid bribes to middlemen who in turn paid corrupt insurance company adjusters in order to expedite their handling of his clients' personal injury matters under review by the insurance companies.His conduct...was indefensible in a member of the bar." The court majority found the conduct "aberrational" notwithstanding the number of instances and the extended period of time.
A dissent would not reinstate. Noting that the attorney pleaded guilty to a serious federal conspiracy charge and his "insistence that there were no victims as a result of his criminal conduct", the dissent also rejects the idea that the reinstated attorney's "assertion that he has no intention of recommencing the practice of law is a 'fact that militates in favor of... his reinstatement.' " (Mike Frisch)
It has been said that courts sometimes issue opinions between Christmas and New Years in the hope that no one will notice. The District of Columbia Court of Appeals decided a case last Thursday that is notable on two grounds. First, the court heard oral argument on March 7, 2003-- thus, the case was pending for 4 3/4 years after oral argument. The attorney, who was disbarred for misappropriation, was permitted to practice for the entire time. Second, the court found that Bar Counsel failed to prove that the attorney had violated the rule that requires an attorney to maintain records of the handling of client funds for five years after final distribution notwithstanding the fact that the attorney did not have the records. The reasoning: "the evidence supports the finding that [the attorney's] loss of the ledger was unintentional...During [his] office move, some boxes were mistakenly left behind, and when [he] went back to look for them, they could not be found...A finding of reckless misconduct based on the disappearence of the ledger is not warranted."
The pertinent rule provides that "Complete records...shall be kept by the lawyer and shall be preserved for a period of five years..." It does not say "unless the lawyer loses them." I have never seen a lost records case where the lawyer did not have an excuse, such as "I put the records in storage and was unable to pay the storage fee" or "I had a flood in my basement."
I was under the (apparently mistaken) impression that the duty to maintain required records was a strict liability offense. It remains so everywhere except in the District of Columbia. After making sure that the opinion was not issued on April 1, I was profoundly depressed as to the ethical standards for D.C. lawyers and profoundly grateful that I am no longer a disciplinary prosecutor. (Mike Frisch)
Tuesday, January 1, 2008
An attorney in Michigan was sanctioned for misconduct in that he "used a variety of demeaning terms to describe counsel who opposed him in 14 depositions between 1994 and 2002; and filed a pleading which falsely alleged that another attorney was mentally disturbed and posed a physical danger to others." The attorney was reprimanded by the Attorney Discipline Board and placed on probation for two years. (Mike Frisch)
In a lawsuit between former law partners, the firm's tax returns were placed in the public record. The remaining firm partners sought and obtained an order to have the returns treated as confidential. They then filed a separate suit based on the disclosure of the returns. The Indiana Court of Appeals held that the issues in the second suit were substantially similar to a contempt proceeding that is pending in the first action and affirmed the trial court's dismissal on that basis. The court chided the plaintiffs for including a lengthy but irrelevant history of the firm's breakup: "[a]n appellate brief is not a proper forum in which to air past grievances and dirty laundry." (Mike Frisch)
Monday, December 31, 2007
In a legal malpractice claim arising out of the client's representation by a public defender, the New Jersey Supreme Court held that the statute of limitations is not affected by the actual innocence of the plaintiff. Further, the statute is not tolled by a collateral attack on the conviction. Rather, the malpractice case must be brought along with the post-conviction claim and may be stayed by the trial court until" the underlying criminal proceedings reach its logical conclusion." A dissent suggests that this approach is unworkable and not in the interests of judicial econony. (Mike Frisch)
An attorney who had been suspended for six months by the United States Court of Appeals for the Ninth Circuit was the subject of reciprocal discipline proceedings in New York. A former associate in the lawyer's firm, who had also been the subject of charges of misconduct, testified that the lawyer had engaged in serious misconduct. These allegations were rejected, leading the Appellate Division for the Second Judicial Department to impose a public censure in lieu of suspension. In the Ninth Circuit proceeding, it was found that there was:
"no evidence to support the most serious allegations: that Oriakhi and Roman[the accused attorneys] interfered with and obstructed Obayemi [the associate] in prosecuting petitions for review, that they forged briefs or prepared misleading documents in cases belonging to Obayemi, and that they offered inducements, or threatened Obayemi to force his cooperation in taking the blame for the allegations in the order to show cause. The Commissioner did find, however, evidence of negligent misconduct by Oriakhi and Roman caused primarily by their reliance on an inadequate case-management and calendaring system at Roman & Singh. As a result of their failure to supervise Obayemi and neglecting to have an adequate system in place to monitor his cases, Oriakhi and Roman failed to enter timely appearances in the petitions for review to protect their clients' interests and prosecute their petitions diligently. The Commissioner found that their violations of court rules and orders and other misconduct burdened the court by requiring research by court staff and action by a panel of judges, inconvenienced opposing counsel, and had a potentially adverse effect on the legal proceedings, although there was no evidence of actual injury."
The case involved attorney Roman. The court declined to impose the identical discipline of a suspension, noting that Roman was the only attorney in the firm's New York office. (Mike Frisch)