March 8, 2008
Trouble Brewing for D. Colo.'s Chief Judge: Strip Clubs, Prostitution, and Parking in a Handicapped Spot
Posted by Alan Childress
Here is the TV news story of a federal court investigation out of Denver, re Chief Judge Edward Nottingham of the U.S. District Court for the District of Colorado, for hiring prostitutes. He was already controversial long before these recent allegations due to prior strip club bills (WSJ Law Blog blurb here) and his demeanor -- also receiving the reputation (says this 'insider's' website) of having "gavelitis," and was "known for scheduling hearings at 6:30 a.m. for lawyers who had irked him." He once jailed a litigant for four months for filing frivolous lawsuits, but out of jail she appealed them and won one. I would say this kind of conduct is a more serious judicial abuse than even charges of illegality in his private life, though that is serious too.
I personally believe anyone who expects anything at 6:30 a.m. is impeachable, though I know Jeff disagrees, as he is usually finishing an article by then. (Jeff lives on a schedule that only makes sense if his home were a dot somewhere in the Atlantic.) At any rate, it will not help Judge Nottingham going forward in the investigation that his name was so easily turned into the nickname "Naughty" by the prostitutes. Res ipsa loquitur, anyone?
By the way, some stories wrongly or ambiguously report the one being investigated as a Chief Judge in the Tenth Circuit. That has got to irk Hon. Robert Henry, Chief Judge of the Tenth Circuit (formerly a law prof and dean at Oklahoma City University), and his wife. Journalists really need to learn the basic structure of the federal courts.
One fair question to ask, I think, is why the most recent charges would be an impeachable offense to a federal judge but not to a U.S. Senator. Is there something different about law judging over law making that requires more diligence to the rule of law outside of court? Probably so, but it is worth asking. The news story quotes the judge as having told one famous white collar criminal defendant:
"If it is perceived that there is one law for the rich and one law for everyone else, the law ultimately falls into disrespect," said Judge Edward Nottingham to [Qwest CEO Joe] Nacchio. "The law does not care about your station in life."
March 7, 2008
Legal History Panel in D.C. Mar. 18, at GW Law's Institute for Constitutional Studies
Posted by Alan Childress
Here is a link to a public-is-welcome panel in Washington, D.C., of "author meets critics" on Charles Lane's new book The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction. Lane is a reporter at the Washington Post. Sad story out of reconstruction Louisiana that makes Jena seem like the rainbow coalition.
The panel will be held at 4:00 p.m. on Tues., March 18, 2008, at George Washington U. Law School (Faculty conference room); it is sponsored by its Institute for Constitutional Studies. Refreshments served!
More Moles for Metadata: This Time It Is Photos
Posted by Alan Childress
This blog and also Legal Ethics Forum (and here) have done several posts on the issue of metadata hidden in word processing files, and especially the ethical rules covering the sending or mining of metadata and similar embedded background data. Now there is a blog than notes that certain photo files contain metadata that are easily mined through a free program from our privacy friends at Microsoft. The blog is A.J. Levy's Out of the Box Lawyering and the post is called "Metadata in photos: There’s a lot of hidden information in digital photos." For example, he writes,"I recently learned that there is also some extremely valuable information hidden away in the digital version of digital photographs. And Microsoft has a free – that’s free – program that allows you to discover from the digital version such information as the date and time when the photo was taken."
For interesting and scary issues of privacy in the U.K. for Google search users--people are watching what you choose to search for--see this post today at Discourse.net.
MJP In Connecticut
Connecticut has adopted a rule governing Multi-Jurisdictional Practice that grants to non-Connecticut lawyers the same opportunity to "provide legal services on a temporary basis" under Rule 5.5 that the state where that lawyer is admitted provides to members of the Connecticut Bar. The announcement, which identifies the jurisdictions that are deemed to qualify, is linked here. (Mike Frisch)
Jail Budget Problems And The Right To Counsel
As a result of budget problems, the Maricopa County Sheriff announced a new set of limitations on privileged visitation hours (visits by attorneys, legal staff and probation officers) with jail inmates. The public defender challenged the limitations as an infringement on the right to counsel for inmates awaiting trial. The judge who heard the public defender's challenges ordered injunctive relief and directed the Sheriff to participate in mediation. On appeal, the Court of Appeal of Arizona, Division One, held that the judge had the authority to hold joint hearings in several matters to consider whether the policy violated the Sixth Amendment. However, the judge exceeded her authority by ordering injunctive, class action type relief without reference to individual circumstances. Any injunctive relief must be "narrowly tailored as as not to infringe on the Sheriff's authority." Finally, the judge did not have the authority to compel the Sheriff to participate in arbitration. (Mike Frisch)
The Minnesota Supreme Court reversed a lower court decision that had allowed a malpractice suit against Dorsey & Whitney on a theory that a non-client of the firm in a complex loan transaction was a third-party beneficiary of the firm's services. The court concluded that the rule that requires a lawyer-client relationship as a predicate to a malpractice claim has a limited extension of privity to third-party beneficiaries. The purported beneficiary must establish that the representation has as a "central purpose an effect on the third party and the effect is intended as a purpose of the transaction." Further, the lawyer must be aware of the intended benefit. The standard was not met here and the malpractice claims were dismissed. (Mike Frisch)
A Bibliography of Comparative Law, Including Middle Eastern and African Sources, by Patrick O'Donnell
Posted by Alan Childress
Anyone who reads blogs knows that Patrick O'Donnell, who also teaches philosophy at Santa Barbara City College, is a prolific and insightful commenter. Jeff's prior post on his bio is here. Patrick is allowing us to post a bibliography he complied of comparative law sources in English, with particular attention to studies of African, Islamic, and Indian law. These are the sources I lamented, in my entry on Lawyers, were harder to find (particularly as regards the organization and regulation of their professions). Thanks to Patrick for offering this academic gift to our blog, and we hope some readers will find it useful. He calls it "Comparative Law: A Basic Bibliography of Books in English." It is in Word and linked here: Download comparative_law.doc
An attorney who had been suspended for at least six months was accused of and admitted additional misconduct including misappropriation. The attorney and disciplinary counsel stipulated to a five year indefinite suspension rather than disbarment. The stipulation was filed with the Minnesota Supreme Court, which raised the question whether the conduct mandated disbarment. The Director of the Office of Lawyers Professional Responsibility (the title for disciplinary counsel in Minnesota) responded that indefinite suspension was appropriate due to (1) "litigation concerns involving problems of proof" (2) partial restitution and (3) the attorney's "history of depression and anxiety." The court thereafter accepted the stipulation and ordered a five-year indefinite suspension, effective on entry of the court's order. (Mike Frisch)
No Excess Fee
An attorney who entered into a contract with the public defender to handle a post-conviction matter sought a fee in excess of the agreed-upon amount of $1,500. The public defender appealed the order granting the excess fee. The Iowa Supreme Court reversed, concluding that the contractual agreement limited the fee. The lower court did not have the authority to order the public defender to pay more than the amount set forth in the contract. (Mike Frisch)
Reinstatement Denied Where Restitution Not Made
The Nebraska Supreme Court denied an application for reinstatement of a disbarred attorney. The attorney had been suspended for a false representation and then disbarred in 1997 for an income-tax conviction. Counsel for Discipline had opposed reinstatement notwithstanding a favorable referee's finding on present good moral character. The court agreed with Counsel for Discipline, concluding that the underlying conviction (which involved failure to pay taxes over a ten-year period)and his failure to make restitution militated against restoration to practice. (Mike Frisch)
Malpractice Claim Dismissed
The New York Appellate Division for the First Judicial Department held that a claim of legal malpractice was properly dismissed when the plaintiff failed to submit an expert affidavit to counter the affidavit filed on behalf of the defendant law firm. The court concluded that the "corporate plaintiff's dire financial situation was brought on by factors independent of defendant's professional representation" in a bankruptcy matter.
The court further held:
"These deficiencies were not cured by the affidavit of plaintiffs' principal, which failed to establish that but for defendant's alleged malpractice, the corporate plaintiffs would have successfully reorganized in Chapter 11 proceedings. Even if this Court were to consider plaintiff's "failure to advise" claim, an attorney's selection of one among several reasonable courses of action does not constitute malpractice. (citations omitted)." (Mike Frisch)
March 6, 2008
The Nevada Supreme Court held that an attorney had overcome the presumption of undue influence when his lawyer partner drafted a trust instrument that named him as a beneficiary. The court also held that, even if the conduct violated the Nevada Rules of Professional Conduct, the violation would not be the basis for a private cause of action.
"[T]he district court properly found that Dabney [the attorney] had rebutted the presumption of undue influence with clear and convincing evidence. The evidence contained within the record establishes that Woloson [the law partner] prepared Jane’s living trust in accordance to her instructions and desires and that Jane’s wishes were not a product of Dabney's undue influence. Accordingly, we conclude that the evidence supports the district court’s finding of no undue influence."
As to civil liability for violation of ethics rules:
"Even though SCR 158 and 160 apparently were violated when Woloson prepared Jane’s living trust benefiting Dabney, these per se violations did not afford William a private right of action to set aside Jane’s living trust. In Mainor, we held that an attorney’s violation of the professional conduct rules does not create a private right of action for civil damages, but that a violation is relevant to the standard of care owed by an attorney. Accordingly, we conclude that the district court did not abuse its discretion in refusing to set aside Jane’s living trust despite the apparent violations of SCR 158 and 160. In reaching this decision, we reiterate that any violation of the Nevada Rules of Professional Conduct does not create a private right of action." (Mike Frisch)
Childress on Overview of Lawyers and the Legal Profession, in the U.S. and Comparatively
Posted by Steven Alan Childress
I have recently posted to SSRN this 5000-word summary on the legal profession. It appeared as the entry "Lawyers," in volume 2 of David S. Clark, ed., Encyclopedia of Law and Society: American and Global Perspectives, p. 930 (Sage 2007). The encyclopedia's information is linked here and it's shown right. The essay's abstract is:
This entry summarizes the definition, roles, and organization of lawyers and the legal profession, from an American and comparative perspective. Discussion includes legal education and entry into the profession, identification and counting of members, regulation of lawyers, scholarly views on the profession, and sociological issues involving women and minorities. Geographic examples include the U.S. and United Kingdom, as well as such civil law jurisdictions as Japan, France, and Germany. Given that there is no shared concept of the legal profession, cross-cultural comparisons are difficult and often erroneous, but often make political fodder. Current and classic writings on the legal profession are considered.
Hold On To That Statute Book
There is an interesting decision by the Montana Supreme Court in litigation brought by the state public defender to compel a judge to appoint the public defender's office as counsel in a criminal case. The defendant had initially twice declined to seek appointed counsel. Thereafter, a document "whimsical in nature" and signed Butter True (apparently the defendant's nickname) was submitted to the court asking for appointed counsel. The court declined to appoint counsel without evidence of indigency from the defendant, leading to an acrimonious exchange between a public defender and the judge (see below). The defendant was homeless and unavailable to provide the information. The public defender also had declined to provide the information, citing confidentiality concerns.
The court here declined to order the trial court to appoint the public defender and chided the behavior before the trial court: "In the future, we expect [the public defender's office] to be more resourceful in promptly resolving conflicts concerning representation and working with appointing courts in a respectful manner. Under no circumstances is it necessary or appropriate to toss a statute book over the bench toward a judge."
There seems to be a problem with the link to the case. It is Office of the State Public Defender v. Whitefish City Court, decided yesterday. (Mike Frisch)
Qualcomm Sanctions Order Vacated
Courtesy of Legal Ethics Forum comes breaking news that the District Court has vacated the sanctions order in the Qualcomm case because the "introduction of accusatory adversity between Qualcomm and its retained counsel regarding the issue of assessing responsibility for the failure of discovery changes the factual basis which supported the court's earlier order denying the self-defense exception to Qualcomm's attorney client privilege." The "attorneys have a due process right to defend themselves...where their alleged conduct regarding discovery is in conflict with that alleged by Qualcomm concerning performance of discovery obligations." Now it will really get interesting as the formerly sanctioned and bar-referred attorneys can fully respond to the discovery misconduct issues. Of course, the bar will have no choice but to await the outcome of the remand, but will greatly benefit from the defenses/explanations of the six attorneys who were referred for a bar investigation. (Mike Frisch)
Not a legal profession case, but worthy of note, is a decision issued today by the Maryland Court of Special Appeals. The court held that, when a police officer said "What's up, Maurice?" to a person under arrest, such a casual greeting did not amount to custodial interrogation. The resulting incriminating statement was admissible. (Mike Frisch)
An Iowa county attorney who was defeated in her bid for reelection was reprimanded for removing office files in pending and closed criminal cases and making misrepresentations to an employee of the newly-elected county attorney. The reprimanded former prosecutor also removed the Microsoft Word and Word Perfect programs from the office's computers. This link takes you to the web page where the reprimand may be accessed. The case is Iowa Supreme Court Attorney Disciplinary Board v. Clark, No. 07-2023, issued February 26, 2008. (Mike Frisch)
In a 7-0 decision, the Ohio Supreme Court held that a judge who acted in excess of his jurisdiction in entering an order in an eviction matter was immune from civil liability. The court's summary, which links to the decision, is here. The summary states:
“Without question, Judge Abood possessed personal and subject-matter jurisdiction of Borkowski’s eviction proceedings when the complaint was filed. … It is also clear that the trial court’s jurisdiction of the eviction proceedings revived upon remand by the federal court,” wrote Justice Cupp. “Nonetheless, Judge Abood temporarily lost jurisdiction over Borkowski’s proceeding in the interval between the filing of the notice of removal and the remand by the federal court. Thus, Judge Abood’s continuation of the eviction proceeding during that period took place in the ‘absence of jurisdiction as to a part of the proceedings.’ As a result, we cannot say that Judge Abood acted in absence of all jurisdiction with respect to this matter. Rather, we conclude that Judge Abood acted only in excess of jurisdiction.”
Based on that analysis, Justice Cupp wrote: “Although Judge Abood’s conduct was in error, it was not such an error that will abrogate Judge Abood’s immunity from civil liability. … The trial court judgment resulting from Judge Abood’s decision to hold the eviction hearing subsequent to the filing of the removal notice, and before the federal court’s remand, was determined on appeal to be reversible error. However, Judge Abood had an obligation to make a preliminary determination whether he had jurisdiction to hold the hearing in the eviction proceeding. Even though his decision was erroneous, he acted in his official judicial capacity and his immunity remained intact. Based on the foregoing, the judgment of the court of appeals is hereby reversed.” (Mike Frisch)
In-House Counsel Rule
The Massachusetts Supreme Judicial Court has adopted a new provision, effective June 1, that allows for in-house counsel to represent a single organizational client in Massachusetts without admission to the Massachusetts bar. Attorneys who wish to practice pursuant to the rule must be in good standing in a jurisdiction and file an annual registration statement. (Mike Frisch)
Mandatory Malpractice Insurance- Not Yet
The web page of the Virginia State Bar reports that:
"The Virginia State Bar Council voted 44 to 7 during its March 1 meeting in Richmond to delay publication of a proposal that would require all Virginia lawyers to carry legal malpractice insurance. The council decided that it should have an opportunity to debate the proposal before it is circulated for public comment." (Mike Frisch)