March 5, 2008
A contract contained a provision that "[a]ll costs and expenses of any suit or proceeding shall be assessed against the defaulting party" was not broad enough to encompass recovery of attorney fees, according to a decision of the Court of Appeals of Tennessee. A dissent would find that the language would permit such fees to be recovered (the majority's holding was "too strict a construction of the contract exception to the American Rule"). (Mike Frisch)
Judge Not Thy Sister-In-Law
The New York State Commission on Judicial Conduct censured a town court justice who failed to make timely deposits of court funds, failed to report and remit funds in a timely manner and failed to keep a complete and accurate cashbook. As to safekeeping of the funds:
"In all cases, respondent stored the undeposited funds in her locked briefcase, which she kept in her courtroom, under her bench. The courtroom is routinely locked when not in use but does on occasion serve as a community center used by a number of groups at times when neither respondent nor court staff were present. Respondent understands the need to safeguard undeposited court funds in a more secure manner and affirms that she now does so by locking them in her briefcase, which she keeps with her until the following day, when she deposits the funds in the bank."
Finally, the justice adjudicated a seat belt violation case in which the accused was her sister-in-law. The defendant's explanation: she had taken the seat belt off to retrieve a spilled coffee cup. The justice agreed that recusal was appropriate but "genuinely considered the matter to be of such minor import that she did not wish to transfer the ticket to another court and burden another judge with it." The justice found the sister-in-law guilty and ordered only the mandatory State surcharge without a fine. This apparently was consistent with the justice's practice in such cases. (Mike Frisch)
Pay The Dues
There seems to have been a recent upsurge in bar discipline cases brought against attorneys who have not paid their annual bar dues or have otherwise failed to maintain their good standing as an active bar member. The Illinois ARDC recently brought charges alleging that an attorney had engaged in three instances of unauthorized practice after such a suspension. The charges state that the dues were eventually paid and the attorney restored to active membership in the Illinois Bar. (Mike Frisch)
An assistant prosecuting attorney for Wayne County Michigan was reprimanded by consent for the following described misconduct: "he failed to follow department guidelines for dismissing a felony firearm charge in one matter; and failed to follow his supervisor's preauthorizations for sentencing in two other matters." The consent order acknowledges a violation of Michigan Rule of Professional Conduct 8.4(c). (Mike Frisch)
Charges Of Unauthorized Practice
The Illinois ARDC has filed charges of ethical misconduct against an Illinois lawyer who allegedly engaged in unauthorized practice in Michigan. The complaint alleges that the attorney was retained to pursue a medical malpractice case on behalf of a Michigan couple. He filed a notice of intent to bring suit that extended the statute of limitations until June 26, 2006. On that date, he filed suit without associating with Michigan counsel or obtaining court permission. The complaint reflected that the clients lived in Indiana and were proceeding pro se, which the ARDC alleges were knowing misrepresentations. It is further alleged that the lawyer failed to comply with court requirements, leading to dismissal with prejudice. Finally, he is alleged to have made false representations to the wife after the husband had died. (Mike Frisch)
Conventions the Way They Used to Be
Posted by Jeff Lipshaw
Somebody recently likened the Clinton campaign's ability to cling to life to that of Rasputin, the famous and resilient mad monk of the last days of the Romanovs. I woke up yesterday morning, looked at the news about the tracking polls, and said to Alene: "It's not going to end tonight."
I will date myself here (if I haven't already), but my earliest memories of politics are news stories of the Kennedy-Nixon campaign, which was going on when I was in the first grade. (I also remember what most puzzled my six-year-old brain: I didn't understand what the name "Jack" had to do with "John" and what the name "Dick" had to do with "Richard.") The Democratic National Convention of 1960 was interesting enough for Theodore White to begin his iconic "The Making of the President" series, but there really hasn't been an interesting one since then, at least in terms of there being a real contest when the balloting starts.
Are we going to have a rip-roaring ballot battle this year? It took John W. Davis (of Davis Polk fame) 102 ballots to get nominated by the Democrats in 1924. Larry Ribstein thinks an interesting convention is a possibility.
What ruined all political conventions for me was the 1964 potboiler political novel, Convention, by Fletcher Knebel and Charles Bailey, the authors of the far more famous Seven Days in May. I have read it so many times that I almost have it memorized. Taking place in the "future" of 1972 (Frederick Stuart was elected President in 1968, but chose not to run again for health reasons; nevertheless, his victory "whetted Republican appetites" for more), it is very, very dated. It opens with a band marching through the hallway of the Conrad Hilton Hotel in Chicago right by the door of the suite where one of the candidates is staying. Yeah, right. The fact that one of the candidates is using a computer to track delegates is considered evil enough to cause delegates to change sides. Yeah, right. There is no Secret Service protection for the candidates. Yeah, right. But the balloting has the equivalent of Christian Laettner's buzzing beating shot against Kentucky. It's a great read!
Charles Manchester could be my president any day. Enough's enough! Julia Manchester for First Lady! Archie DuPage for Press Secretary! And remember the wise words of Obie O'Connell, that fat and grizzled old pol: "you always win on the last ballot."
March 4, 2008
Is "I Will Sue You Into Bankruptcy" a Permissible Coda to a "Govern Yourself Accordingly" Letter?
Posted by Jeff Lipshaw
The Wall Street Journal Law Blog reports that the lawyer for Denver Nuggets Coach George Karl sent a "govern yourself accordingly" letter to a fan running the firegeorgekarl.com blog.
While the Law Blog focuses on the merits of the question whether anything on the blog is actionable, notwithstanding New York Times v. Sullivan, I have a different question.
The letter concluded: "As Coach Karl’s counsel I am putting you on notice that I will sue you into bankruptcy should you cross the boundaries of permissible speech." I assume that the lawyer does not know how much it would take to sue this blogger into bankruptcy (maybe the reason he has so much time to blog is that he's independently wealthy). Having never used this phrase, nor been the recipient of a letter using this phrase, I'm not sure off the top of my head whether anything in the Model Rules prohibits this particular hyperbole.
Continuous Representation Tolls Statute Of Limitations
The New York Appellate Division for the First Judicial Department reinstated a legal malpractice case. The ongoing representation by the lawyers in the underlying case tolled the statute of limitations:
"The complaint here went beyond mere allegations that defendants continuously represented plaintiffs in a general professional relationship after the specific act of malpractice occurred (cf. Zaref v Berk & Michaels, 192 AD2d 346, 348 ), specifically alleging the continued advice they received from defendants regarding rent regulation, as a result of which they failed to take appropriate steps to assure the subject property would be free from rent regulation. As a result, plaintiffs stated a cause of action that was not barred by the statute of limitations (see Greene, 56 NY2d at 95)." (MIke Frisch)
Lipshaw on Models and Games for Ethicists and Attorneys
Posted by Alan Childress
Legal Scholarship Network sent me an email today of a recent issue of SSRN's journal on Law & Soc'y: Legal Prof., edited by Indiana's Bill Henderson. It includes an abstract and link to the article posted to SSRN by Jeffrey Lipshaw (Suffolk, and our own LPB), entitled "Models and Games: The Difference Between Explanation and Understanding for Lawyers and Ethicists." Here is the abstract:
There is value for lawyers in thinking about constructs of rules as games, on one hand, or models, on the other. Games are real in a way models are not. Games have thingness - an independent reality - and they can be played. Models have aboutness - they map onto something else that is real for the sake of simplification and explanation. But models and games are not dichotomous as the preceding claim makes them out to be. Sometimes models look just like games, and sometimes games can serve as models. Because models look like games, we may come to believe they are real - that the models have thingness rather than aboutness. People are prone to think some of the models they deal in all the time are real, like games, and perhaps even more real than the reality the models are supposed to represent. When that happens unreflectively in business, ethical and legal problems can ensue.
There is also a relationship between games and models as a way of thinking, and the position of the thinker as modeler, game creator, or game player. To engage in any of those acts is to use the legally trained mind to make sense of what is going on, and to act on it. But there are different ways of making sense, either by explaining or understanding, and it is not common in legal education to undertake the exercise of thinking about thinking, or theorizing about theory. I explore the consequence of confusing games and models in two contexts, financial accounting and contract interpretation, and consider the possibility of co-optation from models into games and vice versa. I conclude that practicing lawyers (or law professors) need to think about thinking itself or face the possibility of being misled by precisely the same context facing their clients. In short, lawyers need to be pragmatic ontologists.
March 4, 2008 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack
Can't Sue The Arbitrator
The New Jersey Appellate Division held that an arbitrator is immune from suit ("Immunity trumps liability") for actions taken during a "protracted and contentious" arbitration. The case involved a dispute between a contractor and a homeowner. After the arbitrator has denied a request to disqualify counsel and called a recess, the contractor alleged that he was assaulted by the homeowner's counsel in the hallway during the recess. The contractor sued the arbitrator, but the court found no basis for liability: "Plaintiff's attempt to characterize [the arbitrator's] failure to control the homeowner's attorney as a abdication of his judicial or quasi-judicial authority is unavailing." Rather, control of proceedings is a core judicial function and is thus immune from a claim for damages. (Mike Frisch)
Duty To Self-Report
A recent article on the web page of the California State Bar describes the duty, imposed by the legislature, of California lawyers to self-report specified information to the bar's disciplinary counsel. The article is authored by Chief Disciplinary Counsel Scott Drexel and notes that discipline may be imposed for the failure to self-report even if the underlying basis does not establish a grounds for sanction. (Mike Frisch)
There is a very interesting bar discipline case decided today by the Wisconsin Supreme Court. The court issued a public reprimand in a case involving an attorney retained by a husband and wife to remove any inaccuracies on their credit report after they had filed a chapter 7 bankruptcy. The attorney identified a possible issue with an adverse report by an entity called Direct Marketing("DM"). The clients apparently advised that they had had no dealings with DM. He contacted DM and was told that the husband had authorized the issuance of a credit card in response to a telemarketing call. Without consulting with the husband to confirm or deny this, the lawyer filed suit against DM alleging violations of the Fair Credit Reporting Act.
DM had recorded the telemarketing call in which the husband authorized the credit card. The lawyer persisted in the suit after receiving a copy of the recording. When the clients received a copy of the tape, they assumed the case would be dismissed. Nonetheless, the lawyer did not dismiss the case. While the lawyer had an affidavit from the husband denying any recollection of the call, the affidavit was never filed. Summary judgment was awarded to DM and eventually sanctions were imposed. The lawyer did not advise the clients of the judgment and sanctions award.
The court concluded that both lawyer and client bore responsibility for the litigation:
"The bottom line is that we concur with the referee that Attorney Crandall bears some responsibility for the sanction judgment entered against M.J.[the husband], but we do not believe that the responsibility lies solely with him. He did not keep his clients adequately informed and did not engage them sufficiently in decisions about whether and how to proceed with their claim. On the other hand, there is no allegation in the record that M.J. or C.J.[the wife] instructed Attorney Crandall to dismiss the lawsuit, and indeed M.J. indicated his approval of continuing the fight by executing an affidavit in opposition to Direct Merchants' summary judgment motion. Under these circumstances, we conclude that it would be equitable for Attorney Crandall to pay partial restitution to M.J. and C.J. in the flat amount of $1,000. This will avoid any further litigation over possible attorney fees or interest, which would be more costly than any amounts at issue."
The attorney also had been subject to an interim suspension for his failure to adequately respond to the bar investigation. Although he had not previously been disciplined for original misconduct in Wisconsin, he had been subject to a reciprocal suspension as a result of violations found in Minnesota. (Mike Frisch)
New Procedures For Lawyer Assistance
The Arkansas Supreme Court has adopted new procedures for the operation of the program that provides help to addicted lawyers. The new procedures "more correctly reflect the day-to-day activities, responsibilities and other programs attendant to the effective operation of the program." The program also has been renamed to reflect that its services are available to judges as well as members of the bar.
The District of Columbia bar magazine, The Washington Lawyer, has recently published an article about the lawyer assistance program in that jurisdiction. The D.C. program also provides counseling to law student who intend to apply for admission to the D.C. bar. (Mike Frisch)
Probation Revoked For Misconduct In Probation Revocation Case
The North Carolina Court of Appeals affirmed an order of the state disciplinary commission imposing a 90 day suspension for ethical misconduct that was found to violate a previous order of disciplinary probation. Ironically, the misconduct involved abandonment of a client who was alleged to have violated criminal probation. The attorney contended that a breach of the fee arrangement by the client justified his behavior. The court disagreed:
"An attorney not only is an employee of his
client but also is an officer of the court.
This dual relation imposes a dual obligation.
To the client who refuses to pay a fee the
attorney must give specific and reasonable
notice so that the client may have adequate
time to secure other counsel and so that he
may be heard if he disputes the charge of
nonpayment. To the court, which cannot cope
with the ever-increasing volume of litigation
unless lawyers are as concerned as is a
conscientious judge to utilize completely the
time of the term, the lawyer owes the duty to
perfect his withdrawal in time to prevent the
necessity of a continuance of the case." (Mike Frisch)
March 3, 2008
Michael Clayton: The Only Thing That Could Be More Unrealistic Than Its Portrayal of Bipolar Mania is If I Suggested that I Bear Any Resemblance to George Clooney (although I look a little like Tilda Swinton by the end of a 100 minute class)
Posted by Jeff Lipshaw
Alan has challenged me to address his speculations.
I didn't want to see Michael Clayton, even though I heard it was good. I have never seen Erin Brockovitch or A Civil Action. Yes, it's true that I was the general counsel of a large chemical company, and that's no doubt the reason. I have steadfastly refused to sit through any so-called "entertainment" in which I (or someone like me) is the villain ever since my daughter Arielle (now a grad student in theater at Columbia) was in the 8th grade, and wrote, produced, directed, and starred in a play called Lily's Life. This was the touching story of a girl with cystic fibrosis, in which the incomparably evil character was the FATHER, played by Arielle herself, since she had just fired the boy actor she had originally cast. I can still remember, when his utter venality came out, everybody in the audience turned around and stared at me with "you son-of-a-bitch" in their eyes. (What's worse is that Lily's Life played for years after on the local access channel of the Birmingham, Michigan school district.)
But Matt, my son, was home, and in a moment of father-son bonding, I agreed to watch Michael Clayton with him.
It was a good movie. But I have low standards, namely whether I fall asleep or not. Others, as Alan points out, have better points about the technical legal issues than I. Two things jumped out at me. (1) I thought Tilda Swinton's portrayal of the angst and distinction between the private moments of preparation and the public performance were accurate in an atmospheric sort of way, and (2) I have had experience dealing with people who are in manic stages of bipolar disorder, and there's no way that Tom Wilkinson went from being naked at a deposition (including running around in the parking lot) and screaming "I am Shiva, the Goddess of Death" to getting on an airplane and making it back to New York where he is together enough to buy fourteen loaves of bread. In real life, even if he makes it to the airport, he's locked up before he goes through security.
Unsolicited Contact Does Not Make A Prospective Client
The Professional Ethics Committee of Florida Bar has a new proposed ethics opinion that deals with obligations to prospective clients. Under circumstances where a putative prospective client makes an unsolicited contact with an attorney, the committee opines:
"The committee's opinion is that a person has no reasonable expectation that a lawyer will keep confidential information that is sent by that person on a totally unsolicited basis. The committee concludes that such a person is not a 'prospective client' within the meaning of Rule 4-1.18, because the lawyer has not discussed the possibility of representation with the person, nor even agreed to consider representing the person. The lawyer therefore will not have a conflict of interest in representing the adversary of a person who has sent information to the lawyer on an unsolicited basis, and the lawyer may disclose or use that unsolicited information in the representation of the adversary. On the other hand, if the lawyer has discussed the possibility of representation with a person or agreed to consider representing the person, that person is a 'prospective client' under Rule 4-1.18, and the lawyer therefore owes the person a duty of confidentiality which may create a conflict of interest in representation of an adversary. In adopting this opinion, the committee withdraws Florida Ethics Opinion 66-23. The committee cautions lawyers who invite persons seeking legal representation to provide information via the lawyer's website that the lawyer should prominently post a disclosure statement that the lawyer does not intend to treat such information as confidential and that the lawyer may use the information against the person if the lawyer intends to do so." (Mike Frisch)
An attorney retained to represent a grandmother and mother in a child-custody matter was held in contempt of court by the Chancery Court for failure to appear at a hearing, violating a gag order and a youth court confidentiality statute, issuing a subpoena in violation of a subpoena order and filing frivolous pleadings and "otherwise harassing the guardian ad litem and counsel for the father..." The attorney was ordered to pay fines, attorneys' fees and sentenced to jail. The jail sentence had been set aside on a motion for reconsideration.
The Mississippi Supreme Court held that the contemnor was liable for fees and costs of counsel, but remanded for a finding whether the amount awarded for such fees and costs was reasonable. As to the breach of confidentiality, the evidence showed that the client grandmother was given the guardian ad litem's report by the attorney. Grandmother then attached the report to a bar complaint. The court found insufficient evidence of contempt because the client had a right to be informed of the outcome of the hearing. Further, the gag order was too vague to form a basis for contempt. Finally, the chancellor had improperly presided over the subpoena contempt issue because of "personal involvement in the prosecution of this charge." The court ordered a new trial on that aspect of the contempt case. (Mike Frisch)
Avoiding A Substantial Relationship Issue
The District of Columbia Bar's Legal Ethics Committee has recently issued an opinion that concludes that a lawyer can avoid violation of Rule 1.9's proscription against being adverse to a former client in a "substantially related" matter by limiting the scope of the new representation. From the opinion summary:
"Subject to certain conditions, a lawyer may limit the scope of the new representation such that factual information normally obtained in the prior matter would be legally irrelevant to the advancement of the current client’s position in the new matter. Specifically, by agreeing only to represent a client as to a discrete legal issue or with respect to a discrete stage in the litigation, a lawyer may be able to limit the scope of the representation such that the new matter is not substantially related to the prior matter. Restrictions on the scope of the representation that effectively ensure that there is no substantial risk that confidential factual information as would normally have been obtained in the prior representation would be useful or relevant to advance the client’s position in the new matter may, under certain circumstances, be sufficient to avoid a conflict of interest." (Mike Frisch)
E-Discovery Rules Proposed in California
The California Bar Journal reports that proposed rules governing electronic discovery are under consideration. The proposals from the California Judicial Council would amend two case management court rules as well as an amendment to the state Civil Discovery Act. The latter proposal will require approval from the state legislature. (Mike Frisch)
March 2, 2008
Michael Clayton Finds His Ethics, as General Counsel Loses Hers
Posted by Alan Childress
After re-watching Michael Clayton yesterday, I realized that one could read its ethical barometer as saying that the outside Biglaw firm lawyers just want to do good, if only if it were not for the evil though angst-ridden General Counsel. I promised Jeff Lipshaw today that I would note here that there are some remarkable similarities between the movie and Jeff's pre-professor career (with no parallels between his looks and Clooney's, or for that matter Tilda Swinton's). He was, inter alia, General Counsel and VP at Great Lakes Chemical Company, which has a name as generic (and thus fake-sounding per Hollywood) as does U/North Agricultural. He insists, and I tend to believe him, that he never hired a hitman (or even the politically correct hitperson) to knock off a senior partner of an outside-counsel NYC law firm.
Good to know.
Update: Here is Columbia's Michael Dorf on the movie, also posted this weekend. Dorf says the movie is 'unfair to lawyers' in part because the ethical dilemma that the senior partner had is a false one, readily resolved under current ethics and discovery rules. There is a nice exchange in the comments.