Friday, March 14, 2008
Posted by Alan Childress
Even though I don't teach or even like Contracts, I do read the Contracts Prof Blog because its snippets and examples are often funny and telling. I recently expressed to its founding editor, Frank Snyder (a great blogger like the other prolific Frank: Pasquale) my sorrow that Prof. Snyder had been targeted for a blog beat-down by someone whom, I must assume, never met Frank. Somehow in our own email exchange, Frank mentioned that they get a lot of hits because of a story -- an actual contracts story -- they once posted on Kate Beckinsale's breasts. (Actually they posted it on the blog about them; misplaced modifier.)
Such is the way of internet searching and blog page visits: the actual popularity of a blog sometimes relates to its sitemetercount in the same way that U.S. News & World Report rankings relate to the real quality of a law school. It's probably in the neighborhood of about right in many cases, but mostly by methodological accident. I don't know if concurring opinions would concur with that opinion, but I do note that it celebrated its bizzillionth hit by thanking Jennifer Aniston and noting (per Dan Solove):
One of my more popular posts is one entitled Jennifer Aniston Nude Photos and the Anti-Paparazzi Act. It seems to be getting a lot of readers interested in learning about the workings of the Anti-Paparazzi Act and the law of information privacy. It sure is surprising that so many readers are eager to understand this rather technical statute.
So I should not have been shocked to notice through our sitemeter that we are getting some hits based on Mike's November 2007 post discussing bar discipline issues related to the law firm of Kimmel & Silverman, in its Maryland office.
I can only hope that, if Mike ever needs to do a substantive follow-up, by then the firm will have expanded and become the law firm of Kimmel, Silverman, Damon and Affleck.
Posted by Jeff Lipshaw
Paul Secunda (left), who is moving from Mississippi to Marquette, has posted Tales of a Law Professor Lateral Nothing on SSRN. This is a combined narrative and "how-to" on moving from school to school once you have already climbed the ivy-covered walls and deposited yourself in legal academia.
You know, when you consider it, "lateral" as the descriptor doesn't make much sense. Personally, I think "Upwardly Mobile Market" would be better. Or the most accurate would be the "Wannabe Upwardly Mobile Market Except When I Can't Stand It Here So Much I'll Take Anything or They're Offering Me a Chair and a Lot of Money to Move the Other Way Market."
My view on looking for jobs is that one should do it less frequently than one has colonoscopies. Anyway, here's Paul's abstract:
This Essay seeks to uncover the mysterious world of the law professor lateral hiring market, which has become increasingly important in the last number of years as law schools seek to build their reputations in this U.S. News & World Report world through the hiring of prominent faculty members.
Although the advice and guidance given in this essay are sometimes written with tongue firmly in cheek, I do attempt to accomplish two important objectives here. First, there has been scarcely anything written about the lateral hiring market for law professors, as opposed to the cottage industry that has been devoted to the entry-level law professor hiring market. This essay methodically takes the lateral-to-be professor through every step of the lateral process from the first-person perspective of one who has been on the market for three years and successfully lateraled this past year.
Second, and perhaps more importantly, I want to contribute to the process of bringing back to legal academic writing the form of the first-person narrative. Like my colleague, David Case, I believe that, "the narrative voice is an important, and perhaps underutilized, tool in deconstructing the arbitrary processes of the legal academic hiring market." See David Case, The Pedagogical Don Quixote de la Mississippi, 33 U. Mem. L. Rev. 529, 530 n.2 (2003).
Posted by Jeff Lipshaw
Dan Slater, the law blogger for the Wall Street Journal, has a post up on comparative pay as between in-house and out-house (oops, law firm) lawyers. I don't have any beef one way or another with the pay statistics, but I feel obliged to dispute this bit of anecdotal evidence about in-house practice. According to Zachary Zaharek, a (or the) senior corporate counsel at First American CoreLogic, and the head of the Southern California chapter of the Association of Corporate Counsel:
“An associate is getting grinded with billable hour requirements, and working weekends and late at night,” said Zaharek, who was a bankruptcy attorney at Malcolm Cisneros before going in-house. “A corporate counsel doesn’t have that. Also, when you’re a litigator, you’re looking back at history and asking what should the parties have done. As an in-house lawyer, you’re looking ahead and asking how you can help the company avoid pitfalls.”
But it’s not all peaches and cream as a company lawyer. “At a law firm you have a book of business, which is maybe 10 clients,” explained Zaharek. “At a corporation, you only have one client. So the risk is that if the company goes insolvent, or gets merged or bought, then there goes your client.”
Well, let's see. I spent the better part of twelve years running in-house law departments, and I disagree with just about everything in the quote.
1. Working hard. Just as I suspect there are law firms in which the culture is that you don't work nights and weekends, I suppose there are companies with similar cultures. My experience was that our lawyers worked as long and as hard, traveled more (all over the world), and were subject overall to as much stress as their private firm counterparts. What I know was different, and I think ameliorated some of the particular LAW FIRM stress, was:
(a) We didn't have billable hours. Whatever had to get done got done. Not writing your time down and being measured by that (as opposed to the results you get or the quality of your work or the respect of your clients) was the biggest single difference from law firm life.
(b) If you are the GC of a business, the work is in many ways more varied. Not only do you practice law, but you get involved in the management of the business, and you get involved in the administration (financial and otherwise) of the law function. So much of what a law firm lawyer couldn't count as billable hours was a significant portion of an in-house lawyer's job. And the mere variety, I think, reduces the kind of stress you feel in a law firm.
(c) Being involved in a business may well be a lot more meaningful than cranking out billables, and contributes to a desire to work hard.
(d) One of the first questions you always get from people is whether your life, now that you are in-house, is more "manageable." Mine never was, and I used to tell people that if it were possible to translate my work into billable hour equivalents, it would have been in the 2,400 hour neighborhood.
(e) The quickest way to disqualify yourself from most the of in-house jobs I knew about was to suggest that you wanted to move in order not to work as hard.
2. "At a corporation you have only one client. . . ." As to job security, I read a lot more about lawyers getting laid off from big law firms than I do from big companies. I am not suggesting one is more secure than another. I just think the inference is unsupported. Moreover, it depends on the company. In big portfolio companies, you may well acquire clients as well. The lawyers may move with transferred companies (that happens a lot). As to having only one client, again, this is going to vary by company, but my guess is that rarely does an in-house lawyer feel that he or she has one client. You may have responsibility for multiple divisions. You will certainly be asked by multiple people - the V.P. of Sales and Marketing, the head of corporate development, the CEO, the V.P. of Human Resources, etc. - to get involved in many different things, and those individual commitments are just like making commitments to different clients in a law firm.
3. Looking ahead and looking back. It depends. Part of what you do in-house may be to manage litigation. And in private practice you may do deals.
This, I'm afraid, is an area fraught with easy (and misleading) generalizations.
* Thanks to www.lifeatthebar.com for the picture of the clock.
In a rare bar discipline case brought against a law professor, the Iowa Supreme Court imposed a suspension of a former University of Iowa law professor who had "raised the scores on two student evaluations and manufactured three highly positive evaluations in order to improve markedly his teaching effectiveness score." The court noted that "[n]ationally recognized scholars had glowingly praised [the professor's] scholarship for its originality, incisiveness, and descriptive power...he is particularly well-known as one of the leading scholars nationally in mental health law. Without question, [he] is an intellectually gifted lawyer."
The professor had been diagnosed in 1990 with bipolar affective disorder and had exhausted his supply of prescribed medication at the time of the misconduct. He also suffers from obstructive sleep apnea and diabetes mellitus. There were times that he "was noncompliant with hospital rules, engaged in conflicts with hospital staff and refused to follow medical advice."
As to the misconduct, he had remained in the room for the evaluations contrary to school policy. He made a speech to the students about the importance of the evaluations and attributed his problems at the law school to faculty jealousy. He and his research assistant took the evaluations. The conduct was reported by a student to the Associate Dean of Student Affairs. The school administration then conducted a confidential investigation. The evaluations "are a factor in determining who is appointed to faculty chairs at the law school. [He] believed he had been treated badly by the law school because he deserved to be appointed to a faculty chair, but had not yet received one."
The court concluded that "the total picture of [his] behavior on the evening [of the misconduct] suggests intentional, conscious conduct... the asserted pattern of intentional, conscious conduct, interrupted at the key moment by a brief period of unconscious delirium in which the actus reus was performed on five evaluations, seems as improbable to us as it did to [the Board's medical expert]." The court rejected the proposed one-year suspension in favor of an indefinite suspension with no possibility of reinstatement for three months and conditions on reinstatement. (Mike Frisch)
The Iowa Supreme Court rejected the recommendation of its Grievance Commission of license revocation and reprimanded the attorney. The attorney had been suspended from practice on three prior occasions. Although the record supported the commission's findings of numerous ethics violations, the misconduct "occurred contemporaneously with the conduct which formed the basis for [the court's] conclusion in 2002 that [the attorney's] license should be suspended with no possibility of reinstatement for three years." Because the attorney "is presently under suspension and...will be required to satify numerous conditions if he should apply for reinstatement, a more severe penalty will not serve the public or deter future misconduct." (Mike Frisch)
Thursday, March 13, 2008
The District of Columbia Court of Appeals held that reciprocal discipline may be imposed based on misconduct that led to disciplinary action in California but had taken place prior to the attorney's admission to the D.C. Bar. The attorney had contended that "his serious record of prior discipline, which includes two felony convictions and a period of incarceration" was disclosed when he was admitted. The court noted that the California discipline had been imposed a full year after his admission in D.C. Further, the court endorsed the conclusion that a lawyer who is admitted can have his license revoked "because of conduct of which he was guilty before he passed the examinations and obtained a certificate of practice (quoting a 1930 Florida case)." In addition to a five-year suspension, the attorney must provide "a candid and satisfactory explanation of the contradictions" in his submissions in the D.C. case. (Mike Frisch)
The Minnesota Supreme Court imposed a suspension for a minimum of one year in a matter where "a lawyer deceptively labeled a personal account as a trust account to shield his personal funds from judgment creditors, improperly kept personal funds in his client trust account, commingled client and personal funds, and made misrepresentations to and failed to cooperate with [disciplinary counsel]. The attorney "had two prior instances of similar misconduct, failed to recognize the wrongfulness of his conduct, and failed to place client retainers in a trust account." The court rejected the contention that the attorney had been denied discovery from disciplinary counsel.
In light of the attorney's misconduct, attitude and prior discipline, one might fairly ask what it takes to get disbarred? (Mike Frisch)
The web page of the Ohio Supreme Court has an announcement of payments in excess of $225,000 to victims of lawyer misconduct from the Clients' Security Fund of Ohio ("CSF"). The court assures the public that these payments are a result of the misconduct of a few bad apples:
"The CSF was created in 1985 by the Supreme Court of Ohio to reimburse victims of attorney theft, embezzlement or misappropriation. The CSF is not taxpayer funded, but funded entirely by registration fees paid by every Ohio attorney. Ohio has more than 35,000 attorneys engaged in the active practice of law. Less than one tenth of one percent of those attorneys is involved in CSF claims." (Mike Frisch)
The District of Columbia Board on Professional Responsibility recently recommended disbarment of an attorney admitted in 2002 who used his law license for little purpose other than to steal "fees" from his numerous clients. The facts are detailed in a hearing committee report of over 100 pages that is appended to the board's decision. The lawyer advertised his legal services to successful bidders in real property tax foreclosure sales. According to the Board, "[h]is willingness to hold himself out to an unsuspecting public as an attorney experienced in tax lien lawsuits, who had 'helped more than one hundred clients successfully navigate the legal process' was fanciful. Nearly all of [the] clients' cases were dismissed due to [his] failures. The damage he caused to the clients was far-reaching, including not only the purchase price each of them lost when the property was redeemed and no action filed to protect them, but also fees paid to Respondent." The board recommends disbarment and restitution.
But wait. What about those fees that the attorney collected, placed in escrow and thereafter had taken for his own use? Although unnecessary to its decision, the board "believes it should state its position for the Court" that, because the lawyer called the payments "flat fees," such payments were the lawyers property on receipt and exempt from a charge of misappropriation. In other words, the lawyer "earns" the flat fee on receipt even if the lawyer performs no service of value or, as here, inflicts great harm through the "representation." Only lawyers could come up with reasoning like that. (Mike Frisch)
Wednesday, March 12, 2008
Posted by Alan Childress
Chief Justice Warren Burger and two other federal judges initiated disbarment proceedings against me in 1966. The charge was that, in a lecture to a group of lawyers, I had expressed opinions that "appear to be in conflict with the Canons of Professional Ethics of the American Bar Association." The offensive opinions related to the criminal defense lawyer's conflicting ethical obligations in dealing with client perjury, based on requirements in the Canons of Professional Ethics.
While the disbarment proceedings were pending, the lecture became an article: The Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions. After four months of hearings and deliberations, the charges were dismissed. As shown below, however, the controversy continues four decades later, principally because of serious misunderstandings about of the constitutional and policy issues involved.
Part I of this article relates the beginning of the controversy over client perjury in 1966. The discussion sets out the trilemma created by three ethical obligations that are imposed upon the criminal defense lawyer. The first ethical obligation is that the lawyer learn everything possible about a client's case. The second obligation is that the lawyer keep knowledge about the client's case confidential except to advance the client's interests. The third obligation is that the lawyer reveal the client's confidential information to the court if doing so should become necessary to expose what the lawyer knows to be perjurious testimony by the client.
In a lecture to a group of lawyers in a Criminal Trial Institute, and in a subsequent article, I favored the view that the lawyer who knows that the client intends to lie on the witness stand should make good faith efforts to dissuade the client from committing the perjury, but, if unsuccessful in those efforts, the lawyer should maintain confidentiality and should present the client's testimony at trial in the ordinary way.
Part II of this article explains that the view that I expressed in the lecture and in the article reflected the traditional resolution of the perjury trilemma by the American bar. Part II(A) notes that the ABA Canons of Professional Ethics (1908) imposed conflicting obligations of client confidentiality and of candor to the court. Resolving the conflict in formal opinions, the American Bar Association Standing Committee on Ethics and Professional Responsibility affirmed that a lawyer's duty to preserve a client's confidences takes precedence over candor to the court.
March 12, 2008 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)
Posted by Steven Alan Childress
There is no pretense that this has to do with the blog's topic, but since everyone knows blogue is French for self-indulgence, I am hereby posting a link to an SSRN page for my article, "Revolving Trapdoors: Preserving Sufficiency Review of the Civil Jury after Unitherm and Amended Rule 50," recently published as 26 Review of Litigation 239 (2007). Here is the abstract:
The article considers recent case law and an amendment to Rule 50 of the Federal Rules of Civil Procedure. Both change the possibilities and effect, on appeal in federal courts, of procedural lapses and waivers by litigants who wish to seek review of the sufficiency of the evidence to support a jury verdict, as by appeal of a decision on a motion for judgment as a matter of law. Both the timing and completeness of such motions and preservation of sufficiency error are discussed.
The U.S. Supreme Court in Unitherm enforced a very strict waiver review that found that such error, and even review for new trial, was fully waived and thus not preserved for any appellate review under the circumstances of the case. The newer Rule 50, on the other hand, more generously expands the timing for adequately making such a motion or raising and preserving the sufficiency issue. Together, these changes solve some common trapdoors for litigants and judges, but create new ones or maintain old ones that should still be considered at trial of civil cases in federal court.
March 12, 2008 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)
The Maryland Court of Appeals adopted the recommendation of the State Board of Law Examiners and denied admission to an applicant who "had shown a pattern of financial irresponsibility, had not been candid in disclosures on his law school and Bar applications, and had had an inappropriate relationship with a 15 year old female." The board's Character Committee found that the applicant's "fervant cleanup of his credit [was] belated and unconvincing." The committee had "lingering, unresolved concerns about the entire history [of the applicant's involvement with the 15 year old] and propriety of the relationship" but found "it clear that the young woman was not emotionally mature enough to enter into, much less maintain, her relationship with applicant." After reviewing its precedents on financial irresponsibility and candor as bar admission issues, the court also found that the applicant's "moral fitness and character is impugned by the inappropriate relationship..." (Mike Frisch)
Posted by Alan Childress
As Gov. Spitzer resigned just now, effective Monday, news organizations and blogs are speculating on possible disbarment to come. One brief post which helpfully lays out the law from NY (and notes the complication of federal charges mirroring state crimes, as Mike has commented on here in another context) is by Bainbridge on his blog here. Realistically, he will not be disbarred, and anyone who speculates that he will is like a commenter on criminal sentencing who only looks at the highly-hypothetical max, and not the grid guidelines typical for such offenses.
An Oklahoma lawyer who was charged with ethics violations in a series of matters admitted that he was addicted to methamphetamine. The Oklahoma Bar Association brought disciplinary, but not disability proceedings, against the attorney. The Oklahoma Supreme Court suspended the attorney for two years in the disciplinary cases but also invoked disability rules requiring that the attorney demonstrate sobriety as a precondition to reinstatement. The attorney's acknowledgment of his drug problem and unwillingness to treat it as a complete excuse was refreshingly candid:
"Respondent freely admits his addiction to methamphetamine. He described it as a 'huge catalyst' in the poor decisions that led to his financial problems and professional misconduct. At the same time, however, he refuses to attribute responsibility for his professional misconduct solely to his drug use, which he describes as an 'easy scapegoat.' He notes that his drug use began with his voluntary decision to engage in such conduct.
Respondent was questioned specifically about his habitual drug use by the General Counsel and by individual members of the PRT. Yet, there is nothing in the record to indicate that either the General Counsel or the PRT ever considered a Rule 10 [disability] suspension. Rather, the matter proceeded under Rule 6 [disciplinary proceeding] with a recommendation by the OBA and the PRT of a suspension of two years and one day.
It is clear from the record that Respondent has a serious drug problem. He admitted that he needs time away from the practice of law to deal with his drug addiction and financial issues. It is equally clear that at the time of the hearing he was unwilling and unable to properly and efficiently represent clients."
The court held that it had the authority to invoke the disability rules without a proceeding under those rules initiated by the General Counsel of the Bar. A dissent disagreed with this approach: "It is a prosecution decision as to what charges to bring and whether the charges are brought [under disciplinary or disability rules]. That is not a decision to be made by the Court...This Court is not a social service agency or a drug/alcohol rehabilitation clearinghouse. It is not our duty to direct or manage the rehabilitation of alcohol and drug addicted members of the Oklahoma Bar Association. It is our duty to adjudicate, discipline if necessary, and protect the public and the integrity of the judicial system." (Mike Frisch)
Posted by Alan Childress
LAW STUDENTS TO HOLD NATIONAL MENTAL HEALTH DAY
Washington, DC — On, March 27, 2008, law student leaders will host a series of meetings nationwide to discuss the growing mental health crisis on campuses and the need for proactive steps to curb the challenges faced by students.
The mental health initiative encompasses three main goals: 1) establish the ABA Law Student Division National Mental Health Day, which will be initiated this year on March 27, 2008; 2) create a Mental Health Toolkit [Download toolkit.pdf - ed.] for SBA presidents and law school Deans to increase awareness of mental health issues and provide information on how to implement mental health training and prevention at law school orientation, and 3) to encourage every law school Dean to make mental health professionals available on law school campuses.
“It is our hope that this will encourage law schools and students to confront some of the major mental health issues impacting our campuses and to erase the stigma faced by students coping with mental health problems,” said Daniel Suvor, Chair of the ABA Law Student Division. “The Law Student Division is actively engaging schools to enhance their mental health programming to respond to this growing crisis.”
“Practicing lawyers exhibit clinical anxiety, hostility, and depression at rates that range from 8 to 15 times the general population,” stated Ben Gibson, Vice Chair of Student Bar Associations for the ABA Law Student Division. “If these issues are not dealt with early on they can threaten the success of one’s future professional career.”
The D.C. Board on Professional Responsibility has filed a recommendation for reciprocal discipline based on a sanction imposed in Colorado. The attorney had traveled from Denver to Georgia to attend a football game. Although he had a client in Georgia, the trip did not involve client-related business. The lawyer sought and obtained reimbursement for the trip from the firm in an amount in excess of $1,000. Shortly thereafter, he reported the misconduct to his firm and to the Colorado bar. Colorado had imposed a stayed 90-day suspension with requirements of counseling, double CLE and submission of all expense requests to his firm's managing partner.
Apologies to Andy Griffith for the title to this post. (Mike Frisch)
In the wake of yesterday's post on crack cocaine addiction as possible mitigation comes an order from the Pennsylvania Supreme Court. The court approved a recommendation of supervised probation in a case where the lawyer previously had been arrested and convicted of possession of heroin and cocaine. The Disciplinary Board imposed a private reprimand and two years probation as discipline for the conviction in 2006.
The misconduct here related to the attorney's handling of a civil action for a client. The client (who was aware of the lawyer's arrest) wanted the lawyer to press for answers to discovery from the other side that were overdue. The lawyer did not so. The client sought confirmation. In response, the lawyer fabricated a court order that purported to grant the relief that the client desired. Thereafter, the lawyer was discharged.
The Board concluded based on expert testimony that the attorney "had an attention deficit hyperactivity disorder with hyperactive impulsivity, inattentiveness and executive dysfunction, leading to substance abuse" and that he is now " 'clean' and compliant with [treatment] recommendations." At the time of the misconduct, the attorney "was going through a difficult period in his life." Not only that, the client was "demanding and manipulative." The Board found that his "psychiatric condition at the time he was representing [the client] combined with what Respondent perceived as [the client's] demands led him to forge a judge's signature in order to placate [the client]...respondent has met his burden of proof pursuant to Office of Disciplinary Counsel v. Braun, 553 A.2d 894 (Pa. 1989) and is entitled to mitigation." The probation "will serve the underlying purpose of the disciplinary system yet not destroy Respondent's young career." The Board recommended, and the court imposed, a three year probation.
Forgery caused by ADHD and inattentiveness? I can see the link between such conditions and neglect of client matters. I'm not sure about the casual connection when the misconduct involves the calculated creation of false documents with intent to deceive a client. (Mike Frisch)
Tuesday, March 11, 2008
An attorney who had misappropriated client funds while addicted to crack cocaine was disbarred by the New York Appellate Division for the First Judicial Department. The attorney had not helped his cause by appearing at his deposition in the bar proceeding while under the influence of cocaine. He had not demonstrated that he was drug free in the recent past. The court declined to consider the addiction as a mitigating factor as the attorney was not "so out of touch with reality that he did not now what he was doing." (Mike Frisch)
The Arkansas Supreme Court reprimanded and fined an attorney who represented a client in a capital murder trial and appeal. The attorney filed two motions to withdraw from the appeal, stating that the "client did not pay the agreed fee for representation in the matter." The motions were denied and the attorney was directed to file a brief. He sought and was granted an extension. When the court denied the second motion to withdraw, it "declared [the client] indigent, and appointed [the attorney] to represent [the client] on appeal." The attorney then filed the brief within the period granted by the court.
However, the court referred the matter to the Office of Professional Conduct. The attorney was charged with failure to act with reasonable diligence and promptness, failure to comply with an Arkansas rule that requires trial counsel to continue to represent the client on appeal unless granted leave to withdraw and failure to follow appellate rules and procedures. The attorney defaulted on the charges. Maybe he should have defended against the charges. (Mike Frisch)
A lawyer drafted durable powers of attorney for a client and his spouse that contained a provision that gave the lawyer full authority as attorney-in-fact to deal with the client's assets. The client was "an elderly man residing in a retirement community." The lawyer thereafter abused to authority and stole over $400,000. The client sued and the lawyer settled, agreeing to pay restitution. The lawyer pleaded guilty to exploitation of a vulnerable adult and was sentenced to 18 months under house arrest. The lawyer siught to resign from the bar, but the South Carolina Supreme Court refused to accept the resignation and ordered disbarment. (Mike Frisch)