March 21, 2008
The Supreme Court of Mississippi accepted an attorney's request for irrevocable resignation and ordered permanent disbarment. Disbarment proceedings were not necessary in light of the resignation. The attorney had entered a guilty plea in federal court to bribery of a state official. (Mike Frisch)
Restitution Leads To Sanction Reduction
The Supreme Court of Pennsylvania approved a joint petition for a two-year suspension in a matter where an attorney had converted to his own use fee payments due to his firm. The court decision appends a lengthy agreed statement of facts that lays out the particulars in detail. The discussion of sanction options is of particular interest-- the attorney had no prior discipline and had made restitution to the firm. These factors were considered to merit a sanction somewhat less than that imposed in other cases involving law-firm conversion. (Mike Frisch)
Sanction By Default
The Supreme Court of Wisconsin imposed a two-year suspension in a matter in which the accused attorney had defaulted on charges of 17 ethical violations. The misconduct arose from a business transaction that the attorney had entered into with her office assistant to purchase and operate the Moonlight Supper Club. The attorney was attorney for the business entity created to make the purchase and was charged, among other things, with dishonesty, misrepresentation and trust account violations.
As to possible mitigation, it was noted that the attorney had moved to North Carolina and no longer practices law in Wisconsin:
"Although not described as a mitigating factor by the referee, it is noteworthy that Attorney Smith informed the referee that she was injured by a lightning strike in October 2001 and continues to suffer health problems including 'gradual decline in physical muscle control, memory and stress management' that induced her to close her practice in 2003. She had not previously been subject to discipline. She also disputed some of the allegations, primarily with respect to the amount of knowledge, information and control Schmidt [the office assistant/partner] had over the financial aspects of the failed business. She noted that the grievants' allegations were not made until after they collected unemployment compensation from her office. She adds:
'Lest the Court thinks I take any of these accusations lightly, this is my life and reputation that has been ruined. I have suffered for more than three years with Ms. Schmidt's and her family and friends accusations. I had voiced to OLR in 2004 that I desired to retire my license as I could not afford dues nor attend CLE's for a profession that I could no longer practice.' "
It would certainly have been preferable to these charges resolved through a contested hearing rather than a default. It is hard not to have some sympathy for the accused lawyer. (Mike Frisch)
Fairness, Efficiency, and the Reliance Interest in Law Review Article Placement
Posted by Jeff Lipshaw
As I continue to get rejections from law review articles editors based on the expedite request I sent out with a deadline date two weeks ago, and having since accepted a publication offer, I have been going through a little thought experiment (read: fantasy) about how to deal with a tardy offer coming from, say, a "top fifteen" law review.
Would you abide by your commitment to the first one?
I can imagine this conversation:
Professor: "Hello, EAE from East of the Rockies Land Grant University Law Review."
Professor: "A funny thing happened on the way to class today."
Professor: "You know that piece of mine you accepted three weeks ago?"
Professor: "I just got an offer from the Founded in the Eighteenth Century East Coast University Law Review."
Now here we have a divergence:
(A): Professor Shavell and Kaplow Disciple: "The utility I will gain from disavowing my acceptance far exceeds the cost to you. This is an efficient breach. See ya."
(B) Professor Fried Discipline: "I am morally bound to my promise to you. I just wanted to let you know while I weep quietly."
(C) Professors Fuller and Perdue Disciple: "Have you started cite-checking yet?"
(D) Professor Lipshaw: "I am legally and morally bound to you. Would you, however, release me from the obligation? What can I offer you for the release?"
Tune in later for my views on another (from my perspective) fantasy: the curse of the "top five" law review "short decision window" strategy. To paraphrase Tevye: "May the Lord smite me with it, and may I never recover."
Expert Opinion Insufficient To Establish Legal Malpractice
The Nebraska Supreme Court upheld a lower court order granting summary judgment to the attorney-defendant in a legal malpractice case. The underlying matter (involving a dispute between two sisters over family real property) had been settled based on the lawyer's advice. While the settlement did not preclude a subsequent malpractice claim, the plaintiff had failed to produce sufficient expert testimony that the defendant had breached applicable standard of care to counter defendant's experts. The plaintiff's key expert was a lawyer and former judge named Ronald Reagan. (Mike Frisch)
Ghostwriting Pleadings Is Dishonest In Iowa
An attorney who accepted a new case and retainer fee 15 days after he had been suspended from practice had his law license revoked by the Iowa Supreme Court. One interesting aspect of the case involves the practice of "ghostwriting" pleadings, which the court condemns as conduct involving dishonesty and deceit. Here, the ghostwriting concealed the participation of the suspended lawyer in the representation.
The attorney also had an extensive record of prior discipline. "Our legal system depends on zealous advocates who are diligent and honest...[the revoked attorney] possesses neither of these qualities." (Mike Frisch)
Form Over Substance
A former name partner of Milberg Weiss was disbarred yesterday by order of the New York Appellate Division for the First Judicial Department. The attorney had been convicted of a federal felony. His contention that the felony had no parallel in New York state law was rejected as "form over substance." The court found:
"According to the Second Superceding Information, Milberg Weiss constituted an enterprise specializing in representing plaintiffs in class actions and shareholder derivative actions. Respondent admitted in his plea allocution and plea agreement, read in conjunction with the Information, that from approximately 2003 through at least 2005, while respondent was a partner at Milberg Weiss, there was an agreement among two or more other Milberg Weiss attorneys to conduct Milberg Weiss's affairs through a 'pattern of racketeering activity.' This involved giving secret, illegal kickbacks to individual class action plaintiffs who were essentially on call to act as lead plaintiffs. This arrangement allowed Milberg Weiss to file lawsuits faster and to gain the position as lead counsel to receive higher fees.
Specifically, respondent admitted that he participated in negotiating with Howard J. Vogel (Vogel) the amounts Milberg Weiss paid to Vogel pursuant to this secret payment arrangement. Respondent also admitted working with Vogel to prepare and file numerous class actions in which Vogel, his relatives and entities Vogel controlled served as named plaintiffs for Milberg Weiss. Respondent also caused Milberg Weiss to issue checks to others, (generally law firms), serving as intermediaries for Vogel with the understanding and intent that these intermediaries would distribute these funds to Vogel. Respondent also knew that transmittal letters falsely described these checks as the 'share' of attorneys' fees Milberg Weiss owed for the intermediaries' work on the class actions."
Where a federal felony conviction equates to a New York state felony, disbarment is automatic and the convicted attorney is struck from the rolls. (Mike Frisch)
Double Secret Probation?
The Supreme Court of Minnesota disbarred an attorney who was admitted in 1990 as a result of a pattern of misconduct including neglect, lack of diligence, failure to account for legal fees, failure to pay a judgment incurred in a professional capacity and failure to notify clients of an earlier suspension. The court recites a lengthy history of prior discipline that includes a prior suspension and four admonitions. Also in the mix is an earlier sanction of "private probation." If I were a client, I'd be uncomfortable with the possibility that my lawyer was on probation but that the sanction was a private matter between the lawyer and the bar. (Mike Frisch)
Words And Pictures
The Supreme Court of Florida sanctioned an attorney for filing a series of pleadings that the court characterized as "inappropriate and pornographic material [submitted] to this Court." The submissions that the court found offensive are set out with some particularity in the order. The court did not find that the use of illustrations added to the arguments made by the attorney: "Between the text of [a] motion, [the attorney] pasted images of swastikas, kangaroos in court, a reproduced dollar bill, cartoon squirrels, Paul Simon, Paul Newman, Ray Charles, a handprint with the word 'SLAP!' written under it, Bar Governor Benedict P. Kuehne, a baby, Ed Bradley, Jack Nicholson, Justice Clarence Thomas, Julius Caesar, monkeys, and a house of cards..."
The sanction requires that any future pleadings be signed by a member in good standing of the Florida Bar other than the attorney. The court states this sanction does not deny the attorney access to the court, but rather places a reasonable limitation in light of past abuse. The court is awaiting a referee report in two bar discipline cases involving the lawyer.
An extensive Wikipedia entry concerning the attorney is linked here. (Mike Frisch)
March 20, 2008
The Public Speaks
A relatively recent (and much needed) improvement to the web page page of the District of Columbia Bar provides ready access to the reports of hearing committees in bar discipline matters. A case decided today by the D.C. Court of Appeals imposed an 18 month suspension with automatic reinstatement of a career Assistant United States Attorney who had submitted false evidence in his own child support case. The court adopted the proposed sanction of both the hearing committee and the Board on Professional Responsibility. The hearing committee majority had rejected Bar Counsel's request for a fitness showing prior to reinstatement. Unfortunately (in my view), Bar Counsel did not press the point before the board.
What is interesting is the hearing committee report itself. The two lawyers agree on sanction, finding that automatic reinstatement is in the public interest because Bar Counsel failed to show clear and convincing evidence of a serious doubt regarding fitness to practice. This is the so-called Cater standard, which I criticized in my article on the D.C. disciplinary system. This case shows how this laughably legalistic formulation can be used to frustrate the overarching goal of any disciplinary system, which is protecting the public from unfit lawyers. As I had predicted, it permits the system to justify leniency as a supposed failure of Bar Counsel to meet its burden of proof.
Notably, the non-lawyer is having none of this lawyerese mumbo jumbo and rightly complains about the leniency of the sanction: "Remorse does not, by itself, demonstrate [his] rehabilitation... only that he is aware he did wrong... Any recommended sanction should accurately reflect the seriousness of the offense. Eighteen months does not, in this case, achieve that goal." I suppose one needs to become a lawyer to unlearn such common sense.
A lone voice of reason in the wilderness, as usual, goes unheard. But at least it can now be seen. (Mike Frisch)
Suspension For Living Trust Bait-And-Switch
An Ohio attorney entered into a contract with a Michigan law firm "to market and sell living trusts and other estate-planning services in Ohio." He was paid per referral but "prohibited from offering any financial advice to his clients regarding the funding of the trust." The Michigan firm used direct mail and telephone solicitations to find prospective clients. In one matter, after a couple who had been so solicited agreed to purchase a standard living trust, the attorney gave the client information to the Michigan firm without the clients' knowledge or consent. After a follow up meeting with an agent of the Michigan firm and the lawyer regarding the funding of the trust, the clients became suspicious and filed a bar complaint.
Disciplinary counsel charged 11 violations "stemming from [the lawyer's] business relationship with [the Michigan firm] and his representation of [the clients]." The Ohio Supreme Court suspended the lawyer for one year, with six months stayed. "Respondent was well aware that [the Michigan firm's] funding agents worked on commission, and that their primary objective was to sell insurance. Yet respondent never told the [clients] that they would be subject to an insurance sales pitch...respondent engaged in a number of misrepresentations by omission." He also had violated his duties of confidentiality and to provide independent legal advice, as well as other ethical violations. (Mike Frisch)
The Ohio Supreme Court imposed an indefinite suspension of an attorney who began dating a domestic relations client shortly after he had been retained. The client sought assistance in proceedings to terminate her marriage as well as with a domestic-violence action. He had moved in and lived with the client for about five months prior to the client's reconciliation with her husband. Although the lawyer claimed to have withdrawn from the representation, "he continued to assist her in secret." The bar grievance was filed by the client and her husband.
In addition to the improper relationship("We have consistently disapproved of lawyers engaging in sexual conduct with clients where the sexual relationship arises from and occurs during the attorney-client relationship"), the court considered the lawyer's submission of false evidence in the bar case as an aggravating factor. (Mike Frisch)
The Power Of Bar Counsel
The Maryland Court of Appeals suspended a lawyer in 1998 and ordered reinstatement in 2006. Bar Counsel, who neither supported or opposed reinstatement, advised the court of pending litigation involving the petitioner (which is what a lawyer seeking reinstatement is called). Shortly after the order, opposing counsel in the litigation filed a motion to strike (meaning, I assume, vacate) the order granting reinstatement. Counsel alleged that Bar Counsel did not communicate with him about representations that the litigation likely would settle.
The court held that only Bar Counsel may file a motion to vacate a reinstatement order. "This is logical and appropriate...[as such motions are part] of this Court's regulation of the legal profession, specifically, its regulation and oversight of attorney discipline, in which Bar Counsel necessarily plays a critical and extensive role. As a result, Bar Counsel has been charged with duties and given power necessary, to perform that role." If there is a basis to proceed against the lawyer, it is Bar Counsel who must investigate and determine whether action against the reinstated attorney is appropriate. (Mike Frisch)
As we had predicted, the District of Columbia Court of Appeals entered an order today disbarring Scooter Libby. Because his appeal from the criminal conviction had been dismissed, "this disciplinary matter is ripe for final action." Disbarment is the only sanction the court may impose when a member of the Bar is convicted of a crime involving moral turpitude per D.C. Code section 11-2503(a) as interpreted by the court in In re Colson. Libby's convictions for obstruction of justice and perjury involved moral turpitude per se. Thus, disbarment is imposed without any evidentiary hearing. (Mike Frisch)
March 19, 2008
In a case of first impression, the Supreme Court of Missouri held that the proper venue for a legal malpractice claim is in the circuit court where the underlying action could have been filed. The case involved an attorney's alleged failure to file a wrongful death action on behalf of the heirs of a person killed in a workplace accident. The lawyer had sought a change of venue to the county where he maintained his law practice, claiming that was where the plaintiffs were "first injured."
According to the court "the injury sought to be redressed by the malpractice action is the financial loss from the lack of an enforceable judgment. That judgment could have been rendered in either the circuit court of the City of St. Louis or in the circuit court of St. Louis County. Under the facts of this case and the plain language of the venue statutes, Plaintiffs were 'first injured' in those venues in which the wrongful death action could have been filed. A trial court is without discretion to disturb a plaintiff's choice of proper venue. Therefore, the circuit court abused its discretion in ordering the transfer of Plaintiffs' case from the circuit court of the City of St. Louis, which was proper venue for Plaintiffs' legal malpractice action." (Mike Frisch)
Substantial Evidence Of Rehabilitation
The Oklahoma Supreme Court today granted the petition for reinstatement of an attorney who had resigned pending disciplinary proceedings in 1999. The misconduct that had led to the resignation was "of a very serious nature" and included neglect, misrepresentation, charging excessive fees and misuse of client funds that had resulted in the client's arrest. The attorney's backgound was described by the court:
"From the time Mr. Pate was admitted to the Oklahoma Bar Association in 1991 until he resigned in 1999, he lived in Poteau, Oklahoma, and practiced law there, although for a period of approximately ten months, he served as Assistant District Attorney in Pushmataha County. Mr. Pate's family is well known in the LeFlore County community and their name has long been associated with the local practice of law; his father was a judge there as well as a practicing attorney, and his uncle was a practicing lawyer there. Mr. Pate was a general practitioner, well known for willingly representing economically deprived clients in matters which were of great importance to them but offered minimal compensation to counsel."
As to the circumstances of the misconduct and his efforts to rehabilitate:
"Mr. Pate testified that his failure to properly attend to the affairs of his clients in a lawful and professional manner resulted from long-term substance abuse problems. Conceding that he was an alcoholic and a drug addict, Mr. Pate was very open and honest and with the panel in his testimony. He described in detail his life before and after his resignation and offered no excuses or rationalizations for his behavior. He accepted all responsibility for his failings, professional and personal, and their consequences. He did not minimize the seriousness of his offenses, and he fully acknowledged and expressed remorse for the disfavor and disrepute his actions had cast upon his profession and the judiciary.
Mr. Pate told the panel he now recognizes he was about the last person in LeFlore County to know that he was addicted to drugs, that it was causing significant problems in his life and that he was in trouble. His family and friends, attorneys and judges in Le Flore County, the local bar association and the townspeople had long been aware that he was impaired. By April 30, 1999, when he finally realized he was out of control and came to the Bar Center in Oklahoma City to sign his resignation in the General Counsel's office, friends and clergy had already tried interventions, the local bar association was taking action to deal with problems he was creating and local lawyers were taking steps to shift his client load away from him.
Very shortly after his resignation, he entered a drug and alcohol treatment program in Arkansas where he spent seven days as an inpatient and three weeks as an outpatient. This initial treatment was not successful. Mr. Pate related that he was not able to stay off drug and alcohol for more than a few weeks at a time. By October 1999, he was beginning to do fairly well and got a job researching title and land records, but he was still drinking. Things did not go well after that. His wife left him when she found out he was not staying sober. He did not go back to work and he moved in with his parents.
In October 2000, Mr. Pate became fully dedicated to recovery. At first he was simply attending Narcotics Anonymous meetings in Arkansas and Poteau, but very soon he started chairing their meetings and became very involved in serving the organization on the regional level as well. He became area chairperson and began putting together workshops aimed at coordinating meetings with the new drug court groups to help them learn more about recovery and enable them to have people with 'clean time' of long duration at their meetings. This has been the focus of his service in recovery.
Mr. Pate continues to attend many meetings, serving as a speaker at meetings and facilitating workshops. He has become involved with the Lawyers Helping Lawyers Committee and provides the director with regular weekly reports of his activities and meetings attended. He plans to remain an active part of that group if he is readmitted. He explained that his personal recovery is to go to as many meetings as possible and work with his sponsors to complete his twelve steps of recovery. He tries to work through the steps every year to keep refreshed. Mr. Pate has also attended Alcoholics Anonymous meetings on a regular basis."
Further, the attorney is "employed as a supervisory child-care worker in a home for adolescent boys" and made full restitution. If ever there were a case where reinstatement seems fully justified, this would appear to be it. (Mike Frisch)
I Cry in My Room When Mommy and Daddy Fight
In the never-ending (and never-interesting, to the rest of us) football rivalry between Ohio State and Michigan, today's Pyhrric victory belongs to the Buckeyes: top-rated high school QB Terrelle Pryor chose OSU over Michigan. This will no doubt please Nancy Rapoport and disappoint Jeff Lipshaw, both fanatics, respectively. [Alan Childress]
New Rules Soon Effective for Federal Judicial Conduct and Disability
The Judicial Conference of the United States has approved the first-ever binding, nationwide set of rules for handling conduct and disability complaints against federal judges. The new 29 Rules for Judicial Conduct and Judicial Disability Proceedings, which take effect in mid-April, are authorized under the Judicial Conduct and Disability Act of 1980 that allows any person to file a complaint alleging that a federal judge has engaged in conduct "prejudicial to the effective and expeditious administration of the business of the courts." The statute also permits the filing of a complaint relating to a judge's inability to perform his or her duties because of "mental or physical disability."
Joe also links a PDF file of the Judicial Conference's press release and the complete text of the rules. [Alan Childress]
Macey-Dare on Litigation Costs, Settlements, and Game Theory
Posted by Jeff Lipshaw
Rupert Macey-Dare (St. Cross College, Oxford) has posted Litigation Cost Strategies, Settlement Offers and Game Theory on SSRN. Here's the abstract:
Starting with a simple economic model of the value of civil litigation from each side's perspective, this paper analyses a wide range of potential litigation cost strategies, settlement offers and negotiations, together with relevant applications and insights from game theory. Specific issues examined include: optimal settlement agreements, optimal settlement timing, optimal choice of lawyers; principal-agent problems aligning lawyer cost incentives; optimal client-lawyer contracts; "Conditional Fee Agreements" (CFAs); success rules and size of success premia; the exploitation and mitigation of liquidity and bankruptcy constraints; impact of collateral, "Security for Costs" and "Freezing Orders"; optimal "Part 36 Offers"; public and "without prejudice" offers; fixed rate and state-contingent offers; the role of mediation and alternative dispute resolution (ADR); the effect of litigant group size, co-ordination and class actions; rationale for confidential no-liability settlement agreements; effects of legal aid; time-value to trial and optionality of news; the impact of the "Law of Costs"; optimal trial cost applications and requests for "leave to appeal". Both familiar and paradoxical new results are confirmed by the analysis
March 19, 2008 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack
The Georgia Supreme Court held that the failure of defense counsel to object to improper hearsay testimony amounted to ineffective assistance of counsel and reversed a malice murder conviction. The evidence at issue came from the state's firearms examiner, who testified about what she had been told by a "technical representative" of a holster manufacturer. Although counsel had objected to follow up questions, no objection had been raised to the first hearsay statement. "[T]he testimony was inadmissible hearsay. An expert may not give an opinion that is based entirely on hearsay reports, knowledge, or opinions of other experts." The court noted that the state's case was not an overwhelming one, as there had been two prior hung juries. Also, the key witness was a crack addict. A dissent would find that any error was insufficiently prejudicial to require reversal. (Mike Frisch)