Wednesday, March 19, 2008
District of Columbia v. Heller: The Elevator Speech as Part of the Lawyer's Repertoire in Oral Argument and Other Venues
Posted by Jeff Lipshaw
Last night, the Center for Advanced Legal Studies at Suffolk Law School and the Entrepreneur's Forum of the Stanford Club of New England co-sponsored a program on the art of the elevator speech.
The elevator speech is the commonly-used shorthand for a talk, usually no more than thirty to sixty seconds (i.e. the time you might spend with someone in an elevator), in which an aspiring entrepreneur conveys the gist of his or her new and eminently investment-worthy idea to a venture capitalist. We held a well-attended gathering in which a panel discussed the attributes of such talks, and the participants workshopped their own.
My particular contribution (in addition to the fact that I used to be involved in representing clients in the entrepreneurship/venture capital arena) was to emphasize the elevator speech as part of the repertoire of both practicing and academic lawyers. Anyone who has been asked to describe a research agenda at the AALS meat market has probably given an elevator speech, as has any professor who is asked to describe the thesis of a new article. As a practitioner, I once gave an elevator speech at the counter of the Michigan Corporations and Securities Bureau, trying to persuade the clerk to accept for filing an unusual amendment to the corporate charter of a college, by which we would complete the merger of one institution into another.
Not unrelatedly, I had been helping some of our students prep for a securities law moot court competition a couple weeks ago, and I used the idea of the elevator speech as an analog for the opening thirty to sixty seconds of an oral argument, the time when you are least likely to be interrupted by the court. If you haven't used that time to express the thesis why your side ought to win (or, at least, make your position clear), you have probably wasted it. (In my strange and somewhat ADHD-addled career, I've also argued cases in the U.S. Sixth Circuit, the Michigan Supreme Court, and the Michigan Court of Appeals.)
So I was curious, the morning after the oral arguments in District of Columbia v. Heller, to see just how well the oralists took the advice I never had a chance to give them. What follows is the portion of the argument that follows "may it please the Court" and precedes the first substantive interruption by one of the Justices.
Here is Walter Dellinger's opening gambit for the District of Columbia:
The Second Amendment was a direct response to concern over Article I, Section 8 of the Constitution, which gave the new national Congress the surprising, perhaps even the shocking, power to organize, arm, and presumably disarm the State militias. What is at issue this morning is the scope and nature of the individual right protected by the resulting amendment and the first text to consider is the phrase protecting a right to keep and bear arms. In the debates over the Second Amendment, every person who used the phrase "bear arms" used it to refer to the use of arms in connection with militia service and when Madison introduced the amendment in the first Congress, he exactly equated the phrase "bearing arms" with, quote, "rendering military service." We know this from the inclusion in his draft of a clause exempting those with religious scruples. His clause says "The right of the people to keep and bear arms shall not be infringed, a well armed and well regulated militia being the best security of a free country, but no person religiously scrupulous of bearing arms shall be compelled to render military service in person." And even if the language of keeping and bearing arms were ambiguous, the amendment's first clause confirms that the right is militia-related.
Here is Solicitor General Paul Clement's opening for the United States:
The Second Amendment to the Constitution, as its text indicates, guarantees an individual right that does not depend on eligibility for or service in the militia.
Finally, here is Alan Gura for the respondent gun owners:
All 50 states allow law-abiding citizens to defend themselves and their families in their homes with ordinary functional firearms including handguns. Now I'd like to respond to one point that was raised related by the General --
JUSTICE SCALIA: Talk a little slower; I'm not following you.
MR. GURA: Okay. I'd like to respond --certainly, Justice Scalia. I'd like to respond to the point about the -- the District of Columbia's position over the years with respect to the functional firearms ban. The Petitioners have had two opportunities to urge courts to adopt this so-called self-defense exception construing the exception. The first option came in 1978 in McIntosh versus Washington where, the petitioners urged the Court of Appeals of the District of Columbia to uphold the law because it was irrational in their view to prohibit self-defense in the home with firearms. They deemed it to be too dangerous, and this was a legitimate policy choice of the City Council and they actually prevailed in that view.
The second opportunity that the Petitioners had to urge this sort of self-defense construction was actually in this case in the district court. We had a motion for summary judgment and we made certain factual allegations in this motion and on page 70a of the joint appendix we see portions of our statement of undisputed material facts. Fact number 29, which was conceded by the District of Columbia, reads: The defendants prohibit the possession of lawfully owned firearms for self-defense within the home, even in instances when self-defense would be lawful by other means under District of Columbia law. The citation for that is functional firearms ban and that point was conceded.
Certainly the idea that people can guess as to when it is that they might render the firearm operational is -- is not a one that the Court should accept, because a person who hears a noise, a person who perhaps is living in a neighborhood where there has been a spate of violent crimes, has no idea of when the District of Columbia would permit her to render the firearm operational, and in fact there is a prosecution history not under this specific provision, but certainly other under gun prohibition -- uh -- laws that we are challenging here today to prosecute people for the possession or for the carrying of a prohibited firearm even when the police ruled the shooting has been lawful self-defense.
As I read the transcripts, Mr. Dellinger and General Clement took my unsolicited and ungiven advice; Mr. Gura did not.
The conduct of a prominent Maryland lawyer/lobbyist is the subject of an opinion issued today by the Maryland Court of Appeals. The seven judges who participated in the decision included five retired, specially assigned judges. The majority opinion quotes a famous line from the movie Cool Hand Luke, suggesting that the various judges "have here..a failure to [completely agree on reasoning]." The issue in the case involves sanctions imposed by the State Ethics Commission as a result of a prohibited contingency fee for lobbying activities. Although "Maryland law has long prohibited contingency fees for lobbying," there were no sanctions for a violation until the General Assembly adopted legislation effective November 1, 2001. While the fee arrangement was reduced to writing prior to that date, the services continued after. The majority rejected the claim that the statute had been improperly applied retroactively. However, the matter was remanded based on the majority's conclusion that the ethics commission had missapplied the missing-witness rule.
Disclosure: I handled the D.C. disbarment of this lawyer based on his conviction for mail fraud. (Mike Frisch)
Tuesday, March 18, 2008
An attorney was disbarred in 1988 for mail and securities fraud convictions as a result of "his misappropriation of confidential securities information from his former law firm employer, and subsequent sharing of the information with friends and relatives who traded in securities making approximately $1.5 million in illegal profits." He was reinstated in 2003.
After the reinstatement, the attorney was subject to disciplinary charges of dishonesty and false statement in the application for bar readmission. A referee sustained 17 of the 18 charges of misconduct and recommended that his license be "revoked, rather than disbarred, because it was fraudulently obtained in the first place." A Hearing Panel proposed either disbarment or revocation. The New York Appellate Division for the First Judicial Department chose disbarment:
"...we believe the appropriate sanction is disbarment, not revocation. To be sure, it is logically appealing to revoke a license where an attorney only gained admission based on fraud. Indeed, we have chosen that path on several occasions. However, we have also disbarred attorneys who gained admission only to be later found to have perpetrated a fraud on the court. Under these circumstances, disbarment is the appropriate sanction, as respondent has engaged in a pervasive pattern of affirmative misrepresentations and failed to fully accept responsibility for his serious misconduct." (citations omitted)
I dealt with this issue in a D.C. case where a lawyer named Regis Toomey (not the actor) got admitted in the District of Columbia but had neglected to disclose that he had been disbarred in Texas. The D.C. Court of Appeals ordered revocation. (Mike Frisch)
The California Bar is accepting written comments to a proposed rule requiring malpractice insurance. The comments must be filed on or before March 17. The announcement from the Bar's web page, with links to the proposal, may be found here. (Mike Frisch)
In a bar discipline case where the attorney had been charged with breach of fiduciary duty, conflict of interest, "giving something of value to a judge without charging any fee" and not disclosing the gift to opposing counsel and neglect of a probate estate, the Illinois Review Board rejected the Administrator's argument for a two-year suspension and recommended a suspension of six months. The lawyer had been admitted in 1967 and was a county public defender in addition to his private practice.
The alleged misconduct involved a client who sought a will and to forgive a debt owed to her by a wealthy family that included a judge before whom the attorney regularly practiced. The attorney also represented the estate of the judge's father. He drafted and the client executed a document forgiving the debt. The conflict of interest formed the basis of one charge. The hearing board had found no breach of duty or dishonesty in the lawyer's dealings with the client.
The lawyer or his employee also prepared the judge's personal and business federal income tax forms from 1996 to 2000 at no fee. The hearing board found no ethical violation for this conduct or in the failure to disclose this service to opposing counsel. Finally, the hearing board found that the another had neglected another estate matter.
The review board found that the debt cancellation matter was a breach of fiduciary duty to the client:
"it is undisputed for purposes of review that Cutright [the lawyer] had conflicting loyalties that impacted his ability to make appropriate inquiries of Hayden and advise her in a good faith manner. As part of his fiduciary duty to Hayden [the client], Cutright was required to avoid conflicts of interest and give Hayden his undivided loyalty. The Hearing Board found that he did not do so. Thus, it follows that Cutright breached his fiduciary duty to Hayden.
The Hearing Board’s finding that Cutright was following Hayden’s instructions in canceling the debt does not alter our conclusion. Blind obedience does not satisfy one’s fiduciary obligation. Cutright was required to make a diligent inquiry into Hayden’s financial circumstances, assess her best interests, and advise Hayden of the consequences of her decision. He did not do any of those things."
The review board found that the failure to advise opposing counsel of the free legal services bestowed on the judge did not amount to dishonest conduct:
"...the Administrator asserts that Cutright’s 'oblivious' state of mind – as found by the Hearing Board – is 'so careless or reckless' so as to satisfy the scienter requirement because Cutright, like every other attorney in this state, should have known what the Rules of Professional Conduct require.
Despite its specious appeal, the Administrator’s argument fails. While ignorance is no excuse, neither is it a chargeable offense in this context. The analysis must start and end with the finding – unchallenged by the Administrator – that Cutright did not intend to deceive anyone by his omissions."
A dissent would find the breach of fiduciary duty charge "unecessary and entirely redundant." (Mike Frisch)
The North Carolina Court of Appeals affirmed in part and vacated and remanded in part for a new calculation of damages in an action brought by the State Bar seeking reimbursement for funds paid by the Clients' Security Fund "for damages caused by [the lawyer's] conduct." The court rejected a host of claims/defenses brought on behalf of the lawyer, including attacks on the findings of conversion, fraud, and the use of equitable estoppel to prevent assertion of a staute of limitations defense. The court also rejected claims of accord and satisfaction, res judicata, judical estoppel, laches and subrogation.
The lawyer also made a claim that the client should not receive compensatory damages. The court disagreed:
"According to defendant, the Munavallis [the clients] were not eligible for a reimbursement by the Fund because legal liability for the unpaid CD-ROMs is on defendant, not the Munavallis. Defendant argues that since the Munavallis are not liable for the CD-ROMs, they suffered no loss, are not eligible for compensatory damages, and cannot recover double damages under N.C. Gen. Stat. § 84-13. Defendant's argument is meritless. As stated earlier, defendant breached his fiduciary duty to the Munavallis and converted their funds, which caused a loss to the Munavallis, who were then entitled to double damages under N.C. Gen. Stat. § 84-13. Accordingly, we affirm the trial court's award of compensatory damages."
The court remanded based on its conclusion that the trial court improperly awarded interest on punitive damages. (Mike Frisch)
Posted by Jeff Lipshaw
Kudos to Steve Davidoff for his quick post with a link to the Bear Stearns - J.P. Morgan agreement. A couple notes during a quick skim.
1. I didn't realize from the newspaper accounts that it's not a cash deal at $2.00 a share. It's in fact a stock-for-stock deal that pegged $2.00 to the J.P. Morgan stock on an exchange ratio of just over .054 shares of JPM for each share of Bear. So Bear shareholders will continue to ride up or down depending on the markets' reactions generally. (I see JPM is up five percent already today, so that's some cold comfort - the deal is now worth $2.10.)
2. The fairness opinion on the price will come from Lazard Freres. That should be an interesting read.
3. Wachtell represented J.P. Morgan. There are no lawyers listed for Bear.
4. J.P. Morgan can force a shareholder vote even over a "Change in Recommendation" if there is an "Alternative Proposal" that the Bear board must consider in light of its fiduciary obligation. Not surprisingly, a "force the vote" is a win for the acquiring company, as you'd expect here. Obvious, the "asset option" to buy the headquarters, which would survive even an alternative deal is another way to lock down the deal.
5. The Bear directors have the standard continuation of D&O insurance.
6. The deal was reported as being "locked down" in terms of J.P. Morgan's ability to get out. That appears to be true. There is no MAC ("material adverse change") provision as a condition of closing. The representations and warranties are made only as of the date of signing and not as of the closing. The "bring down" certificate as to the continued accuracy of the representations and warranties in the closing conditions applies only to the bare minimum: that JPM is getting pretty much all of the stock, that the deal is authorized, that nobody other than Lazard Freres is a broker, and that Lazard Freres will issue a fairness opinion. It just goes to show how little you need to make a deal when you gotta make a deal!
[UPDATE: Jeff has expanded on these thoughts in this post on Concurring Opinions. --SAC]
The New York Court of Appeals entered an order on its own motion removing a former Nassau County District Judge from office. This link to a post from the Simple Justice blog provides information about the basis for the court's action. (Mike Frisch)
Monday, March 17, 2008
by Thomas Morgan (GW) and Ronald Rotunda (Geo. Mason).
Says West, "The Tenth Edition continues the tradition that has made it a leader in its field using problems to provide an overview of lawyers' professional responsibility."
Posted by Jeff Lipshaw
As noted earlier, Paul Secunda has a new piece posted on SSRN (see below - he's in 9th place right now, but moving quickly up the charts), a light-hearted look at the lateral market for law professor, and how to succeed therein. David Zaring and Gordon Smith over at Conglomerate noted the "success" some of these pieces have in terms of SSRN downloads, and I was curious how much navel-gazing and career-directed stuff actually shows up on SSRN. In a move that demonstrates much of my problem as an empiricist, I went to the SSRN "Top Papers" listing, clicked on the "All-Time" ranking, and proceeded to make my way through page after page, noting where I thought candidates appeared. Unfortunately, at about page 18 (having looked at 1,800 titles), I got bored.
So my top ten "career-enhancement" paper ranking (as measured by SSRN all-time downloads) comes with the following caveats: (a) I arbitrarily decided what fit in the category; (b) I stopped my more rigorous method at papers with about 1,300 downloads; (c) I included papers I recalled seeing before below the 1,300 level, and (d) I included one paper by Mark West at Michigan not because it fell within the career-enhancing category, but I thought it was whimsical. The far and away leader is Thom Brooks (pictured above left) of the Newcastle Law School. Here goes:
If I have left you out in my haste (or boredom), let me know.
Macey-Dare on Restricted Entry To the English Bar (Part of the Legal Profession) by Vocational Training Requirements
Posted by Alan Childress
Rupert Macey-Dare (Oxford [St. Cross College] and the director of Oxford Informatica) has posted to SSRN his article, "'Practicing Certificate Risks' in the Market for Advocacy," as part of the series on developments at the English Bar, and its relationship with the Solicitors' profession. This paper concerns lower entry rates for Barristers (the Bar) in England and Wales. I posted on an earlier paper from his series in this LPB post last June. The abstract to the new paper is:
This paper considers two types of practicing certificate risk, relevant to the Bar of England and Wales, plus related sections of the Neuberger Report 2007.
The first of these risks could be called New barrister practicing certificate risk. This is the risk for a qualified applicant of never gaining the Bar practicing certificate because of restricted supply of preliminary approved pupillages. The paper argues, contrary to the Neuberger Report, that perception of this risk is much more likely to deter potential applicants from minority groups from ever training for the Bar, than any outdated perceptions of stuffiness or snobbery. The Neuberger Report acknowledges that this risk has recently risen to around 75%. Its recommended remedy is to reduce annual BVC graduate production and bring it into line with current annual approved pupillage availability. Acknowledging that a direct numerical cap on BVC numbers could infringe competition law, the Neuberger Report recommends the introduction of a raft of academic improvement measures designed to achieve this reduction in numbers by other indirect means.
The second of these risks could be called Solicitor-transfer practicing certificate risk. This is the risk to established Barristers of BVC graduates excluded from the Bar by unavailability of pupillage, subsequently transferring over to gain their practicing certificates as Solicitors, with special training and interest in advocacy. Given the relative sizes of the two professions and ratio of annual BVC graduate production to annual approved pupillages, this process could quickly lead, if left unchecked, both to a large increase in the overall number of advocates licensed to practice and to a larger number of advocates in the Solicitors than Barristers profession. The risk therefore to the Bar is that it could lose its traditional position as quasi-monopoly supplier of advocacy services in England and Wales, together with any associated monopoly profits. N.B there is no direct discussion of Solicitor-transfer practicing certificate risk in the Neuberger Report. Nevertheless, the BVC graduate reduction measures recommended by the Report are certainly consistent with addressing this risk as well.
A lawyer had previously been suspended in Maryland for escrow account violations including failure to supervise an office assistant (not a lawyer but an authorized signatory of the trust account) who had embezzled approximately $144,000 as a result of inadequate supervision. In a decision filed today by the Maryland Court of Appeals, the court ordered an indefinite suspension with the right to apply for reinstatement after 90 days.
The misconduct? The same problem-- he hired a legal assistant with a prior felony conviction. She stole approximately $124,000 from the trust account. In determining sanction, the court concluded: "We...look to [the attorney's] previous case, where he failed to supervise adequately another, different employee...[he] delegated to [the second employee] the task of dealing with the consequences of the original theft in addition to management of the day-to-day operations of [his]trust account...he failed to correct his funds disbursement system, which allowed [employee two] to steal from him in the same manner that the previous employee had." He had taken remedial measures and placed himself on voluntary inactive status while the second case was pending. (Mke Frisch)
An attorney was convicted of nine counts of mail fraud and two counts of engaging in a monetary transaction in property derived from unlawful activity. The crimes related to his law practice. He was sentenced to a 24 month period of imprisonment that he began serving in November 2003. He was disbarred by the Pennsylvania Supreme Court, with the order made retroactive to 2000. Thus, he was eligible to petition for reinstatement in 2005.
The court recently adopted the recommendation of its Disciplinary Board to reinstate the lawyer. The matter proceeded with a dispatch that would never be possible in the District of Columbia. The hearing committee heard the matter on October 3, 2007 and issued a favorable report within the month. The board approved the committee's favorable recommendation in six weeks. The court took less than three months thereafter to order reinstatement. Disciplnary Counsel did not oppose reinstatement. Thus, the attorney has returned to the bar within three years of his release from prison. (Mike Frisch)
Ethical Duties of Prosecutors in White Collar Cases: The Enron/Skilling Example of the Value of Full Disclosure (or, Here's the Story of a Rule Named Brady)
Posted by Alan Childress
On White Collar Crime Prof Blog, Ellen Podgor has recently posted on the social value (here) and on the ethics rule requirement (here) of full discovery disclosure by prosecutors -- the Brady rule as legal ethics and as applied to white collar prosecutions beyond typical drug cases. The issue arises from allegations in Jeff Skilling's brief that the government did not turn over all of the Fastow notes (initial FBI interviews of Andy Fastow which painted a much more innocent picture than his trial testimony). See also the WSJ article here, unfortunately just a preview. And the Letter of Apology Blog finds the non-disclosure to be "striking" and "troubling," here, with further links to blogging on the issue.
Update : The Skilling Supplemental Brief is also linked in this commentary by Houston blogger-lawyer Tom Kirkendall.
Sunday, March 16, 2008
The Louisiana Supreme Court accepted a proposed disposition for a six-month suspension, stayed in its entirety in favor a one year probation, in a case where the lawyer had falsely notarized a client's signature to a document and filed the document in court. I assume that is more to this story than reflected in the court's order. (Mike Frisch)
A recent article in the New York Times cites to expert opinions that term the possibility of professional discipline against soon-to-be former New York Governor Eliot Spitzer "unlikely." In my view, the commentary overlooks the possibility of a felony conviction. If there is a felony conviction in federal court for an offense that would not constitute a felony under New York state law, the conviction would not mean that the convicted attorney would "cease to be an attorney" under New York Judiciary Law, section 90(4)(a). However, any felony conviction is deemed a "serious crime" and results in suspension pursuant to section (4)(f). The appellate division could thereafter set the suspension aside for good cause "when it appears consistent with the maintenance of the integrity and honor of the profession, the protection of the public and the interest of justice." Once a conviction is final, the suspended attorney is then directed to "show cause why a final order of suspension, censure or removal from office should not be imposed" under section (4)(g).
Thus, if there is a conviction of a federal felony offense, some form of sanction would be more likely than not. (Mike Frisch)
In a case where a suspended attorney had practiced law in violation of an earlier suspension, the Pennsylvania Supreme Court ordered a suspension of two years. The court appended the opinion of the Disciplinary Board explaining why the attorney's depression and ADHD was not considered as a mitigating factor. The attorney's expert had opined that "lack of truthfulness and disregard for the truth are not symptoms of depression." Further, the expert was not aware of the particulars of the misconduct; thus, the evidence did not meet the standards for establishing mitigation based on a medical condition as articulated in the court's seminal Braun decision.
This strikes me as the correct result as I have never understood court decisions (and they are legion) that find a casual connection between depression and acts of dishonesty. (Mike Frisch)
An attorney who had converted estate funds, made false statements, acted dishonestly and compounded the violations by failure to participate in the disciplinary process was suspended for two years by the Pennsylvania Supreme Court. The Disciplinary Board majority had proposed a suspension of a year and a day. The court adopted the sanction that had been recommended in a Board dissent. (Mike Frisch)