March 25, 2008
Is "thinking like a lawyer" similar to the "security mindset"?
Michael Froomkin (Miami) in this post makes the point -- yes, we think like paranoid security engineers -- in a humorous way. Asking "whether this sort of demented worldview, one in which you shake things to see how they break, can be taught, I think, 'Hell, yes: I’ve been doing it for years.' ” I particularly like the subversive idea he quotes of how to use SmartWater ownership markers. [Alan Childress]
The Paperless Office
In a recent ethics opinion, the Alaska Bar Association concludes that a lawyer may maintain copies of documents in electronic format, but may not destroy or alter "original" client documents:
"Simply because a lawyer may keep electronic records of his or her business records, that does not mean the lawyer is free to discard 'original' records. Rule 1.15 requires the lawyer to safeguard and hold a client's property separate from the lawyer's own property. Thus, for example, if a lawyer scans client documents for electronic document management, that does relieve the lawyer from the obligation to maintain and safeguard the client's property. Further, the Uniform Electronic Transactions Act recognizes that certain types of documents must be maintained in original form. These include wills, testamentary trusts, and certain documents created under the Uniform Commercial Code. In the Committee's view, the Alaska Rules of Professional Conduct...permit lawyers to maintain any records required to be kept pursuant to Rules 1.4, 1.15 and 7.2 in electronic format. The lawyer must still maintain in original form any client documents entrusted for safekeeping." (Mike Frisch)
Not Law But Tax
Here's a description of what sounds like an interesting bar discipline matter taken from the web page of the Virginia State Bar. Unfortunately, there is no link to the decision. If there is an analysis of the distinction between legal and tax services for purposes of application of the rules regulating lawyers, it would be worth a look.
VSB Docket Nos. 03-051-0361, 04-051-0859, and 05-051-3855
Fairfax County Circuit Court Case No. 2006-10928
On March 19, 2008, a three-judge panel of the Fairfax County Circuit Court imposed a public admonition with terms on Ernest Kenneth Wall. Mr. Wall violated the Rule of Professional Conduct that forbids misleading information in public communications concerning a lawyer's services. Mr. Wall must make revisions to solicitation letters, contracts, and website contents that he uses in his business, which provides tax services but not legal services. This was an agreed disposition of misconduct charges against Mr. Wall. (Mike Frisch)
On March 19, 2008, a three-judge panel of the Fairfax County Circuit Court imposed a public admonition with terms on Ernest Kenneth Wall. Mr. Wall violated the Rule of Professional Conduct that forbids misleading information in public communications concerning a lawyer's services. Mr. Wall must make revisions to solicitation letters, contracts, and website contents that he uses in his business, which provides tax services but not legal services. This was an agreed disposition of misconduct charges against Mr. Wall.
Experiment on My MacPosted by Jeff Lipshaw This is an experimental post, because I have, at the recommendation of my son-in-law, IT guru Simon Pride, just downloaded a desktop blog manager called MarsEdit. It seems to work just fine with TypePad, which is the blogging program of choice for the Caron Law Professor Blog empire.It also works fine with Blogger, but I'm having a hard type getting it to accept a password in MoveableType (used over at Concurring Opinions and one of the most difficult programs I've ever encountered!)
Keeping It Simple
The Billings Gazette reports that the Montana Supreme Court has adopted rules that permit non-lawyers to act as counsel before the Montana Water Court:
"The state Supreme Court issued new rules Monday for the Montana Water Court that will allow most of those involved in disputes over water rights to navigate the process without hiring a lawyer.
The order clarifies under what circumstances nonlawyers can represent family corporations, trusts, partnerships, companies and other common holders of water rights.
The Montana Supreme Court had been considering a rule that would force such entities to hire a lawyer, consistent with the state's laws on the unauthorized practice of law. The Water Court has had a decades-old tradition of not enforcing those laws, to keep the process simple."
Hat tip to the web page of the North Dakota Supreme Court (in my view, one of the very best state court web pages) for alerting us to this development. (Mike Frisch)
The Florida Judicial Ethics Advisory Committee opines that a judge must be recused in a matter where his former fiance is an expert CPA witness. The judge also is obligated to disclose that the former fiance's CPA firm rents office space from a partnership in which the judge is a general partner. the relationship had ended 2 1/2 years ago and they "do not currently have a social relationship." (Mike Frisch)
The Louisiana Supreme Court granted conditional admission to a bar applicant subject to a three-year probationary period. The admitted lawyer must demonstrate during the probationary period that he is making a good faith effort to satisfy his financial obligations as well as comply with the ethical rules governing Louisiana lawyers. (Mike Frisch)
Corporation Must Have Counsel
The Illinois ARDC recently filed a complaint alleging that an attorney, among other things, allowed a corporate client to use his name as counsel in litigation that was being conducted pro se. It is alleged that "by allowing the client to prepare, file and sign [the lawyer's] name to pleadings in relation to the trademark infringement matter [he] was aiding [the client] in circumventing the court's licensing requirement." The charge that the litigation was conducted by the client or someone acting at the client's direction is set forth in detail in the complaint. The lawyer is also charged with dishonesty, signing pleadings without making reasonable inquiry into the factual contentions and making a false statement of material fact or law to a tribunal. (Mike Frisch)
March 24, 2008
Update on Federal Judicial Rules and Complaints: User Comments Wanted
We posted this announcement last week on links to info on the new proposed rules and procedures, for use in federal courts, for handling conduct complaints and claims of disability for federal judges. Here is a follow-up post by Joe Hodnicki on Law Librarian Blog that links to the place for Public Comments on the proposed revisions. He also links a PDF of before-and-after for the revisions. The deadline for comments is April 18. [Alan Childress]
Suit For Fees Dismissed
The Superior Court of New Jersey Appellate Division affirmed an order dismissing a complaint for unpaid legal fees because the law firm failed to give thirty-day Pre-Action Notice pursuant to New Jersey Rule 1:20A-6. The failure to provide the required notice "prohibited the initiation of this litigation." The firm had represented the client in two matters, one in Pennsylvania and the other in New Jersey. The Pennsylvania court entered judgment against the client when no one appeared as counsel for the trial. The client discharged the firm and hired new counsel for the New Jersey case. The Pennsylvania judgment was reversed as a result of the plaintiff law firm's efforts.
The rule and notice at issue gives the New Jersey "District Fee Committee jurisdiction to determine fee disputes between clients and attorneys by final and binding arbitration." The trial judge held that the law firm delayed filing its complaint "until the statute of limitations made it impossible to give Pre-Action Notice within the period of time mandated by the rule...To permit a [law firm plaintiff] to avoid the [notice] rule simply because a defendant opts not to participate in fee arbitration would render the rule nugatory." (Mike Frisch)
Disbarment Proposed For Fugitive Attorney
An Illinois Hearing Board recently recommended disbarment of attorney who "is believed to be living in Costa Rica" and has not been heard from since the spring of 2006. He was arrested for a series of alcohol-related driving offenses. He also had "dissipated marital assets, reneged on his financial obligations with respect to his children, and is subject to two warrants for his arrest." While he had acknowledged a problem with alcohol, no evidence was presented suggesting he had done anything about it.
As to sanction:
"While Respondent’s misconduct did not relate to any client matters and he has no previous orders of discipline, we believe his failure to conform his actions to orders of the court, to the laws of this State, and to the Rules of Professional Conduct seriously demeans the integrity of the legal profession and poses a risk of significant harm to the public should he attempt to resume his practice in Illinois. His flight in the face of pending charges, failure to register with the Commission, and untreated alcohol addiction and depression further indicate his lack of fitness to practice law." (Mike Frisch)
Big Mac Attack
Posted by Jeff Lipshaw
I don't do product plugs, but I consider this a public service. My three-year-old laptop Dell laptop, which has served me well from corporate life through three schools and lots of travel, was showing motherboard wear (the on-off button was balky), and it was getting kind of RAM and hard drive capacity obsolete. Both my son and my son-in-law (who directs all the personal computing IT for Hunter College) are Macintosh aficionados, and both have MacBooks. We had an IMac (the old version that showed up in a lot of schools) that came with OS 9, and I hated it.
But I read Walter Mossberg in the New York Times, and listen to my children, and the thing that sold me was the video iChat feature, with which I can conference with Matthew from Ann Arbor, so I took the plunge. I bought the MacBook with 2.4 Ghz and 2GB RAM and the 160 GB hard drive (not the MacBook Air that Steve Jobs is holding.)
It does take a little effort to master a new operating system, but it's worth it, in my view. This is just a simpler way to engage with the virtual world. I am reminded of this frequently by the RSS feed function in Mail, the e-mail program, which is just the best I've encountered. The RSS headlines show up in your e-mail like e-mail message headers, and you can flip through them or delete them in a heartbeat.
Here are some suggestions if you are considering making the switch:
1. The book "Switching to the Mac" Leopard edition by David Pogue is good.
2. Don't use the Symantec Norton Antivirus. There are better ones out there.
3. A program called Missing Sync allows you to sync with Windows Mobile (I have a Motorola Q.)
4. A program called O2M from www.littlemachines.com that costs $10 is great for transferring all your e-mail files.
5. Microsoft Office for Mac is available. It is out in a new version (2008). This is the only glitch I have encountered so far. For some reason, the "PRINT" command is not showing up in my file menu in Word, and so I don't get the option to select pages. I suspect I got a bad CD, but I'm checking into it. My kids insist that the Apple iWorks, which is Pages for word processing and Keynotes for presentations are better than Office, but I'm still a troglodyte on that. (You can convert a Pages document to Word if you send it to somebody else.) UPDATE: we figured out how to deal with the PRINT issue. For some weird reason, it doesn't open in the file menu, but if you have the cursor anywhere in the document and click Command P, it opens the print dialog box. Also here's a new one. I have a neat little HP LaserJet 1020 which doesn't want to work with a Mac. Apparently there are solutions on the internet, but I haven't gotten to them yet.
6. Be careful if you have Windows remembering your passwords, and you don't remember them. I have already done the Annie Hall thing of forgetting my mantra a couple times.
7. I'm now using the Safari browser, which is the Apple version. Occasionally you run into sites (like the Suffolk Law course management site!) that won't work, so you need to have Firefox or Explorer running.
8. I'm just now doing my first post in Safari on TypePad, and it looks like it doesn't completely recognize the program. The WYSIWYG feature doesn't seem to be here, and it is a little balky on putting in HTML commands automatically. (It's definitely a Safari thing because now I'm over on Firefox and it works. But Firefox operates a lot more slowly than Safari.)
Let me know if you want any more advice!
March 23, 2008
Judicial Censure with Concurring And Dissenting Views
The New York State Commission on Judicial Conduct censured a justice of the Queen's County Supreme Court based on a number of instances of improper conduct. In medical malpractice case, his 'bullying tactics were directed towards an attorney who had been sent by his firm to request an adjournment. In another case, he "granted an adjournment of nearly three months in an eviction action for a punitive retaliatory purpose." He also failed to disclose his relationship with an attorney in a matter before him. The attorney had represented (and the judge had paid the fee) his sister and given the judge baseball tickets.
The commission majority concluded: that the judge "engaged in conduct demonstrating insensitivity to the high ethical standards required of judges. Every judge is required to be an exemplar of dignity and patience in presiding over disputes."
A concurring opinion would find some but not all of the alleged misconduct, asking a question that has often occurred to any trial lawyer: "When does a judge's imperious and arrogant behavior cross the line from judicial independence into the realm of misconduct that merits removal? Here, the concurring member would find that the judge did not cross that line in forcing the medical malpractice claim to trial or in delaying resolution of the eviction matter.
A dissent by Member Coffey would find that censure is an insufficient sanction: "The man who appeared before us at oral argument was a far different individual from the one who presented himself at the hearing and investigative appearance. Personally unimpressed and believing that the majority of the charges against respondent were serious and proven, I vote to remove him. I am deeply troubled by respondent's testimony at the hearing, which was evasive and inconsistent, and I am unpersuaded that he will modify his conduct in the future."
These commission reports have been quite interesting of late, with spirited disagreement concerning both findings of misconduct and appropriate sanction. (Mike Frisch)
In Real Estate, Beware the Fraudulent Seller, Too
This post from Calculated Risk dissects sloppy journalistic reporting on the housing and loan crises, and (among many insights) wonders -- in the WaPo story My House. My Dream. It Was An Illusion. -- why there's little investigation of the ethics of predatory selling as well. (HatTip to discourse.net.) The author encourages investigative reporters to "get ahead of the curve" on unethical selling, not just post mortems of lender and sales scams. "Nobody wants to have to report on 'foreclosure avoidance scams' or 'subject to' ripoffs after the fact, like we're only now reporting on predatory lending and predatory RE sales practices after the fact."
It is the kind of close examination of business reporting that Jeff, and hopefully LPB readers, will appreciate. The blog also has hundreds of good comments to the post. [Alan Childress]
Four More Years
An attorney who was suspended for one year in 2006 was suspended for a consecutive period of four years as a result of a consent disposition approved by the Pennsylvania Supreme Court. The original discipline was imposed in connection with the misappropriation of fees due to the attorney's law firm. The misconduct at issue here came in the wake of the criminal and bar discipline investigations. The attorney filed an application to practice before the United States Patent & Trademark Office. He made a series of false and misleading statements in the application process, at first not disclosing and later giving misleading answers about the matter. He did pass the PTO registration exam. (Mike Frisch)