April 12, 2008
Maybe a Little Meta-ethics Wouldn't be Such a Bad Thing. . .Posted by Jeff Lipshaw That was nice of Alan, and I too recommend Brad Wendel's post on the subject it most precisely dissects - when does a piece of legal advice stray so far from a description of what the law could be so as to reflect on the advice giver's competence as a lawyer, apart from her political views? American patience with "meta" anything went out the window when, in his half-drunken stupor, Humphrey Bogart mocked Ingrid Bergman's explanation why she stood him up at the train in Paris, beginning with the slurred words "I meta man once..." But Brad's assessment is exactly the kind of thinking about thinking that, in its process rather than its conclusion, as far as I can tell, is the only common denominator among all those reasonably ethical people who aren't at the far ends of the bell curve. I've been writing about this for a long time. In many ways, it's the hardest question out there because it hasn't been resolved in the several thousand years people have been thinking about the source of ethics. Every resolution depends ultimately, whether the thinker believes it or not, on a kind of faith, whether at one extreme, that the idea of the right comes from some transcendental source, or at the other, a la Joshua Greene, that it is only a matter of time until we discover that every moral choice is really just a naturalistic pre-determined operation of our biological wiring. Maybe I'm just a glass-half-full kinda guy, but a good dose of reflective equilibrium about the source of the good and the right, taken with a couple vitamin C pills and some chicken soup, in the midst of moral decision-making that goes on for more than a couple seconds, couldn't hurt. Even if it doesn't change the outcome, it provides time for either the patient or the doctor to supply a courage enema.
April 11, 2008
For the second anniversary, isn't it liquid paper?
Posted by Alan Childress
Two years ago, actually on April 8, I finally met Jeff face-to-face for the first time (and for that matter, Alene as well). A month before that, I met Mike at Georgetown while I was attending a conference on critical theory. Both had an infectious enthusiasm apparent from those first meetings (Alene too). I just wanted to say I am glad to be blogeagues of theirs. Thanks. Also glad they have not approached Cal professor John Yoo to be an ethics editor here as part of some coup to replace me. As far as I know. (On the larger matter of the trouble with Yoo, btw, I think Brad Wendel has it right.)
What is the Average MPRE Score and What Percentage Passes? ... And Where Does Your Score Fall?
[The MPRE is required in most jurisdictions before admission to the bar, and each state mandates its own passing score, usually between 79 and 86, out of a scaled 150 possible. Jeff posted last year on some useful observations on the exam process, and also mused on the numerical realities of it -- with helpful comments by Bill Henderson of IU. Following up on that, we have a guest-post from John McSweeny, Ph.D., a psych professor in the med school of the University of Toledo with expertise in stats. By night, he is also a UT law student and a recent taker (and passer) of the MPRE. Jeff reports that John's findings as reported below are in line with how Bill Henderson later explained it last year to Jeff on a cocktail napkin [how all great teaching is done]. I thought our readers and MPRE takers would want to see these numbers and John's observations. -- Alan Childress]
background in statistics and psychometric methods, I was curious about MPRE scores and what they meant, including where certain scores fell in the distribution of scores from all
of the candidates who took the test. Accordingly, I contacted the American
College Testing program (ACT), which developed the test, but they wouldn't tell
me anything beyond what was on the website, i.e., that the range was 50 to 150
and the mean [average] was 100. Of course, this irritated
me to no end and launched me on a quest to find out the information I
[UPDATE: Two follow-up posts here and here discuss the curve and numbers with more detail, link to state-by-state minimum scores (including news on NY and California), and note an article written by the head of number crunching for the NCBE about the exam. Plus more from John to follow in this post...]
Balancing Sanction Factors
The New York Appellate Division for the Second Judicial Department imposed a two-year suspension with permission to seek reinstatement no sooner than six months prior to the completion of the suspension where an attorney had engaged in misconduct that included escow irregularities and abandoning a criminal client. As to sanction:
"In determining an appropriate measure of discipline to impose, the respondent's position has been that while he has made mistakes occasioned by his severe depression, he is not guilty of any venal misconduct and poses no danger to the public. His admitted failures to comply with the Grievance Committee's legitimate demands for information regarding the handling of his escrow account needlessly prolonged the investigation and forced the Grievance Committee to seek court intervention. Moreover, the respondent has never fully accounted for the activity in his escrow account. Although motivated by a desire to assist his downtrodden clients, who lacked the means to even cash their own social security disability checks due to their lack of satisfactory identification cards after relocating from Florida, the respondent violated the disciplinary rules in his efforts to be of assistance.
The respondent testified that his participation in a 12-step program has allowed him to conquer his addictions, and that he has started to get his life back in order.
The Grievance Committee reports that the respondent has no disciplinary history.
Notwithstanding the absence of complaints by aggrieved clients and the mitigation advanced, especially the respondent's efforts at rehabilitation, he is guilty of serious professional misconduct. Despite the respondent's sworn testimony that he rarely used his escrow account other than for certain limited purposes, the bank records reveal a number of disbursements for what appear to be personal expenses. He failed to fully account to the Grievance Committee for discrepancies revealed by its investigation. OCA records reflect that his attorney registration remains delinquent since 2002.
Under the totality of circumstances, the respondent is suspended from the practice of law for an additional two years." (Mike Frisch)
Enthusiasm Not Required
The Kansas Supreme Court held that a prosecutor breached a plea agreement to recommended probation if the defendant met a sentencing criteria that the defendant was able to satisfy. Although the prosecutor did recommended a probationary sentence, the court concluded that the half-hearted endorsement was insufficient to fulfill the plea bargain:
"[The defendant's] prosecutor said that she recommended probation, but the words she used do not meet the minimum requirements for a recommendation. Recommend means 'to praise or commend (one) to another as being worthy or desirable,' or 'to make (the possessor, as of an attribute) attractive or acceptable.' American Heritage Dictionary 1460 (4th ed. 2000). The prosecutor here did not state anything that would cause an objective person to conclude that probation was worthy, desirable, attractive, or even acceptable.
A prosecutor does not need to be enthusiastic in making the recommendation agreed upon in the plea bargain. United States v. Benchimol, 471 U.S. 453, 455, 85 L. Ed. 2d 462, 105 S. Ct. 2103 (1985). But the prosecutor must at least make the recommendation, and the prosecutor may not so undermine the recommendation that only lip service has been paid to it. In our case, the recommendation of probation was meaningless unless the trial court could make the finding required by statute that community safety interests would be promoted through offender reformation if Foster were placed on probation. The prosecutor never said that such a finding would be proper in Foster's case and provided information that appears to the contrary. That breaches the plea agreement."
The defendant is entitled to resentencing with the benefit of the bargain bestowed. (Mike Frisch)
May 1 Conference in Chicago on the Business of Legal Practice: Death to Billables? Cynicism in Business Advising?
Posted by Alan Childress
I posted this announcement two weeks ago on a symposium by DePaul's law school, to be held on May Day in Chicago, about the ethics of the business of practicing law. One of the hot topics is on the issue of billable hours. Here is another blog post about it, from an interested party planning to go. The post is by our own blogeague Nancy Rapoport, on her own blog.
Nancy has also posted a thoughtful post on what a law school ideally wants in a faculty. See it at Madisonian.net here, and the reaction to it by Michael Froomkin at Miami here. Froomkin gives her post "the biggest cheer" among Madisonian's mobblog on legal education. Every law teacher should read it.
Finally, Nancy references, recommends, and links an excellent post on business ethics from our own Jeff Lipshaw, posted over at Concurring Opinions, entitled Realism and Idealism in Business Ethics: A Post-Bear Reflection. Jeff fights the notion that the accurate message to law students about corporate legal advising is cynical, that "the corporate world is corrupting and essentially random and beyond your control, and there's not a whole lot you can do about it, except hope that your figurative airplane doesn't crash."
Not Unjust And Not Enough
The New York Appellate Division for the Third Judicial Department imposed harsher reciprocal discipline in a case where the attorney had been suspended for 90 days in Michigan. The attorney had, among other things, accepted a settlement contrary to the client's direction, failed to notify the client of the receipt of the proceeds, and "knowingly changed and executed the release on behalf of his client, which altered and changed his client's legal or equitable remedies." The court rejected the contention that reciprocal discipline would be unjust and ordered a six-month suspension with reinstatement only after the attorney "make[s] the showing required by this Court's rules." (Mike Frisch)
No Payment Of Non-Indigent Legal Fees
The Iowa Supreme Court held that a district court had exceeded its authority in ordering the state public defender to pay the fees of a lawyer appointed to provide legal services to a non-indigent litigant who had been deployed to Afghanistan. (Mike Frisch)
April 10, 2008
Love (But Don't Represent When There's A Conflict) Thy Neighbor
The Maine Board of Bar Overseers reprimanded a lawyer who had represented both his neighbors and a local bank. The attorney stipulated that he should not have undertaken to represent the neighbors in re-financing their residential property as his "personal interests became potentially adverse...due to a previous restrictive covenant in favor of [him] (which [he] had drafted in 1974) likely affecting the property." He had failed to disclose potential conflicts to the neighbors and the bank. The neighbors eventually paid the lawyer $20,000 to release his interest in their property. He later came to realize his error and apologized. Part of the sanction requires the attorney to "participate in one or more live CLE courses that address conflicts analysis, real estate law, and fiduciary relationships." (Mike Frisch)
Technologically Challenged Lawyer Suspended
An attorney was suspended for three months by the Supreme Court of Kansas a result of two complaints. In a bankruptcy matter, the following misconduct took place:
"Beginning September 1, 2004, pursuant to a rule change, the United States Bankruptcy Court required that all pleadings be filed electronically. In order to file electronic pleadings with the bankruptcy court, an attorney must have a login name and password.
In January 2005, Respondent attempted to file a bankruptcy case, in behalf of another client, using paper pleadings rather than electronic pleadings. The bankruptcy court sent Respondent an order and in the order advised Respondent that petitions and other pleadings must be filed electronically. The court ordered Respondent to attend the required training, pass the examination, and obtain a login name and password within 30 days. Respondent failed to obtain a login name and password within 30 days.
On March 31, 2005, Respondent attempted to file a bankruptcy case in behalf of another client. On April 11, 2005, a bankruptcy judge advised Respondent in writing that he was not permitted to file a bankruptcy case using paper pleadings and that all pleadings must be filed electronically."
The lawyer never got the log in name and password and failed to file the case in conformity with court rules. He did not return the advanced fee after discharge. The second complaint involved his failure to properly handle discovery responses, to respond to a summary judgment motion and to inform the clients of the resulting adverse judgment. (Mike Frisch)
Reinstatement Process Invites Public Comments
Here's an idea that I wholeheartedly endorse: public notice of a petition for reinstatement to practice by a suspended or disbarred attorney. The Virginia State Bar has a post that describes the misconduct and invites the public to comment on the petition. (Mike Frisch)
The Minnesota Supreme Court ordered that a previously suspended attorney be conditionally reinstated. The condition? The lawyer must take and pass the professional responsibility portion of the state bar exam.
In an unrelated matter, the court imposed a public reprimand and two-year probation for a Rule 4.2 (communication with represented person) violation. The lawyer must "complete a course of individual study...[that] shall address the topic of ethical problems in the practice of criminal law and, specifically, the practical implications of Rule 4.2..." Satisfactory completetion of this requirement must be demonstrated in writing. The lawyer is also barred from representing defendants in cases involving certain specified crimes without a more experienced co-counsel. (Mike Frisch)
A Courtroom Is Not The Jay Leno Show
Abovethelaw has a post concerning a public admonishment of a judge of the Orange County California Municipal Court. Among the high (or low) lights: holding up a hand-lettered "overruled" sign in ruling on plaintiffs' objections, encouaging defense counsel to "give free rein to deride and make snide comments at will" (such as doing a Rod Serling Twilight Zone intro complete with music while cross-examining the plaintiff), inappropriate comments and banter ("While these comments may have been humorous to the judge and defense counsel, humor should never be used to belittle litigants or counsel.")and the use of "red cards" (a soccer reference) to deal with plaintiffs' counsel. The judge had received prior discipline for comments reflecting ethnic bias. The Commission on Judicial Performance noted that greater discipline was not imposed in light of the judge's agreement to retire. (Mike Frisch)
New Rules For Louisiana Judges
The Louisiana Supreme Court has amended its Code of Judicial Conduct regarding compensation, gifts, loans, bequests, favors and other things of value. The new rule, effective January 1, 2009, requires annual reporting of all compensation and expenses received by a judicial officer. (Mike Frisch)
April 9, 2008
Global Law Symposium at Georgetown Law
Georgetown Law's Center for the Study of the Legal Profession is sponsoring a symposium on The Future Of The Global Law Firm on April 17-18, 2008 at the law school. As reflected in the attached conference description, "[t]he goal of the symposium will be for scholars and practicioners to engage in a dialogue that illuminates the challenges that lie ahead for law firms that aim to operate and compete on the global stage." There is no fee to attend, but it is asked that you register beforehand by contacting Satrice Rigsby at 202-662-9890 or firstname.lastname@example.org. (Mike Frisch)
The Chain Of Command
A report in The Detroit News states that a complaint has been filed with the Michigan Attorney Grievance Commission seeking a bar investigation of the Wayne County Prosecutor for failure to supervise an assistant prosecutor who is the subject of recent formal charges relating to the use of perjured testimony in a drug trial. We posted information about those allegations last week. The complaint was filed by a lawyer who is quoted in the article. (Mike Frisch)
The Wisconsin Supreme Court accepted a stipulated disposition and imposed an agreed-upon two-year suspension in a matter involving "lack of diligence, misrepresentation and other violations." The attorney had a record of prior discipline. The court explains:
"We conclude the misconduct and Attorney Engelbrecht's disciplinary history warrants the suspension of his license to practice law in Wisconsin for a term of two years, together with $1,000 in restitution to the Wisconsin Lawyers' Fund for Client Protection. In reaching this conclusion, we consider that Attorney Engelbrecht's misconduct involves a number of aggravating factors, including his recent disciplinary history. Attorney Engelbrecht's misconduct is serious because it exhibits dishonest and selfish motives, multiple offenses, failure to cooperate with the disciplinary agency, submitting false evidence and using deceptive practices during a disciplinary process, indifference to making restitution, and harm to clients. Attorney Engelbrecht kept $1,000 of his client's money which he did not earn and attempted to disguise his own culpability. Attorney Engelbrecht failed to respond to several letters and phone calls from the OLR's investigator. In addition, Attorney Engelbrecht misrepresented to the OLR that it was his client who had failed to obtain service. Attorney Engelbrecht submitted a fabricated letter in support of that misrepresentation. We note that Attorney Engelbrecht was cooperative with the OLR during the litigation of this matter, however, and admitted his misconduct and accepted responsibility."
"Needless and Standardless Litigation"
In a lawsuit between three firms involved in the settlement of a medical malpractice action for $6.7 million, the New York Appellate Division for the First Judicial Department held that a lawyer who had "actually contributed to the legal work" and never refused a request to render more substantial legal services did not violate New York Code of Professional Responsibility DR 2-107(A) and was entitled to a one-third share of the amount recovered "under the statutory sliding scale applicable in malpractice cases" but not a share of the enhanced award over the normal sliding scale. The court's majority opines:
"Sinel made no contribution to the extraordinary services provided by Samuel and Pegalis that resulted in the trial court granting their application for an enhanced award of legal fees over the normal sliding scale. Under the circumstances, allowing Sinel to share in any portion of the enhanced award would result in a fee grossly disproportionate to the services rendered. It would result in defendants, the referring attorneys, being awarded a fee larger than plaintiffs, the attorneys who did the bulk of the work. Clearly, this could not have been the intent of the attorneys when they entered into their agreement nor can it be consistent with this Court's obligation to oversee the reasonableness of legal fees (citations omitted)."
A dissent would enforce the contractual provisions between the lawyers and warns that the majority approach "establishes a precedent that will encourage-and enmesh the judiciary in-needless and standardless litigation."
Further, the dissent notes:
" 'It has long been understood that in disputes among attorneys over the enforcement of fee-sharing agreements the courts will not inquire into the precise worth of the services performed by the parties as long as each party actually contributed to the legal work and there is no claim that either refused to contribute more substantially' (citations omitted). Moreover, it ill becomes defendants, who are also bound by the Code of Professional Responsibility, to seek to avoid on ethical grounds the obligations of an agreement to which they freely assented and from which they reaped the benefits (ABA Comm on Professional Ethics, Informal Opn No. 870).
This Court has repeatedly followed that 'well[-]settled' rule..." (Mike Frisch)
April 8, 2008
An Unusual Retainer Agreement
A case from the Florida Supreme Court that declared a state statute invalid involved a retainer agreement with an interesting twist-- "[i]n the event a dispute arises...the Client and Lawyer shall not make arbitrary decisions, but shall make decisions based on all facts reasonably available. In the event any dispute cannot be resolved between Lawyer and Client, the dispute will be resolved by [a third-party arbitrator] after joint consultation with the Client and the Lawyer and [the arbitrator's] decision...will be binding on both the Lawyer and the Client."
Among other things, this provision specifically covered the decision whether or not to settle the case. When a disagreement over settlement thereafter arose, the arbitrator decided that the client should accept the offer and the lawyer took steps to effectuate the settlement agreement. The client then sued the lawyer for malpractice, which led to a jury award of no damages and costs in favor of the lawyer. The court decision deals with the issue of costs for expert witnesses.
Any thoughts out there on this retainer provision? (Mike Frisch)
The Wisconsin Supreme Court held that the public reprimand recommended by a referee was unduly lenient and imposed a nine-month suspension. The court accepted the conclusion that the lawyer had not violated ethics rules by failing to turn over $230,000 in co-trustee fees to his law firm. However, he had failed to report the fees as income on state and federal tax returns. As to sanction, the court looks to prior cases and concludes:
"Attorney Elverman's failure to report the trustee fees on his income tax returns falls into two separate categories, the first encompassing tax years 1999 through 2001, and the second encompassing tax years 2002 and 2003. For the earlier years, Attorney Elverman claims that he simply forgot to report the trustee fees as income. If those three tax years were the only ones at issue, we would be more inclined to view this as a Lex or Young situation and impose a public reprimand. For the tax years 2002 and 2003, however, Attorney Elverman freely admits that he knew he was supposed to report the trustee fees as income but chose not to do so because of other personal financial obligations. In addition, we note that it was not until April of 2005, after the OLR had commenced its investigation, that Attorney Elverman took the affirmative step of filing amended income tax returns for all of the years in question. It is Attorney Elverman's post-2001 conduct, whereby he consciously chose not to report the trustee fees as income even though he knew he was supposed to do so, that takes this case outside the realm of a Lex or Young situation and moves it on the continuum toward Washington and Phillips.
Attorney Elverman's failure to report the trustee fees as income on his tax returns is a serious failing. In light of the seriousness of his misconduct and particularly given the fact that he knowingly failed to report the fees as income until he was under investigation by the OLR, we believe that the public reprimand recommended by the referee is too lenient. Instead, we conclude that a nine-month suspension of Attorney Elverman's license to practice law in this state is appropriate."