Saturday, April 19, 2008

Complaint Not Withdrawn

The Arkansas Supreme Court Committee on Professional Conduct ordered but stayed until further order a 12 month suspension for a number of ethical violations in connection with a bankruptcy matter. The former clients had sought to withdraw the complaint; the committee states that the matter was referred by a bankruptcy judge and that the former clients did not have the power or authority to drop it. (Mike Frisch)

April 19, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Like Stealing

An Illinois Hearing Board has recommended disbarment in a case involving a single count of neglect and failure to return an unearned fee. The board found that the lawyer had never intended to perform the legal services for which he had been paid and that his conduct was no different from theft or conversion:

"While we have found that Respondent neglected one client matter, we also find that this case has elements of an attorney who abandoned his practice and stole money from his clients. This is not a simple case of neglecting a client matter. Based on the facts, we can reasonably infer that Respondent had no intention of representing the Castellanoses. Instead, he lied to them and essentially stole $5,000. Respondent simply took the money that was supposed to be used for his legal fees, and disappeared, never to be heard from again."

(Mike Frisch)

April 19, 2008 in Bar Discipline & Process | Permalink | Comments (2) | TrackBack (0)

Friday, April 18, 2008

Is Jack Welch Out of Touch?

Posted by Jeff Lipshaw

I had a flashback to 1996 or so when I saw the Wall Street Journal's front page story on Jack Welch's criticism of General Electric's earnings miss, and his attribution to his successor and current CEO, Jeffrey Immelt, of a "credibiity problem." The next day, Welch apologized for sounding like a buttinski, and a retired one at that, coming across, as he did, like somebody (Greenspan? Weill?) who just can't let go.

What follows is not for the faint of heart, but it's the academic in me. My intended audience here is educated, thoughtful, but not financial or corporate, people. And understand that I have tremendous respect and admiration for Jack Welch's leadership philosophy and rhetoric.

A bit of context may be necessary for those not familiar with the reporting of financial results by public companies in the United States. Under SEC regulations, companies release their results shortly after the end of each fiscal quarter, and just after the end of each fiscal year. In companies like GE, this is an almost inconceivably complex process, involving hundreds of thousands of inputs and outputs into what is known as enterprise resource planning (ERP) software, the most famous of which is SAP, and other financial consolidation programs. But the millions of transactions undertaken by a company like GE get boiled down to what the company earned per share of stock (earnings per share or EPS), and that's what you hear about at times like this.

What does it mean to "miss"? Who sets the target? Well, that's an interesting question. The target is set by a group of people who serve as proxies for the market, called analysts. (These are "sell-side analysts" but we'll leave that to another time.) The analysts work for brokers and investment banks, and they do research on the companies, which the brokers and banks provide to their clients. The analysts construct financial models, and the trick is (a) to have a good model, and (b) to put really good data into it, so as to predict the company's earnings in the succeeding quarters and years.

Sometimes companies help out by actually saying what their EPS target is! In fact, in 1996 or so, that was standard practice. GE would say in January of a year that its expected EPS per quarter was X, Y, and Z, and its expected EPS for the year would be Q. You can imagine the pressure that this put on GE managers to make sure that they achieved their budgets so as not to make a liar out of Jack Welch. Indeed, in this very context, here's a quote from the Journal's article a few days ago on the GE miss:

In 1994, Immelt’s GE Plastics unit missed net income expectations by $50 million, spurring a tough-love speech from his boss, Jack Welch, who told him that if his unit missed its results again, Immelt would be out. Immelt’s observation in a great, frank interview with Fast Company magazine: “Failures are great learning tools — but they must be kept to a minimum.” (In a wry — or “Doh!” — moment, Immelt said of his future ambitions, “I’d love to say I could teach math, but I can’t even help my daughter with that.”)

Now, of course, the question was how GE managed to hit EXACTLY that number every single quarter, year after year. Well, certainly the portfolio is diversified and some businesses will be up while others are down. But I'm afraid you don't get that consistent to the penny without some financial engineering. And that was the world of Jack Welch and the CEOs of the other mega-corporations of the 1980s and 1990s.

As you can imagine, what analysts REALLY don't like is to be surprised. They don't particularly like bad news, but they don't get paid according to the fortunes of the stocks they cover. They make money according to their ability to predict the fortunes of the stocks they cover. So the biggest sin, and the credibility problem if there is one, is the failure to be reasonably transparent. (Note: there is largely no legal duty of transparency. That is, unless you've done something to create a duty to disclose result before the normal reporting dates, there is no duty to disclose.) What has people flummoxed is that Mr. Immelt reaffirmed that GE would come in as expected for the first quarter of 2008 only seventeen days before the end of the quarter.

Now we get into some real subtleties of earnings reporting and earnings management. The stock price is, in theory, the earning power of the company over the long run reduced to present value. In that vein, one doesn't even worry about the difference between earnings and cash flow, because in the long run, they are the same. So a good analyst discounts the hurt of one-time bad events and discounts the help of one-time good events. What she really wants to see is that the ongoing operating engine of the company is robust. But, of course, it's not that simple, because all the one-time stuff has to be accounted for, and the financial statements don't conform to generally accepted accounting principles if they don't. So companies and analysts do pro forma statements to peel away the one-time stuff, unless of course you want to obscure the fact that the ongoing business is having problems, in which case you highlight the GAAP stuff.

Why did GE miss? As I read the reports, for three reasons:

- all of the underlying businesses in GE's portfolio underperformed expectations on an ongoing basis. I can't tell offhand if the credit market problem, which occurred in the last two weeks of March, were accounted for at the underlying business level, but it doesn't make sense that they would be. No, there are economy-related issues, I would think.

- GE had to recognize unusual losses because of the markdown of financial assets because of the credit market problems in the last two weeks of March. This is interesting, because the markdown of assets is not something on which you just pull a switch. It involves an extended analysis and discussion between the company and its auditors. For all I know, GE had not figured out how much it had to report as the loss until thirty minutes before it released its earnings, and that would have been well after March 31.

- GE didn't close some real estate sales, which would have given one-time gains that would have sheltered losses in the two other categories I just listed.

So finally, what's the credibility issue, and why do I think Jack Welch sounded out of touch? It's a real credibility issue not to at least appear to be transparent with your analysts. Personally, were I a public company CEO, I wouldn't give earnings guidance, and I would certainly not give it seventeen days before the books close for the quarter. But analysts predict, even if the company doesn't give guidance, and the tough call is whether to "pre-announce" a miss, so that at least the analysts don't feel unduly sandbagged.

It's also a real credibility issue if the earnings engine of the underlying business is flawed, and you are using the smoke and mirrors of one-time events to make it seem otherwise.

But that's not why I think Welch sounded out of touch. No, to him, the credibility issue goes to EVERYTHING, including all of the macroeconomic forces that touch upon a business. Because part of the GE management myth was that a great leader-manager could indeed stand in front of and hold back the tsunami. And if [s]he didn't, there was always somebody else who could. Which is why Welch could say "I'd be shocked beyond belief and I'd get a gun out and shoot him if he doesn't make what he promised now." As though, along with everything else, and as talented as he is, Jeff Immelt can personally impact the price of oil, the buy-out of Bear Stearns, consumer confidence, and the restructuring of the housing market.

It's a different world now. In the 1990s, Jack Welch was a visionary, preaching the rhetoric (and damn good rhetoric at that!) about learning, and boundarylessness, and values, but it was millennial rhetoric coming out of guys who came to business maturity in the 1950s and 1960s. Yes, CEOs still need credibility, but it's no longer credible to impute the powers of the Imperial CEO even to Jeffrey Immelt.

April 18, 2008 in Law & Business | Permalink | Comments (0)

The Original Boston Legal: John Adams, Esq.

Posted by Alan Childress

We are happy to post this media reminder sent by Kelly Anders, Washburn Law School's associate dean for student affairs.  She writes:

HBO’s seven-part miniseries, “John Adams,” concludes on Sunday. History buffs, legal historians, and Con Law aficionados alike will appreciate this thoroughly-researched and well-acted depiction of the lives of John and Abigail Adams. The series is based on the Pulitzer-winning book by David McCullough (who also won the same prize for his book on Harry Truman). Additional details about the “John Adams” miniseries are available at and

And in the IMDB page for the series, here, you will find links to pages for trivia and errors. For example, IMDB reports:

The film shows all troops acquitted for the Boston Massacre, however two men were found guilty of murder because they were found to fire directly into the crowd. John Adams was able to have their charges reduced to manslaughter due to a loophole in British law by proving the men could read. The two solders were punished by branding on their thumbs.

My own research reveals that Dean Anders has long followed the role of lawyers and law in popular culture, so it is not surprising this caught her eye and she shared.  Here is an SSRN link I found to her 2007 article, "Reviewing Silkwood at 25: The Reel Impact on Environmental Policy."  It is about Cher, Streep, and a needed sequel to the movie. Her abstract is below the fold.

Continue reading

April 18, 2008 in Lawyers & Popular Culture | Permalink | Comments (0) | TrackBack (0)

IP Litigation, Cease and Desist Letters, and One Good Reply Letter to Monster Cable

Posted by Alan Childress

Jeff recently opined that IP law and lawsuits is one area of practice, he observed, where there are marketing, sales and PR incentives, beyond the lawsuit at hand and its objectives, to pursue expensive and complicated court remedies.  "It's because the fact of the litigation casts a cloud on the allegedly infringing product. ... Indeed, dollar for dollar, it may be one of those instances in which legal fees really do bring some bang for the buck in terms of the top line.  So it's nice to see that a well-respected judge has used the only effective tool there is to regulate this -- a finding under Rule 11." 

Another possible tool, before judges get involved, is the well-turned response to the draconian cease and desist letter.  Consider one that Monster Cable recently received from pesky 930451_cable_3competitor Blue Jeans Cable, whose president Kurt Denke is a lawyer and not afraid of a lawsuit, after Monster had sent it a lengthy and illustrated cease and desist letter. Audioholics Online A/V Magazine printed the reply in full, in this post, and Miami's Michael Froomkin found it "fun to read" here.  It is full of detail and patent/tech substance, but in any event starts nicely with:

RE: Your letter, received April Fools' Day

Dear Monster Lawyers,

            Let me begin by stating, without equivocation, that I have no interest whatsoever in infringing upon any intellectual property belonging to Monster Cable.  Indeed, the less my customers think my products resemble Monster's, in form or in function, the better.

Then Denke was interviewed yesterday at this site about this whole matter.

In his own post, Jeff added that "I used to swear that in some of our patent cases the lawyers for both sides had a 'nasty discovery dispute letter' quota that they had to fill...."  Maybe some of this can be Index_bl headed off at the pass with detailed, challenging and inquiring reply letters earlier in the skirmish.  The only thing I might have added is some language to the effect that the writer would of course regard a failure to provide the requested information, and substantiation to the outrageous and sweeping assertions in the cease and desist letter, to constitute a waiver of such claims and certainly of the fact of a valid cease and desist letter itself.

April 18, 2008 in Economics | Permalink | Comments (1) | TrackBack (0)

No Second Bite

A conviction for assault was affirmed by the North Dakota Supreme Court. The trial judge disclosed that he was "socially acquainted" with a witness (their sons play baseball together) and would be "inclined to believe" the testimony of the witness. The parties agreed to a bench trial after the judge had disclosed this fact. Objection was raised on a motion for new trial after conviction. The court upheld the waiver:

"After the criminal judgment had been entered against him, Jacobson moved for a new trial. A party seeking to disqualify a judge from a proceeding must file a timely motion. See Center for Professional Responsibility, supra, at 187. It was improper for Jacobson to wait to see if the district court decision was favorable to him before moving for a new trial on the ground that Judge Haskell should have recused himself from the matter. See id.; see also United States v. Vadner, 160 F.3d 263, 264 (5th Cir. 1998) (holding "[t]he most egregious delay -- the closest thing to per se untimeliness -- occurs when a party already knows the facts purportedly showing an appearance of impropriety but waits until after an adverse decision has been made by the judge before raising the issue of recusal"); Madsen v. Prudential Fed. Sav. & Loan Assn., 767 P.2d 538, 543 (Utah 1988) (quoting 46 Am.Jur.2d Judges § 202, at 225-26 (1969) ("It is a well-recognized rule that an application for the disqualification of a trial judge must be filed at the earliest opportunity. The courts generally apply this rule with strictness against a party who, having knowledge of the facts constituting a disqualification, does not seek to disqualify the judge until an unfavorable ruling has been made.")."

Chief Justice VandeWalle specially concurred. Justice Crothers concurred and dissented in part:

"Given the need for strict compliance with remittal procedures, we should be unwilling to conclude Jacobson agreed to discuss remittal of the Judge's disqualification based on his counsel's concurrence in an in-limine motion concerning documents or records not produced in discovery and not admissible at trial. I also believe we neuter our Canon if we conclude--like the Majority appears to have concluded--that this requirement is satisfied by a party's failure to affirmatively object to the judge continuing to preside over a matter. This is especially true since the question of remittal is not ripe for consideration until after the judge is disqualified." (Mike Frisch)

April 18, 2008 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Bad Day For Bar Counsel?

After today's earlier post on the dismissal of the bar prosecutor's appeal from Iowa comes an order from an Illinois granting summary judgment to an accused lawyer on the grounds that the prosecutor had not presented sufficient evidence in opposition:

"By failing to take advantage of the opportunity to file an amended response to the Motion for Summary Judgment with appropriate factual support, the Administrator compels us to rule on the Motion on the basis of the record as it now stands. In declining to oppose the Motion with such factual support, the Administrator does not engage in a mere technical failure to comply with Rule 191(a); he leaves us with no alternative but to grant Respondent’s Motion for Summary Judgment. Other than the unsupported allegations of the Complaint, there is no basis by which we can conclude the Administrator would arguably be entitled to a judgment.

We are mindful that the Administrator may very well have been able to overcome the burden of Rule 191(a) and have established that there exists an arguable issue of fact that would justify a trial on the merits, but he did not do so. ARDC Hearing Panels are obligated to decide matters of law and fact in accordance with applicable rules and legal principles, and we do so in this case, based on the record and pleadings presented by the parties. Accordingly,


that Respondent’s Motion for Summary Judgment is granted and judgment in favor of Respondent be, and is hereby, entered."

I assume that an appeal, if any, will be timely filed. (Mike Frisch)

April 18, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Due Deference

The New York Appellate Division for the First Judicial Department imposed reciprocal discipline of public censure based on the imposition of that sanction in Massachusetts, where the attorney conducted his practice. The court explains:

" is generally accepted that the state where an attorney subject to discipline lived and practiced law at the time of the offense has the greatest interest in the matter and in the public policy considerations relevant to the disciplinary action and great weight should be accorded to the sanction administered by the state where the charges were originally brought. (citations omitted)"

Makes sense to me. (Mike Frisch)

April 18, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Day Late

When a case is styled something like Disciplinary Board v. Attorney Doe, it is a pretty safe bet that the accused lawyer won the case or appeal. The Iowa Supreme Court dismissed an appeal by the Attorney Disciplinary Board in a matter where the attorney had been found by the Grievance Commission to have engaged in misconduct for which a private admonition was imposed. The board filed the notice of appeal of the admonition one day late. On appeal, the board argued that the "ten-day time not a mandatory deadline and will not prevent the court from reviewing the Commission's disposition unless Attorney Doe can show the delay was prejudicial." The court rejected that argument and dismissed the appeal without considering the merits. (Mike Frisch)

April 18, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, April 17, 2008

No Misconduct Found

An Illinois hearing board has recommended dismissal of disciplinary charges against an attorney admitted to practice in 2000. The attorney had assisted in the preparation of grant applications that did not accurately reflect case statistics; she had been hired by a family friend and was not provided training or guidance in the grant process. While she did know that the case statistics had been inflated, she promptly reported the situation to the ARDC. The hearing board concludes:

"We find that the Administrator failed to offer evidence proving that Respondent intended to engage in dishonest conduct. Without any evidence of dishonest intent, we view any misrepresentation as simply an exercise in poor judgment and, at most, a technical violation of the rule. (citation omitted). The circumstances of this case indicate that Respondent derived no personal gain from her actions; no clients benefited nor were any clients harmed by Respondent’s actions. We find Respondent’s testimony to be credible and irrefutable. Respondent stated that she was inexperienced, had no resources to consult for assistance and she was under the impression that the information was immaterial to the grant application process. Once Respondent realized the importance of the client data sheets, she took every action to rectify the potential inaccurate information. We find that Respondent’s subsequent actions to be appropriate in attempting to rectify the situation. The Administrator stated that Respondent should have resigned immediately. We question the Administrator’s claim. How fast should an attorney react? In this case, Respondent reported herself within eleven days and resigned from her position in nineteen days. In this case, we find this length of time appropriate. Further, we find that Respondent’s conduct does not defeat the administration of justice or bring the legal profession into disrepute." (Mike Frisch)

April 17, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Never Saw This Argument To The Fifth Circuit Before: "I Try Not To Read That Many Cases, Your Honor"

Posted by Alan Childress

Worst moot court tips ever?  Yesterday, the U.S. Court of Appeals for the Fifth Circuit rendered this per curiam opinion that left me flabbergasted, thought its merits are uneventful (hence the p.c.).  The lawyer was labeled as "unprofessional" and his failures "troubling and disgraceful," in part because "he had not read a key Supreme Court case."  He was ordered to serve a copy of the opinion on his client, and to prove service of process with the Court.

The money exchange is in footnote 4:

Phipps: . . . so that’s about all I have to say, Your Honor. I don’t have anything other
than that. You know, my client lives in Chicago. ... She continues to earn a living, and she’s generally unavailable if you call her because she, she’s sort of a traveling doctor.
Judge: That’s not much of thing you come in here and tell us, I guess.
Phipps: Well, my attitude is, the [district court] judge got it right . . . . And as far as
whether even Ricks should apply, I don’t think it should.
Judge: What do you do about Morgan?
Phipps: I don’t, I don’t, I don’t know Morgan, Your Honor.
Judge: You don’t know Morgan?
Phipps: Nope.
Judge: You haven’t read it?
Phipps: I try not to read that many cases, your Honor. Ricks is the only one I read. Oh,
Ledbetter, I read Ledbetter, and I read that one that they brought up last night.
I don’t know if that’s not Ledbetter, I can’t remember the name of it. Ricks is the
one that I go by; it’s my North star. Either it applies or it doesn’t apply. I don’t
think it applies.
Judge: I must say, Morgan is a case that is directly relevant to this case. And for you
representing the Plaintiff to get up here—it’s a Supreme Court case—and say
you haven’t read it. Where did they teach you that?Gavel_15
Phipps: They didn’t teach me much, Your Honor.
Judge: At Tulane, is it?
Phipps: Loyola.
Judge: Okay. Well, I must say, that may be an all time first.
Phipps: That’s why I wore a suit today, Your Honor.
Judge: Alright. We’ve got your attitude, anyway.

And in that footnote, the money quotes are "Nope" and "They didn't teach me much, Your Honor."  Imagine my relief that the indicted law school was not mine, Tulane, but Loyola.  Also imagine, if you will, the reaction of one of the members of the panel, a Judge who graduated from Loyola.  Hey, at least the attorney wore a suit?

UPDATE:  A commenter below states that the 'Loyola' in question (Mr. Phipps's alma mater) is Loyola-Chicago, not New Orleans, citing the Martindale-Hubbell Directory which indeed says so.  But all other internet evidence (and an email to me from a colleague who went to school with him) strongly suggests that Roger Dale Phipps is a graduate, J.D. 1990, of Loyola-New Orleans.  Out of an excess of caution -- and because I have friends and former students whom I admire that teach at Loyola-New Orleans -- I will just assume that Mr. Phipps is a proud graduate of Loyola-Los Angeles.

Further Update (4/25): See my update post here.

Continue reading

April 17, 2008 in Professional Responsibility | Permalink | Comments (17) | TrackBack (1)

Extreme Remorse Leads To Censure

The New York Appellate Division for the Fourth Judicial Department censured an attorney who had agreed to and did pay a nonlawyer for a referral that resulted in the lawyer's retention and failing to pay one-half of the fee to his partner in violation of a order applicable to the partnership dissolution. Mitigation: candor, cooperation, extreme remorse and a contentious partnership breakup.

The link takes you to the court's web page. The case is Matter of Krug, decided March 14,2008. (Mike Frisch)

April 17, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wisconsin Will Not Regulate Paralegals

The Wisconsin Supreme Court web page contains an announcement stating that the court has unanimously voted to not adopt a proposal by the Bar's Board of Governors that would have created a system for the licensing and regulation of paralegals. The announcement states:

"The Court recognized the essential contributions of paralegals to our legal system and their legitimate desire for recognition of their expertise and professionalism. However, the Court also acknowledged the reality that the prospect of creating an entirely new regulatory enforcement structure or dramatically expanding existing agencies presents a daunting task in the present economic climate.

In voting to deny the petition, the Court invited the Bar’s Board of Governors and interested paralegal organizations to consider the merits of a voluntary registered paralegal program, and if deemed appropriate, to submit a rules petition.

The Court suggested that the Bar and interested paralegal organizations review the merits of a voluntary registration program adopted by the Florida Supreme Court for ideas that could be used in Wisconsin." (Mike Frisch)

April 17, 2008 in Law Firms | Permalink | Comments (0) | TrackBack (0)

Email Leads To Reprimand

The Maryland Court of Appeals imposed a reprimand in a rather interesting matter involving an attorney who met a woman through an internet dating site. When she inquired if there was a way "to get around the requirement that the parties be separated one year in order to obtain a no-fault divorce," he replied by email: "You can file whatever you want so long as the parties say that it has been a year, the court won't question it so long as the parties agree to that." The woman had dinner with the lawyer two days later but never retained him. The email "could have given [her] the impression that intentionally misrepresenting information to the Court is acceptable so long as all parties involved set forth the same information." In an unrelated matter, a miscommunication about whether a lien had been recorded did not amount to an ethical violation based on a finding he did not intend to make a misrepresentation.

Bar Counsel had sought a suspension of at least two years. The court concluded  that a more severe sanction for the email communication would be punitive as the recipient did not even remember it at the dinner and did not act on the advice. There is no indication that I can see as to how the email came to the attention of disciplinary authorities, as it appears that the recipient ignored it. (Mike Frisch)

April 17, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 16, 2008

Lethal Injection Procedure Upheld

The Supreme Court has decided that the procedures used in Kentucky for execution by lethal injection do not violate the Constitutional prohibition against cruel and unusual punishment. Executions had been placed on hold nationwide pending this decision. There are a number of concurring opinions, the most interesting of which (on a fast first read) appears to be Justice Scalia's sharp and personal criticism of the views of Justice Stevens. Two justices dissented.(Mike Frisch)

April 16, 2008 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Assisting Pro Se Litigants

A recent opinion of the New Jersey Advisory Committee on Professional Ethics deals with the degree of assistance that a lawyer may provide to a pro se litigant. The committee concludes:

"We believe that, given the New Jersey Supreme Court's manifest intent to remove impediments to providing at least some assistance to the unrepresented, the better course is to adopt an approach which examines all of the circumstances. Disclosure is not required if the limited assistance is part of an organized R. 1:21-1(e) non-profit program designed to provide legal assistance to people of limited means. In contrast, where such assistance is a tactic by a lawyer or party to gain advantage in litigation by invoking traditional judicial leniency toward pro se litigants while still reaping the benefits of legal assistance, there must be full disclosure to the tribunal. Similarly, disclosure is required when, given all the facts, the lawyer, not the pro se litigant, is in fact effectively in control of the final form and wording of the pleadings and conduct of the litigation. If neither of these required disclosure situations is present, and the limited assistance is simply an effort by an attorney to aid someone who is financially unable to secure an attorney, but is not part of an organized program, disclosure is not required.

The duty to disclose is rooted in RPC 3.3(a) (5) as well as RPC 8.4(c) and (d). These ethics rules simply require candor and fairness toward the tribunal. We emphasize that even where disclosure is required, the limited representation itself is fully permissible as long as the requirements of RPC 1.2(c) are met. When triggered by the described circumstances, disclosure must include the name of the attorney and the fact that there is a limited scope of representation, not including actual appearance as counsel of record in the proceeding, under RPC 1.2(c). The client's involvement in the litigation, and the extent of the attorney's engagement in such circumstances, combined with the duty of candor under RPC 3.3(a) (5), support this limited exception to the blanket confidentiality required by RPC 1.6(a).

We make no comment concerning the possible applicability of Federal Rule of Civil Procedure 11 to such a situation. This Committee has no jurisdiction over questions of federal civil procedure.

We are aware that these situations present competing interests. The interests of extending legal assistance to the unrepresented, preserving confidentiality and minimizing the cost of legal representation are on one side, versus candor toward the tribunal and fairness toward opposing parties on the other. We believe the balance struck in this Opinion best advances the ethical values applicable to limited legal assistance to unrepresented litigants. "

(Mike Frisch)

April 16, 2008 in The Practice | Permalink | Comments (1) | TrackBack (0)

A Quick Reality Check for 'Eli Stone'

Posted by Alan Childress
While channel surfing the other night, I wound up watching about a third of Eli Stone, in which the lawyer was trying to get mandamus to evacuate the Golden Gate Bridge, anticipating an earthquake.  I am not qualified to give a full review (unlike Maxim, that felt comfortable reviewing an entire musical album even though they could not have heard it all yet). But it does raise some reality-check questions worth noting -- beyond his heavenly powers, and the fact that an earthquake that everyone survived at the end seemed to be an earthquake weak enough to look like it was shot by having the actors stand there while someone shook the camera a little, yet strong enough to topple the Golden Gate Bridge [somehow as observed from some spot in "Golden Gate Park" -- is that even eyeball/stance-possible?].

Anyway, for our purposes, the reality check would be for the actual trial or hearing in which one lawyer from the firm was on the other side of the case from another lawyer from the same firm.  WTF?  I really lost it when Lawyer A from that firm [Peg from Married With Children] called an associate from the firm to the stand -- an associate shared with lawyer B, Eli Stone -- to rat out Eli regarding a prior matter he had handled for a different client. 

Wow, even for Hollywood (Burbank?).  Will the never-mentioned malpractice suit to be brought by the other client against the firm be both pursued and defended by other lawyers in the firm?  I hope it will be the named partner played by the Jennifer Garner dad guy from Alias.  He seems serious and ethical enough to be able to handle both sides of that case. 

The show seems to follow the Regarding Henry premise that a traumatic brain injury of some sort causes a lawyer to become ethical.  And by ethical, we mean willing to get at the 'right' result regardless of rules, fiduciary duties, clients, privilege, and other pesky morality-suckers.

April 16, 2008 in Lawyers & Popular Culture | Permalink | Comments (0) | TrackBack (0)

"Get[ting] Into Integrity"

An attorney who had stipulated to a suspension of two years and a day with a fitness showing as a condition of reinstatement was suspended for three months by the Oklahoma Supreme Court. The court states in its recitation of facts:

"[The lawyer} testified that he primarily practiced bankruptcy law and that when the bankruptcy laws changed in October, 2005, he was incredibly busy. He stated he contacted everyone who had been through his office for the last five years about the changes to be sure there were no surprises and that his clients had what they needed. He lost his bankruptcy assistant during that time. He looked for other lawyers to take all of his cases. [He] described himself during that period of time as 'overwhelmed' and 'burned out.' He also described himself at that time as slipping deeper into a' 'emotional fog' or as being in a 'complete frozen ' When asked what was overwhelming, he answered, "everything, every day,' but could not explain it. He stated everything was 'spiraling down,' and he knew he needed to get away from the practice of law. It also affected his personal life and his thirty year marriage. Still, he could not point to any reason for reaching that state."

As to the sanction:

"Of his twenty-one-year practice, [the lawyer's]'s pattern of neglect is confined to the last two years in which he described feeling 'overwhelmed,' 'lost,' and 'in a fog.' He also testified he practiced primarily bankruptcy law. The law changed in October, 2005, at which time he lost his bankruptcy assistant and was incredibly busy. After the laws changed, he was "burned out." To his credit, and with help from the Bar, he entered into a counseling program which has helped him sort through issues with the Bar, his business, and his personal life. They separated problem areas, figured out what his approach has been, and got those things resolved. He stated he is trying to 'get into integrity' and to be responsible. He is attempting to move forward for positive things.

Finally, [He] closed his law office and tried to find substitute counsel for his cases. Although he initially told the Gibsons that he did not engage in litigation, he did agree to help the Gibsons through making inquiries with Snap-On Credit. He worked out an arrangement by which Mr. Gibson could relinquish some of the later purchased tools, and Snap-On could repossess other tools, to avoid a complete loss to either party. However, [He] testified the Gibsons failed to follow through with the details of the agreement, prompting Snap-On to pursue the repossession. [He] has admitted he failed to protect the interests of his clients through his procrastination during the last two years.

We find that [the lawyer's]  actions of seeking help through counseling and closing his law office will serve to protect the public from further harm. He has expressed a desire to retain his license to practice law to address possible legal issues which may arise in the future in confirmed bankruptcy cases and in connection with his new business ventures. However, he does not wish to maintain a private law office. He also expressed his pride in being a member of the Bar and his wish to regain his integrity in all areas of his life. He has seen improvement as a result of his ongoing counseling."

A dissent would impose the stipulated sanction. (Mike Frisch)

April 16, 2008 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

More CLE Credit For Pro Bono

The Minnesota Supreme Court entered an order soliciting comments on a proposed new rule that would expand continuing legal education credit "for pro bono work performed by qualifying legal services organizations and law firms representing persons of limited means, including pro bono work done on behalf of Minnesota Judicial Branch programs." Comments are due on or before June 4. (Mike Frisch)

April 16, 2008 in Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Meyerstein on Enemy Combatants and What That Says About the Lawyer's Broader Role in Society

Posted by Alan Childress

Recently posted to SSRN, and Bill Henderson's journal there on 'law and society: the legal profession,' is Ariel Meyerstein, "The Law and Lawyers as Enemy Combatants," also published in 18 University of Florida Journal of Law & Public Policy 299.  Ariel Meyerstein (left) is currently clerking for the Ninth Circuit, is a Ariel20meyerstein_2 JD graduate of Boalt, and is a.b.d. from Berkeley's PhD program in Jurisprudence & Social Policy.  Here is the abstract:

This article contextualizes the Senate debates leading to the passage of the Detainee Treatment Act of 2005 (DTA) within broader American cultural narratives about the law and lawyers' roles in society. This linguistic and cultural analysis describes elements of the DTA and the broader legal regime created in the aftermath of 9/11 that have subverted once-sacrosanct ideals, including the rule of law and basic procedural fairness, as merely the latest and most extreme of similar measures adopted over the last two decades to combat the spread of rights and access to justice. The "enemy combatant" is shown to be one in a line of dominant cultural images or metaphors, including the "conniving claimant" and "predator lawyers," all of which are products of what Marc Galanter long ago identified as the "jaundiced view of the law": a perspective on law and lawyers that portrays them as undermining, rather than upholding and protecting, the core values of our society, and in the process, weakening our resolve and national strength.

The article concludes by proposing that the emergence of the "enemy combatant" as a new "governmentality," or new political construct by which political power is organized and asserted, threatens not only those most immediately in danger, such as non-citizens and aliens, but also those previously thought to be safe from such an emaciation of rights and legal protections.

April 16, 2008 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)