And on a distinctly Southern campus where students wear shorts and flip-flops in January, where people smile and say hi to passersby, it's also easy to hear the Boston adjective "wicked" and spot Red Sox and Celtics garb.
May 6, 2008
Self-Medication With Cocaine No Bar To Suspension
A Pennsylvania lawyer was suspended for a year and one day (a sanction that requires the attorney to petition for reinstatement) for "his solicitation of cocaine from his client." The lawyer had been friends with the client "since the late 1980's and was his attorney from August 2004 to January 2006." The friend "was under investigation for a murder and a listening device had been installed in his home by police..." As a result of the information gleaned from the listening device, the investigation expanded into cocaine distribution. The attorney had testified in exchange for immunity against the friend and another person who had supplied the cocaine. The attorney testified in the disciplinary case that he had used cocaine to self-medicate for Irritable Bowel Syndrome. The Pennsylvania Disciplinary Board rejected a plea for a non-suspensory sanction. A dissent would have imposed the two-year suspension proposed by the Hearing Committee. (Mike Frisch)
Depressed Lawyers in California and Elsewhere
The California Bar Journal has a May 08 story called Depression takes a heavy toll on lawyers. Among other issues, it cites the Mental Healthy Day idea of GW student Daniel Suvor (our story on that initiative here), and the Lawyer Assistance Program resources available in California.
Our prior posts on the larger issues of lawyer depression and perceptions are linked here, here, and here. That final Here has further useful links to posts by John Steele at LEF and studies by Bill Henderson and others on lawyer satisfaction and mental health issues. [Alan Childress]
Who Bears The Costs?
A Michigan attorney was suspended for his failure to pay the costs of a bar discipline matter. This is an interesting and, I suspect, effective way to focus the attorney's attention on the costs obligation. In the District of Columbia, costs are not imposed on disciplined attorneys. To the contrary, D. C. will provide a prosecuted attorney with free transcripts of the proceedings in aid of any appeal or exception. This particular cost is shared by members of the Bar, as it is financed through annual dues. Indeed, in D.C., the bar charges no costs and provides a free transcript to disbarred lawyers who petition (and petition and petition again) for reinstatement. (Mike Frisch)
New Bar Exam Procedure In North Dakota
North Dakota has announced that applicants for admission who take the July 2008 bar examination may do so on their personal computer. The bar will use the Examsoft program and applicants must follow the registration procedures set forth in the linked notice. This applies to the essay portion of the test. (Mike Frisch)
Tulane and Its Boom Renaissance in the News...In Boston
Posted by Alan Childress
Two weeks ago, Jeff linked his hometown paper The Boston Globe for an article on Brian Leiter and his kingmaking skills. Now I am a fan of the Globe for another reason: last week's article on the boom in applications and quality students at Tulane just a couple years after the numbers and enthusiasm were tamped. In the undergraduate college, this is led by New Englanders who care:
Drawing strong interest from students across the country who joined recovery efforts in high school, Tulane has seen its applications double this year from 17,000 to 34,000, a remarkable increase for an established institution that Tulane officials believe may be the largest jump in the country this year. Overwhelmed by the volume, the university stopped accepting applications in January, or thousands more probably would have applied.
Tulane's newfound level of popularity sprang from an aggressive post-Katrina marketing campaign that sought to let families know that New Orleans was safe, and let students know the city needed their help. The overwhelming response from civic-minded students has elevated Tulane's national stature and selectivity, and marked a major milestone in the school's, and the city's, recovery. . . .New England, and Massachusetts in particular, are leading the resurgence. In the six New England states, applications soared from 809 to 1,963 over the past year. The number of Massachusetts students applying rose from 372 to 983, after plummeting the two years after Katrina.
Not a legal profession case, but the Maryland Court of Appeals issued an opinion today that refused to grant comity to a Pakistani talaq in a matter between two citizens of Pakistan living in Maryland. The court concluded that the procedure violated the due process rights of the wife. The wife had filed for a limited divorce and, in response, the husband went to the Embassy in Washington, D.C. to perform the talaq. The court held:
...a procedure that permits a man (and only him unless he agrees otherwise) to evade a divorce action begun in this State by rushing to the embassy of a country recognizing talaq and, without notice to his wife, perform "I divorce thee..." three times and thus summarily terminate the marriage and deprive his wife of marital property, confers insufficient due process to his wife.
"A Rather Preposterous Story"
The North Carolina Court of Appeals overturned sanctions imposed on a defendant in a civil case who had failed to appear at his scheduled deposition. The court below had imposed attorney's fees, court reporter fees and struck two affirmative defenses. The story of the hapless defendant:
The parties began discovery, and defendant received notice of a deposition scheduled for 5 April 2007. Defendant failed to appear at the deposition, which was to be held at plaintiffs' attorneys' offices in Washington, North Carolina. Defendant was aware of the deposition and the time for which it was scheduled. Indeed, he spoke on the telephone to a legal assistant at his attorneys' offices that morning, who reminded him of the event and asked him to arrive early to speak with his lawyer. However, although defendant left his house in Williamston, North Carolina, more than sufficiently early to arrive in time for the deposition, defendant claims to have gotten lost in Washington, with which he was unfamiliar. Defendant could not remember the street address for the offices and had neglected to bring a letter that his attorneys sent him with the pertinent information. Defendant compounded his mistake by searching for a sign with the name of his own attorneys' firm, rather than that of plaintiffs'. Unsurprisingly, none of the people that defendant approached in Washington had heard of defendant's attorneys' firm, which was located in Williamston. Eventually, defendant gave up in his search and returned home. He did not realize his mistake until he received a call from his attorneys, inquiring as to the reason for his absence. Defendant promptly offered to reschedule the deposition at plaintiffs' convenience, and his attorneys wrote to plaintiffs' lawyers, offering to pay for both the attorneys' and court reporters' time and expenses and to reschedule the deposition.
The court majority concluded that:
Given defendant's attempts to cure his failure to attend his deposition, his affidavit explaining the misunderstanding, which was presented to the trial court at hearing, and the severity of the sanctions imposed, we find that the trial court's sanctions were "manifestly unsupported by reason.” Id. (quotations and citations omitted). Accordingly, we reverse and vacate that part of the trial court's order striking defendant's pleadings relating to the affirmative defenses of contributory negligence and gross contributory negligence. The remaining sanction, payment of attorneys' fees and court reporter costs, is affirmed.
A dissent would affirm the strike of the affirmative defenses:
At the hearing on the motion for sanctions, defendant recounted a rather preposterous story of having forgotten the name and address of plaintiff's law firm; thus, he sought directions to his own lawyer's office. No one in Washington, N.C., knew how to direct him to his lawyer's office, which is not surprising since his attorney is from Greensboro. He never called his lawyer and eventually went home.
The dissent would defer to the trial court's discretion and affirm as all sanctions imposed. (Mike Frisch)
May 5, 2008
Nephewtism Not Prohibited
The South Carolina Advisory Committee on Standards of Judicial Conduct opines that a circuit court judge may employ a nephew as a judicial clerk. The code provision that defines and prohibits the hiring of "family members" does not include the children of the judge's siblings. (Mike Frisch)
Judge May Not Serve As Trustee When Trust Is In Litigation
The Massachusetts Committee on Judicial Ethics recently issued an opinion concluding that a newly-appointed judge may not continue to serve as the trustee for a trust that is involved in litigation:
The committee is of the opinion...that your continued service as a trustee of this trust while it is in litigation would be inconsistent with your obligations under Section 2A of the Code. Consequently, you should take such steps as are appropriate to remove yourself as a trustee promptly and should instruct whoever is handling the litigation to seek a stay of proceedings in the appropriate court to permit you to do so. While the committee recognizes your desire to engage a successor trustee who will be agreeable to the beneficiaries, if you are unable to engage an agreeable successor promptly, and if a provision of the trust contains a mechanism for appointment of a successor trustee when a willing successor cannot be found, you should utilize that provision to produce your successor.
Interestingly, the request for an opinion was in the form of an email. (Mike Frisch)
Under The Influence
The South Carolina Supreme Court ordered a one-year definite suspension of an attorney found in contempt in a civil matter for violating an order compelling discovery responses and bouncing a check tendered to pay court-ordered attorney's fees. He also failed to inform the client of a trial date. Things were made far worse when:
...while before Judge Baxley at the June 19, 2003 Rule to Show Cause hearing, it appeared that Respondent was under the influence of alcohol or drugs. Upon inquiry by the court, Respondent denied being under the influence of any substance and denied having used any alcohol or drugs in the past seventy-two hours. The court then required Respondent to submit to an immediate urinalysis drug screening. The screening indicated the presence of cocaine in Respondent’s system. Upon learning of the results, Respondent admitted to the court that he had used cocaine within the previous seventy-two hours but denied being “under the influence.” The court found Respondent in direct criminal contempt for lying to the court about his use of cocaine and imposed a contempt sanction by sentencing Respondent to ninety days in the Horry County Detention Center to begin no later than June 25, 2003. However, the court allowed Respondent to avoid jail by enrolling in a drug treatment program with certain conditions. The court found Respondent’s conduct was having a detrimental effect on his clients, which the court believed to be the result of “a substance abuse problem that is destroying his life and legal practice and is certainly interfering with the administration of justice” and is “not isolated to this judge or this court.” Respondent initially entered a drug treatment program, but because he was unable to pay for the program, he failed to complete it. Respondent carried out his ninety-day sentence at the Horry County Detention Center.
In other matters, the attorney failed to pay a court reporter's bill, neglected a divorce and failed to comply with the final decision of the Fee Disputes Board. The sanction requires him to enter into a two-year monitoring contact with Lawyers Helping Lawyers, agree to random drug screens and make full restitution. (Mike Frisch)
Contempt Order Vacated
The Florida Third District Court of Appeal reversed and remanded a finding of direct criminal contempt of an attorney. The alleged false testimony at issue "did not have an obstructive effect" and the circuit court "did not have judicial knowledge of the falsity of the testimony..." The court instructed the circuit court below to vacate the contempt order. (Mike Frisch)
New York Judicial Ethics Opinions
There are a few interesting recent opinions from the New York Advisory Committee on Judicial Ethics. In one, the committee opines that a judge "may not engage in the 'business' of performing marriages not solicit requests for such services as a for-profit business would, or otherwise actively seek to be engaged in such activity." A second opinion concludes that a judge may be employed with the highway department in the jurisdiction where the judge serves as Town Justice, noted that a prior opinion approved a judge's work as a laborer for the highway department. A third opinion states that a judge is not obligated to report a fellow judge who advised that his wife's doctor served on a jury in a case in which the judge presided. (Mike Frisch)
More Severe Reciprocal Discipline
An attorney who had his license suspended for one year in Illinois was subjected to the more severe discipline of an indefinite suspension in Kansas. The court concluded that:
With respect to the discipline to be imposed, we have carefully reviewed the record and the recommendation of the panel. Although we would normally impose reciprocal discipline, as the Disciplinary Administrator recommended in this case, we believe the sanctions imposed by the Illinois Supreme Court and the Missouri Supreme Court were exceedingly lenient in light of the Illinois Hearing Panel's opinion that Respondent committed bank fraud. Our view of bank fraud and the Respondent's conduct as found in this complaint warrants more severe discipline. A majority of this court concurs with the hearing panel's recommendation for Respondent to be suspended indefinitely from the practice of law in the State of Kansas. A minority, however, would impose a harsher sanction, disbarment.
"An Inordinate Amount of Trouble"
An attorney who had failed to comply with legitimate demands for a response to bar complaint was suspended for six months by the New York Appellate Division for the Second Judicial Department. The attorney had noted "that any explanation he could offer for not responding would be meaningless since it was an obligation not fulfilled, and that severe family illnesses which included a heart attack and cancer surgery in October 2005, 'are excuses, and that is all they are.' "
The attorney had a "quite extensive" disciplinary history that included three Letters of Admonition and a Letter of Caution. Suspension was deemed appropriate because:
Notwithstanding the serious health problems which beset the respondent's family, his ultimate cooperation with the Grievance Committee, and his commendable candor, he has evinced an inability to learn from the numerous warnings issued to him by the Grievance Committee and has put the Grievance Committee to an inordinate amount of trouble. Under the totality of circumstances, the respondent is suspended from the practice of law for a period of six months.
May 4, 2008
Law, Accounting, Finance, & JD-MBAs
Posted by Jeff Lipshaw
Over at PrawfsBlawg, Adam Levitin (Georgetown, left) provoked a discussion on the value of the JD-MBA degree, as well as the general shortcomings of business law education. Let me throw in my two cents' worth.
We need to distinguish between the value of the skills and the value of the degrees. Whether the benefit justifies the cost is open to question, but it seems to me the M.B.A. skills have value to big deal - big firm lawyers, as well as to small business lawyers. The whole panoply of M.B.A. skills - accounting, finance, organizational design, marketing - are particularly helpful to lawyers who practice in-house, and who aspire to management as well as law. The M.B.A. skills are also helpful to lawyers who represent start-ups. I'm not sure about the entire panoply, but I think a basic grounding in business, and certainly in accounting, would be helpful to someone who is going to hang out a shingle and start a business practice wherever located.
My experience in large corporations is that the J.D. skills are also valuable to people in non-legal positions, but this is a place that the J.D. degree might make a difference. Moreover, I agree with one of the comments to the effect that we need to be careful about the elite school - elite firm bias. I suspect the J.D.-M.B.A. degree IS an asset in a limited number of elite openings - investment banking and high level consulting of the Bain-McKinsey-Booz type. I agree that the M.B.A. portion of the degree (qua degree) is not particularly valuable in the standard recruitment to big law.
I do think the J.D. degree is helpful to non-lawyers seeking to advance their careers in certain non-legal areas, but I recognize that's an empirical assertion founded on my experience, albeit anecdotal. Here's where we have to acknowledge the difference between those schools a huge percentage of whose graduates go on to big law or prestigious clerkships and those where that is not so. Human resources executives, environmental executives, purchasing (or as we say now, supply chain) people, compliance departments all overlap significantly with regulation, and I think the legal sheepskin does indeed make a difference in one's ability (a) to do the job, and (b) to distinguish oneself from one's peers in doing so. This may not be a critical consideration at Columbia, which apparently sent 75% of its grads to NLJ 250 firms, but it may be at a lot of other places.
Finally, accounting. Yes, there are areas of the law that will never really require that you understand the rudiments of accounting. But they do not include: trusts and estates, divorce, business litigation, antitrust counseling and litigation, mergers and acquisitions, small town general practice, white collar criminal prosecution and defense, personal (much less business) tax, and much much more. I used an otherwise fine (and well-regarded) casebook on sales in which the author, in his discussion of the lost profits measure of damages under UCC 2-708, confused the economic concept of fixed and variable costs with the accounting concept of direct and indirect costs. They aren't the same, and the lawyer who doesn't understand that is apt to do a disservice to his or her client someday.
More Controversial Faculty Decisions at Berkeley Nee Boalt Hall School of Law
Posted by Alan Childress
This blog would not be the first one to note the controversial name-change campaign at U.C. Berkeley's Law School. I got my first alum mail with just Berkeley Law on it last week -- Boalt no more. I wonder if the PR firm they paid tons of money to will in turn pay the creators of L.A. Law, so obviously their inspiration. If not, there will be north-south California controversy yet again. In any event, I just cannot see many of my former teachers there doing the Venus Butterfly.
Nor would this blog be the first to welcome the school's new faculty addition really listed on its website (left), a fellow named "Test Dummy." (Stories here, here, and here.) He is shown right in what is no doubt the world's worst set of law faculty photos. Dude, buy a suit.
But let me please be the first (I think) to call for Dr. Dummy's detenurization and firing (sort of like the take-the-badge-and-gun cliche of every bad cop movie). Now. I for one do not abide the inhumane legal position he took supporting the tragic Mercedes Benz quality control experiment of 2004. More of his fellow testers were kneecapped in that run of tests than in 30 years of intentional crashes. And don't get me started on his previous memos advising that it would be just dandy to (1) drive other testers around in a Smart Car, left, and (2) have Billy Joel and Toonces be the drivers for the 2001 test series. (Those two drivers intersect, coincidentally, at this fan site.) But I am sure Leiter and others will find a way to absolve Dummy for all his bad lawyering.
Actually the addition of Dr. Test Dummy to the Berkeley faculty was just following the tradition at that hallowed institution, akin to slices at Blondie's Pizza and used books at Moe's. Long ago, the inventor of the crash test dummy, Samuel Alderson, attended Berkeley for his PhD. Also following a tradition of sorts there, he went ABD for about 60 years. Me, just eight. There is something mystic in that pizza.
UPDATE (5/15/08): Crash test dummies in the Smart Car prove me wrong (above, #1) by performing well in videoed crash tests.