May 17, 2008
Classroom Internet Access and the "5 Whys"
Posted by Jeff Lipshaw
I considered giving this post an Onion-like title, something to the effect of "UNIVERSITY OF CHICAGO LAW SCHOOL PROPOSES LEAD DOME OVER HYDE PARK; DEAN LEVMORE DERIDES CITY-WIDE WIRELESS HOT SPOT AS 'ANTI-INTELLECTUAL.'" But Legal Profession Blog is a serious blog (the ABA Journal's blog regularly uses Mike Frisch's posts as source material!) So I'll try a moderately serious response.
As has been noted in the blogosphere over the last day or so, Chicago has decided to shut off wireless internet access to its classrooms. Ian Ayres applauds this move; Calvin Massey is skeptical. I tend to side with Calvin for the reasons he gives over at The Faculty Lounge, but I want to expand.
As Calvin notes, if the teaching is sub-par, students will find different ways of checking out. I have done the New York Times crossword regularly going nigh on thirty years, and it all started in the back row of the classrooms at Stanford Law School, courtesy of the Stanford Daily's syndicated use of the puzzle. I won't say which classes, but, trust me, there were some whose combination of turgid text and stultifying pedagogy earned my ennui many times over.
Insulating the classroom from the current iteration of technology is a piece of chewing gum in a crumbling dike. It's only a matter of time until there is universally available city-wide wireless access (I think Boston has been talking about it.) At which point, the construction of the lead dome will be necessary to avoid surfing unless the solution is indeed to start us on the road back to quill pens and inkwells by banning laptops in the classroom.
It seems to me that schools ought to be at least as forward-thinking as manufacturing companies in avoiding the quick fix in favor of getting at the root cause. In modern Japanese-developed lean manufacturing (kai-zen or continuous improvement), one principle used in analyzing the cause of defects is the "five whys": you don't truly get to the root cause of a problem unless you ask why, get an answer, and then ask why about the answer five times. Using the five whys here would tell us, I think, that we haven't solved the surfing problem by constructing a technology shield.
Wait a minute. Five whys. Gosh, that sounds almost . . . Socratic!
"Lone Avenging Champion" Charged
An assistant state's attorney for Macon County Illinois has been charged with ethical violations based upon allegedly improper closing argument in a capital case. The convictions of two defendants were reversed based on a finding of misconduct by the prosecutor. The arguments are quoted at length in the charging document. Some highlights (or lowlights):
A murder case is an unusually difficult type of case for the prosecution to prove because the defendant has killed the main prosecution witness. The deceased never gets to testify. The deceased never gets to tell his side of the story.
Then, who is left to take up his cause and try to speak for him? Often, it's a lone prosecutor, a stranger, who is left to champion the deceased. A solitary figure appears in Court bearing the burden of avenging another's death and presenting the truth to a jury and the Court. But, often time, justice only requires a solitary champion because truth and justice is not a load as heavy as it appears. The load has an unspeakable lightness."
As to the police witnesses:
I would suggest to you that you jurors lead sheltered lives. You stepped into a world, over a month ago, that to many of you never existed. You have no idea what kind of criminals and serious crime are lurking out there. There are dangerous people. There are mean streets. Not everyone lives in a peaceful neighborhood like you or has safe neighborhoods.
The police are often referred to as ‘the thin blue line'. Well, what does that mean, ‘the thin blue line'? The police are there to protect you from the likes of Kenneth Lovelace, Gregory Williams, Andre Eubanks, Sean Marshall, Timothy Glass, Franklin Small. Who do citizens call—citizens of this County call when they need assistance? Who do citizens call when someone is breaking into their house or assaulting them? The police do not call Kenneth Lovelace, Gregory Williams, Andre Eubanks, etc.
When you get up in the morning or your spouse gets up in the morning or a family member gets up in the morning and you go to work, are you risking your life to earn a paycheck? Are you putting your life on the line when you go to the office or your work? Yet, police-bashing seems to be a semi-popular sport until a citizen is in distress. Then, that same officer is expected to come to a citizen's salvation.
Well, who do citizens want to serve and protect them in times of need? I would submit they want officers like Shane Brandel and Dan Street and Jason Derbort.
Shane Brandel, you look at him, he looks like the boy who grew up next-door. The boy who grew up in the neighborhood who's finally an adult.
Dan Street. Here's a man who served 4 years in the United States Marine Corps and then continued his service with the Decatur Police Department. A reserved, deliberate, low-key man.
That's the advantage of a Jury Trial. You get to eyeball a witness when he testifies. You get to see him. You get to see how he reacts to questions, prosecution questions, defense questions. You get an idea for what kind of person you are dealing with.
I would suggest to you that Shane Brandel and Dan Street are part of the new breed of policeman. These are men who are educated, intelligent, and well-spoken. They're not the coarse, muscle-bound brutes who can't find any other way of making a living.
The court that reversed the conviction concluded:
we find that a chief goal of the prosecutor's closing argument in this case was to inflame the passions and prejudices of the jury, uniting the interests of the jurors in their own safety with that of the interests of the State in convicting defendant. Such a goal is improper. The prosecutor in this case was not content to rely upon the strength of the State's evidence. He did not make a few solitary improper remarks. Instead, he utilized improper remarks, some unsupported by the evidence, to advance an "us-versus-them" theme. This theme was built piece by piece and is evident from the very beginning as the prosecutor launched his closing by portraying himself as a lone avenging champion. The theme continued throughout the prosecutor's argument and was advanced over objection and in spite of admonishment. The prosecutor suggested that police efficiency and expedience were more important than accuracy, and thereby urged the jurors to consider their own safety in deliberation rather than deliberating only on the actual guilt or innocence of defendant.
We will keep an eye on this case, as it is rare to see significant discipline imposed for closing argument misconduct. The excerpts taken from the charging document are but examples of the comments that led to reversal of the convictions. (Mike Frisch)
The Illinois ARDC has filed charges against a member of the bar who is alleged to have omitted his dismissal from medical school for poor scholarship in his (successful) application for admission to the University of Chicago Law School. It is further alleged that he altered his law school transcript to secure a summer associate job with Sidley Austin LLP. The summer employment led to a position as an associate of the firm. Finally, he is alleged to have concealed information in his application for bar admission. (Mike Frisch)
A Failed Gamble
The Kansas Supreme Court indefinitely suspended an attorney with the right to apply for reinstatement after six months for a pattern of failure to file and pay federal income taxes, resulting in a misdemeanor criminal conviction. He asserted mitigation on the basis of "occupational and single episode depression" and suggested that the misconduct was not a pattern:
Lovelace takes exception to the hearing panel's finding with respect to "A Pattern of Misconduct," arguing the final hearing report does not reflect Lovelace's testimony that he made failed attempts to remedy his tax problems by playing the stock market. He apparently does not dispute, however, that clear and convincing evidence supports the hearing panel's finding that he engaged in a pattern of misconduct. Lovelace's testimony indicated that in 1998 or 1999, he lost $40,000 to $50,000 to stock market investing. Then in 2000, Lovelace attempted to play the stock market again but lost approximately triple the amount he had lost previously. At the hearing, however, Lovelace acknowledged that, if he had paid the large sums of money towards his taxes instead of playing the stock market, he would not be in this "situation."
The court also considered the argument of the Disciplinary Administrator that the attorney should be transferred to disability inactive status and conditioned reinstatement on satisfactory evidence of the attorney's mental and physical fitness to practice, if sought by the Administrator. (Mike Frisch)
May 16, 2008
Reciprocal discipline was imposed by the New York Appellate Division for the Second Judicial Department based on a six-month suspension from New Jersey. The attorney fought reciprocal discipline, alleging an infirmity of proof and complaining about the length of time between the misconduct and the New York discipline. The charges arose out of the attorney's representation of her 91 year old grandmother:
The respondent's testimony was devoted largely to background facts giving rise to the multiple court proceedings which took place pertaining to various family-owned companies and/or properties. The respondent attempted to show that the litigation was the product of intense intra-family disputes and that her New Jersey suspension was the outgrowth of that litigation. The respondent also, over objection, delved into the duration of the New Jersey grievance proceedings, which were commenced in 1997. She attempted to show that because the complaint had been hanging over her head for so long (i.e., 10 years), reciprocal discipline should not be imposed by this Court. In the alternative, the respondent attempted to show that the delay prejudiced her case. With regard to the respondent's defense that the imposition of reciprocal discipline by this Court would be unjust, she relied on the fact that the DEC had recommended only a reprimand, that she had already been reinstated in New Jersey, that she had paid all her attorney registration fees in New York and New Jersey, and that she was current, as well, with her Continuing Legal Education requirements.
As Alan has noted, representing relatives has its own special dangers. The attorney also had been convicted of 12 counts of failure to provide sustenance in violation of Agriculture and Markets Act Section 353, an unclassified misdemeanor. The disciplinary charges relating to the conviction were held in abeyance pending the outcome of the reciprocal matter. (Mike Frisch)
First Case Leads To Sanction
A lawyer who botched his first criminal case was suspended for a year and a day, with the period of suspension stayed in favor of two years probation, by order of the Louisiana Supreme Court. The lawyer had failed to file a statement of admission on behalf of the client that could have reduced the prison sentence. He was held in contempt for failing to timely review the presentence report. The lapses caused delay and exposed the client to the danger of an increased sentence. (Mike Frisch)
Protecting The Public
The Wisconsin Supreme Court suspended an attorney for six months for mishandling a series of cases. The attorney had previously been subject to a suspension for failure to fulfill CLE obligations and to respond to bar investigations. In explaining its rationale for the suspension, the court states:
The OLR said if Attorney Joset's license were suspended for a shorter period of time than six months there was no assurance she would be fit to resume practice since her communications with the OLR were sporadic at best, and in order to protect the public a six-month suspension would require her to affirmatively prove her fitness to practice law by successfully petitioning for reinstatement. The OLR also noted that in May of 2005 Attorney Joset had indicated she was finishing up on a limited number of cases and intended to leave the practice of law for a while in order to get some health issues resolved. The OLR said its more recent information was that Attorney Joset was actively teaching multiple courses at a local college relative to their paralegal degree program.
The Massachusetts Supreme Judicial Court seeks comments on proposed revisions of its Code of Judicial Conduct as it pertains to public comments by judges. If adopted, the new rule will (among other things) allow a judge greater freedom to respond to criticism and to participate in educational activities. The above link takes you to a red-lined version of the propsed rule. (Mike Frisch)
Suspension For Neglecting Criminal Appeals
The Ohio Supreme Court indefinitely suspended an attorney who had neglected a number of criminal appeals and had failed to refund unearned fees. The lawyer had initially responded to complaints--in one instance claiming health problems and that he had lost a draft brief in an electrical storm--but had not continued to cooperate as the complaints piled up. As a result, no mitigation evidence was presented to explain the lapses. He had previously been suspended for failure to pay court-ordered child support. (Mike Frisch)
May 15, 2008
On The McDonald Spit
A dispute between two attorneys who co-owned vacation property as tenants-in-common at a place on the McDonald Spit worked its way to a decision from the Alaska Supreme Court. The attorneys did not have a written agreement concerning their respective ownership rights. One of the partners wanted to build a guest cabin in a particular place "below the bluff." The other disagreed and felt the location was an unsafe place to build. He was proven correct when that cabin was destroyed. Thereafter, one partner built and used his own cabin while the other took over an existing cabin. The litigation was over the concept of "owelty" after the parties had partitioned their respective interests in the property and were unable to resolve their disagreement through mediation. (Mike Frisch)
AALS Section on Professional Responsibility: Spring 08 Newsletter
Through the good offices of it general editor, Randy Lee at Widener, and many others in the AALS Section on Professional Responsibility, here is their highly useful, newly printed section newsletter for spr. 2008: Download AALS-News.Spring2008.pdf . It includes case law and scholarship summaries, ethics rule changes in various states, section and school announcements, a message from the chair, and future symposia. Our blog and other fans of the section cannot thank them enough for letting us post it here. [Alan Childress]
Where There's A Will
The Indiana Supreme Court suspended an attorney for "at least three years" for a number of ethical violations in two matters. He had represented an elderly client who wished to name the lawyer as a beneficiary in his will. The lawyer had another lawyer friend draft the will, in which he was primary beneficiary and his son was contingent beneficiary. A week later, he sought to be named the guardian of the client, and was appointed. The client then retained other counsel and challenged the guardianship. The lawyer was an adverse party in that proceeding.
In a second matter, an incarcerated client told the lawyer about $20,000 that was not discovered in a search that had resulted in the seizure of 100 pounds of marijuana (as opposed to a hundred pounds of clay) and a substantial amount of cash. The attorney found the money and deposited it into his personal account. He arranged for the client to transfer ownership of his condo to pay legal fees. He later refused to return ownership to the client.
In imposing a sanction, the court noted prior discipline that included an 18 month suspension for filing a false federal tax return and a lack of recognition of wrongdoing. A dissent notes the same factors and would disbar:"it is hard to fashion an argument for the public that Respondent's behavior has been such that we might at some future date want, again, to tell clients they can entrust their dearest matters to him." A second dissent confesses error in voting not to disbar for the conviction and to reinstate. (Mike Frisch)
The Louisiana Attorney Disciplinary Board has recommended a suspension of one year, with all but three months suspended and unsupervised probation for nine months where an attorney had filed a defamation suit against his sister (and former client) and thereafter agreed to dismiss on conditions that included her not bringing further ethics complaints against him. He also sought a $15,000 penalty per future complaint.
The lawyer had represented his sister in a number of civil matters. She began filing bar grievances in 1994. No discipline was imposed as a result. She sought review of the dismissals to no avail. He filed suit in 2003 claiming, among other things, that the bar complaints were defamatory. The settlement proposals at issue here came after mediation had failed. The defamation claims were found to be frivolous and to have violated Rule 8.4(d) because of the "chilling effect" on the disciplinary process.
The Board concluded:
In this case, the Respondent has violated duties owed to the legal system and to his client, Ms. Raspanti. Notwithstanding the clear and unequivocal prohibition in Section 12(A), Respondent proceeded to file a defamation action against Ms. Raspanti based upon the complaints she filed with ODC relating to Respondent's alleged misconduct. Respondent's vigorously pursued his claim. He amended his suit three (3) times in an effort to establish his claims. Respondent refused to dismiss his defamation claims, despite opposing counsel's assertion that the claims were barred under Section 12(A). Ms. Raspanti was harmed by Respondent's actions as she was forced to defend the defamation claims. Moreover, Respondent's retaliatory action threatens to undermine the disciplinary system with its potential "chilling effect" upon a client's willingness to file a complaint with ODC. Aggravating factors include Respondent's refusal to acknowledge the wrongful nature of his conduct, lack of remorse, substantial experience in the practice of law, and indifference to making restitution or minimizing the harmful affects of his misconduct. Mitigating factors include no prior disciplinary record.
The Board further concluded that the hearing committee's proposed public reprimand was an insufficient sanction for the misconduct. (Mike Frisch)
May 14, 2008
Schindler's List Of Violations
I have recently discovered the California Bar Journal as a source of interesting disciplinary matters. Here's their summary of a recent disbarment of a lawyer located in Michigan for an array of serious ethical lapses:
In a default proceeding, the State Bar Court found that Schindler’s conduct in two client matters in Michigan, for which he was disciplined, warranted his disbarment here. In one matter, he violated 10 Michigan court rules and Rules of Professional Conduct and was suspended for nine months. They were the equivalent of three California rules: showing respect to the courts, moral turpitude and unauthorized practice.
While suspended for not paying Michigan bar dues, Schindler appeared at a hearing and told the court he was not suspended and that he had paid his dues. Because he had previously made a court appearance while suspended for non-payment, the court continued the hearing and ordered Schindler to provide a copy of his dues receipt and a letter from the bar stating that he was licensed to practice. He did not do so and paid his dues four days later.
He then told the Michigan Attorney Grievance Commission that he had called the court to say he had complied with its orders when in fact he had not paid his dues.
In the second matter, Schindler was charged with misconduct in nine separate counts. Three involved his failure to participate in the Michigan bar’s investigation of his misconduct. The remaining cases addressed misconduct involving clients. For example, he did not file a lawsuit or refund a $500 retainer to one client.
He misappropriated $12,500 from a couple he represented in foreclosure proceedings. They lost their home. A probate client who loaned Schindler $10,000 obtained a default judgment against him when he did not repay the loan. He abandoned another client who hired him to handle a child custody matter. Although he filed a motion in that matter, he did no further work, even though the client was facing jail time.
In recommending his disbarment, Judge Richard Platel pointed to Schindler’s lies to both the Michigan grievance commission and his clients as well as his misappropriation and acts of moral turpitude. The misconduct findings, Platel wrote, “clearly support disbarment.”
It is also worth noting that many of the California cases use the "moral turpitude" label that most jurisdictions have abandoned. We still consider moral turpitude in the District of Columbia due to a statute that mandates disbarment for a criminal conviction involving moral turpitude, as we discussed in the Scooter Libby D. C. disbarment case. (Mike Frisch)
Boston Herald Apologizes For Wrong Spygate Story on Rams' Taping
You let [Belichick] slip away... You've done worse than let [Belichick] slip away, you've got people feeling sorry for him, I didn't think that was possible. In a conspiracy like this, you build from the outer edges and you go step by step, if you shoot too high and miss, everyone feels more secure. You've set the investigation back months.
But I am infuriated that with all the ethics investigations by Congress that could be done, Arlen Specter intends to pursue this one, after the NFL has already issued its punishment. At least he is known for his unimpeachable work on the Warren Commission; given the NFL's new stance against long hair down the back obscuring players' numbers [to hide defensive signal receivers???], I can already imagine Belichick coming up with the "magic mullet" theory to explain everything to Specter's satisfaction. [Alan Childress]
New Edition Book of ABA's Model Rules Is Announced
In an email sent around today, the American Bar Association announced its publication of the 2008 Edition of the Model Rules of Professional Conduct, with the MR Comments included, for $19.95 (or $14.95 for section members, and also discounted for student members).
It is the "centennial edition" because: "On August 27, 1908, at a meeting in Seattle, Washington, the American Bar Association adopted the Canons of Professional Ethics, the first set of model standards of ethical conduct for lawyers nationwide."
I am assigning this one for my "The Legal Profession" ethics class in the fall (with a full casebook too, of course, that also discusses many of the pre-2002 MR and also the Model Code), because it is quite cheap for the students and has most of what I intend to use from a rules supplement anyway.
Miracle Whip Makes A Great Proxy Demographic
I grew up on Miracle Whip. Miracle Whip on sandwiches. Miracle Whip on bananas, called "a salad." On peanut butter. On peanut butter and banana sandwiches. It tastes (I eventually realized) actually vile, despite being a combination of two normally-fantastic paired food groups--not-fully-liquefied fat, and sugar. I propose, though, that MSNBC start using its consumers as a demographic less in-your-face than the ones they use now to chart the die-hard Hillary supporters. Or CNN could break out pie charts of how Hillary just killed with the Michael Bolton/Kenny G subpopulation, though this hardly separates them from MSNBC if in fact those performers are the musical equivalent of Miracle Whip. Maybe we should just junk all racial and gender groupings and just admit that those who clap along on the on-rhythm vote for Hillary and those who clap on the off-rhythm vote for Barack.
You know, it is quite possible for Democrats who happen to be white males to support Obama, just as it is a fact, lost on the pundits, that many many supporters of Hillary Clinton are from all over the sweety fat spectrum. I have not seen this much segregated media profiling since those market-targeted McDonald's commercials. [Alan Childress]
A Poor Choice Of Words
From the California Bar Journal comes the following story:
The State Bar Court found that Torres violated one of the probation conditions imposed on him in an earlier disciplinary case by failing to file five quarterly probation reports and that he committed acts of moral turpitude when he deliberately engaged in the unauthorized practice of law.
Torres originally was disciplined in 2000 for committing acts of moral turpitude by harassing a client and inflicting emotional distress on her. In that matter, a review department opinion painted “a sordid picture of an attorney who maliciously and gratuitously oppressed, harassed and intentionally inflicted emotional distress on a female client,” wrote Judge Pat McElroy, who recommended Torres’ disbarment.
McElroy also found that Torres engaged in multiple acts of misconduct, engaged in the unauthorized practice of law while on probation and engaged in abusive conduct, calling one bar employee a “fat bitch” and another a “f______ a______.”
There was no evidence of mitigating circumstances in the record.
Law Firm Marketing
A section of the District of Columbia Bar is sponsoring a session on law firm marketing on May 20. The blurb from the bar's web page states:
The program is premised on the growing number of law firms that are starting to see the long-term benefits of tapping into their alumni network and maintaining good relations with attorneys who leave. Law firms realize the importance of having well-placed alumni who can help recruit for and promote their firms as well as provide opportunities for business referrals.
Participants of this program will learn about what law firms are doing to assist and stay connected to their alumni at all career stages—associates who do not make partner, associates who choose to practice law in another environment, partners who no longer fit in the firm’s long-term plans, and attorneys who pursue alternative career paths.
The Indiana Supreme Court held that the Court of Appeals properly concluded that an excess insurer may not bring an action for legal malpractice against the insured's attorneys: "Emphasizing the paramount importance of a lawyer's duties of client loyalty and maintaining client confidentiality, the court [of appeals] considers Indiana decisions concerning the doctrine of equitable subrogation and the prohibtion against assignment of legal claims...We find the analysis and conclusion of the Court of Appeals to be sound and proper."
A dissent would allow the insurer to bring the action "without access to any confidential client information of any kind whatsoever. But I would not close the courthouse door to an insurance company that is willling and able to do so. " (Mike Frisch)