May 24, 2008
Dangerous, Not Unconventional
The Kansas Supreme Court imposed a one-year suspension, stayed in favor of three years of probation, in a matter brought to the attention of the Disciplinary Administrator by an insurer when proceeds due from a PIP payment were not forwarded to an insurer as required. The check had been signed without authorization and deposited in the attorney's escrow account. The bar's investigation led to charges and findings of failure to properly operate an escrow account and supervise non-lawyer employees. As to the misconduct, the court held:
Respondent asserts that her "system of monitoring her trust account . . . has been her practice for years and . . . has worked for her." Yet Respondent admits that her trust account was overdrawn, a result of "checks written based upon an assumption that checks given to Respondent for attorney's fees had been deposited into the account. Although the balance in Respondent's trust account fell below the amount of money that belonged to Farmers, that occurred only because Respondent did not know the check had been deposited."
The first part of Respondent's statement quoted above is an admission of a breach of her duty to properly hold and safeguard property held for clients and a third party. The second part of Respondent's statement makes no sense. If Respondent did not know a check had been deposited, that should have motivated her to make and/or sanction fewer and/or smaller withdrawals from her trust account rather than enough to overdraw it several times.
As to sanction:
With the exception of dishonesty or selfishness, we adopt the panel's findings on aggravating factors present in this case. In our view, Respondent knew or should have known that she was handling her trust account improperly, imperiling client funds and harming Farmers through delay. Her casual approach to trust account transactions and recordkeeping is unacceptable. And it is compounded by her disciplinary history, which includes a previous hearing panel's explicit admonition that she "seek counsel in the appropriate maintenance of an attorney's trust account."
On mitigating factors, we adopt the panel's findings. We note particularly that Respondent immediately and appropriately reacted to the Disciplinary Administrator's notice of the complaint letter from Farmers. Moreover, we observe that Respondent has practiced law for 26 years, often representing underserved clients in very serious matters, and she has never been disciplined for conduct implicating the quality of her representation.
In this situation, we regard a 1-year suspension from practice as necessary to impress upon Respondent the seriousness of her disregard for proper trust accounting and recordkeeping. Her approach is not harmlessly unconventional. It is dangerous to the interests of those who put their faith in her, as well as to her license to practice. The fact that Respondent's trust account has not caused more serious difficulties to this point has been a matter of grace, not design.
This being said, Respondent's many years of service to those who can afford to pay little or nothing in attorney fees, the other mitigating factors, and the benefit of the doubt we are willing to extend on the aggravator of dishonesty or selfishness counsel a certain flexibility. Respondent's service, praised in several letters of support from peers and community members, motivates us to suspend imposition of Respondent's 1-year suspension for a period of 3 years from the date of filing of this decision, provided Respondent complies to this Court's satisfaction with the...conditions [set out in the opinion].
There are two categories of people that regularly deal with lawyers in circumstances that involve the operation of the attorney's escrow account. In this case, the complainant is an insurance company. The other are third party medical providers who enter into assignment agreements with lawyers to guarantee payments out of litigation proceeds. Such complaints have a high likelihood of catching Bar Counsel's attention and, as here, may lead to a full dress review of escrow accounting. It is also worth noting that, unlike many clients, insurance companies and medical providers know how to find and use the services of Bar Counsel. (Mike Frisch)
Regan on Changing Organizational Culture and Ethics So They Work Together
Posted by Alan Childress
Milton Regan, Jr. (Georgetown), below left, has posted to SSRN Law & Soc'y: The Legal Profession his article, "Moral Intuitions and Organizational Culture," also in 51 St. Louis U. L.J. 941 (2007). His abstract begins:
Many efforts to understand and respond to a succession of corporate scandals over the last few years have underscored the importance of organizational culture in shaping the behavior of individuals. This focus reflects appreciation that even if an organization has adopted elaborate rules and policies designed to ensure legal compliance and ethical behavior, those pronouncements will be ineffective if other norms and incentives promote contrary conduct.
to the call for creating and sustaining an ethical culture in
organizations requires appreciating the subtle ways in which various
characteristics of an organization may work in tandem or at
cross-purposes in shaping behavior. The idea is to identify the
influences likely to be most important, analyze how people are apt to
respond to them, and revise them if necessary so that they create the
right kinds of incentives when individuals are deciding how to act.
This can be a tall order even if we assume that most behavior is the result of a deliberative process that weighs multiple risks and rewards. It‘s even more daunting if we accept the notion that conscious deliberation typically plays but a minor role in shaping behavior. A focus on what two scholars describe as "the unbearable automaticity of being" posits that most of a person's everyday life is determined not by conscious intentions and deliberate choices but by mental processes outside of conscious awareness.
In this article, I discuss a particular strand of research that is rooted in the study of non-conscious mental processes, and consider its implications for ethics and culture in the organizational setting. This is work on the process that we use to identify and respond to situations that raise what we think of as distinctly moral questions.
The remainder of the abstract appears after the jump.
The abstract continues:
A growing body of research suggests that a large portion of this process involves automatic non-conscious cognitive and emotional reactions rather than conscious deliberation. One way to think of these reactions is that they reflect reliance on moral intuitions. When such intuitions arise, we don‘t engage in moral reasoning in order to arrive at a conclusion. Instead, we do so in order to justify a conclusion that we‘ve already reached. In other words, moral conclusions precede, rather than follow, moral reasoning.
If this research accurately captures much of our moral experience, what does it suggest about what's necessary to foster an ethical organizational culture? At first blush, the implications seem unsettling. The non-conscious realm is commonly associated with irrational and arbitrary impulses, and morality often is characterized as the hard-won achievement of reason over these unruly forces. If most of our moral judgments are the product of non-conscious processes, how can we hope to understand, much less influence, our moral responses? Are moral reactions fundamentally inscrutable and beyond appeals to reason? If reason has no persuasive force, does appreciation of the non-conscious source of our moral judgments suggest that any effort to promote ethical conduct must rest on a crude behaviorism that manipulates penalties and rewards?
I believe that acknowledging the prominent role of non-conscious processes in shaping moral responses need not inevitably lead either to fatalism or Skinnerian behaviorism. Research has begun to shed light on how these processes operate. Related work has suggested how our moral responses may be rooted in human evolution. This perspective focuses on the ways in which our capacity for moral judgment is embedded in physical and mental processes that have provided an adaptive advantage in human evolution. These bodies of research contribute to a richer portrait of human cognition and behavior that can be valuable in thinking about how to promote ethical awareness and conduct.
As Owen Flanagan has put it, "seeing clearly the kinds of persons we are is a necessary condition for any productive ethical reflection." If there were such a thing as a normative theory of human movement, it would be futile if it exhorted us to fly. Efforts to create an organizational culture that encouraged people to fly would be doomed as well. In thinking about ethics, we need to have a sense of what lies between simply accommodating what we tend to do and demanding that we fly. My hope is that this article takes a small step in that direction.
May 24, 2008 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack
Law.com Inadvertently Explains to Recent College Graduates Why Culinary School Beats Law School As Next Phase In Life
Hit the Beach With Technology: Summertime gadgets help you escape -- or stay in touch -- with the firm. Its text starts: "Summer means vacation, but vacation means different things to different people."
No, it really shouldn't.
Reminds me of the first ads in bar journals, during the Reagan years, for the newfangled "pager" invention (on which I whined here): Lets a partner find you on a Friday night!
O-Tay! [Alan Childress]
May 23, 2008
The Indiana Supreme Court imposed a two-year ban on the pro hac vice admission of well-known Michigan attorney Geoffrey Fieger as a result of his failure to fully disclose ongoing disciplinary proceedings in an application for pro hac admission in Indiana. Fieger had inserted the word "formal" in his response, a modification that the court found did not prevent the application from being misleading. The court further found a violation of the duty to update such an application. (Mike Frisch)
Elefant Analogizes Some Law Billing Practices To Airlines Charging For Your Second Bag
Posted by Alan Childress
Carolyn Elefant at MyShingle is asking whether certain billing practices make lawyers look, to their clients, like airlines are looking now when they announce new charges for certain practices like checking your second piece of luggage or using unfavored ticketing methods. Her post is entitled Real Life Marketing Lesson: Are You Charging Clients Like American Airlines? It is not so much focused on the ethics of this -- she is not denying one may have spent some time doing the things she talks about -- as on the client relations aspect. Look for good comments on how to show the clients you respected them this way (by soloist Susan Carter Liebel), and Ed Poll's accepting her baggage analogy but wondering whether it is really just understandable "unbundling" by the airlines.
All I know is that the classic "unintended consequences of social action" in this case meant that I shoehorned my second bag into the USAir overhead bin last Friday and held everyone up for three minutes because I was not going to pay that $25. Sorry. I suspect many other customers did and will do the same. So is it really better for the airlines and passengers if normally-checked bags now get moved to the overheads? Do we not have overhead-bin-overcrowding already? Can you possibly force a bag into that hole without thinking of Ben Stiller arguing with the flight attendant with chopsticks in her hair in Meet The Parents?
Taking the cue from Carolyn here, I suspect that the new policies will not, long run, mean extra revenue to airlines but rather longer load times, more disagreements over acceptable carry-on, and increased frustration all around. If that does not lead to extra revenues and especially profits, what is the point? And she is saying: same goes for law billing.
ABA Offers Web/Phone CLE on June 4: "Ethical Issues in E-Discovery"
Counting as 1.5 ethics hours or more, and accessible remotely, the ABA course in Ethical Issues in E-Discovery (including Rule 26(f) conferences and using third-party vendors) is set for Wed., June 4, 2008, starting noon eastern time. [Alan Childress]
Private Tickler System
The Iowa Supreme Court suspended the license of an attorney with no possibility of reinstatement for one year. The attorney had a record of prior discipline that included a conflict of interest violation based on representing both parties in a marriage dissolution and unauthorized communication with a represented party. Here, the court found that the attorney had handled an appeal in a "deplorable" manner and had "used the clerk's office as [the attorney's] private tickler system." The attorney also had taken a probate fee prematurely and made a misrepresentation to a client in a bankruptcy matter.
The court considered the attorney's depression and attention deficit disorder as mitigation. The attorney must take and pass the MPRE as a condition of reinstatement. (Mike Frisch)
How Stupid Are You?
The Virginia State Bar Disciplinary Board revoked the license of a lawyer who also provided advice on land investments. The lawyer sold materials over the Internet regarding possible land investments. He then sought to sell additional materials to the buyer, leading to a dispute. The lawyer threatened to institute criminal charges as a result.
The recipient then retained counsel and advised the lawyer to cease direct communication with him. The lawyer continued sending emails to the buyer ("I don't care if you are represented by the Pope...Pay up or face imminent arrest" and "YOU ARE A THIEF...I'm a practicing lawyer in SIX jurisdictions, Federal and State. Your lawyer is giving you bad advice. Settle this or you will be arrested. I'm not kidding.") and also sent letters to retained counsel ("Lady, how stupid are you?"). A second buyer of land investment materials also was threatened by the lawyer.
The board found violations of Rule 3.4(i)(Virginia's rule prohibiting threatening criminal charges for advantage in a civil matter), 4.2 and 8.4. The lawyer had a prior sanction from Washington State for unauthorized practice stemming from the lawyer's Internet site. The lawyer did not participate in this disciplinary hearing. (Mike Frisch)
May 22, 2008
An attorney with a long history of bar disciplinary matters was reinstated in November 2001 on five years of supervised probation. In 2006, the Director (i.e. Bar Counsel) brought probation violation charges, alleging a failure to provide information in connection with the probation, failure to timely file income tax returns and his conviction for fifth degree assault. The Minnesota Supreme Court sustained the findings of a probation violation. The court found that the failures to provide information were not as aggravated as in the earlier bar cases("[t]he relationship between [the attorney] and the Director during [the attorney's] probation period was often strained, at best"). Further, the untimely tax filings are not as bad as failures to ever file and the attorney had no income during the period at issue. The court imposed public reprimand and a further year of unsupervised probation with a requirement that he satisfy a judgment arising from a Wisconsin disciplinary matter. He had previously complied with other financial obligations imposed as conditions of probation.
The assault? He punched a man at his son's basketball game. The court concludes that such conduct, unrelated to the practice of law, did not amount to an ethical violation. (Mike Frisch)
No Celebrity Waiter Judges In Florida
The Florida Supreme Court has adopted amendments to its Code of Judicial Conduct in a manner designed to allow judges a broader ability to receive public recognition and participate in charity fund raising events. The commentary suggests that the amendments make it clear that a judge may pass a collection plate and help out in a low key manner with a charitable event but could not be advertised as a "celebrity waiter." A dissent suggests that the amendments are unnecessary and ill-advised as they might encourage a subtle pressure on litigants to curry favor with the judge's favorite charity. (Mike Frisch)
Gillers on How Next Year Is Not The End of The Bush Presidency
In a classic satire piece two years ago in The Nation, NYU ethics prof Stephen Gillers explained how January 20, 2009 is not necessarily the end of the current term. "It depends on what the meaning of 'four years' is. The Constitution says the President 'shall hold his office during the term of four years.' It does not say 'only four years' or 'four years and not a day more.' " He might add that the literalist Justice Scalia could uphold that flexibility given the sloppy drafting. [Alan Childress]
Gallagher to Present at L&S on How IP Lawyers Do Their Work
There will be many good panels on the legal profession and ethics that are set to appear at Law & Society Montreal next week, about which Legal Ethics Forum posted extensive guiding comments, including John Steele's talk on retainer agreements. Also look for a paper to be presented May 29 by William T. Gallagher (Golden Gate, shown left as Clark Kent), reporting "the results of a study of the everyday lawyering practices of attorneys who enforce intellectual property rights in copyright and trademark cases." ..."perhaps over-enforce." Such devices as SLAPP suits and cease and desist letters will be considered. The presentation is Strategic Intellectual Property Litigation in Copyright and Trademark Cases.
Bill's panel on culture and IP practice also features the always-fascinating Susan Scafidi (SMU, visiting Fordham, shown right in always-apt pearls), whose blogging on culture and fashion including knock-offs [Counterfeit Chic] is widely read by both lawyers and fashionistas (Vogue-pawers and even accounting types who follow the big business of fashion production, marketing, and insignia). Scafidi authored the book Who Owns Culture? I wonder what her chic blog would say about my sister-in-law's dress design being knocked off by Forever 21...
The New York Appellate Division for the Third Judicial Department denied bar admission to an unnamed applicant in light of a past history that included a conviction (and jail sentence) for possession with intent to distribute LSD, leaving the scene of a property damage automobile accident, possession of marijuana and jumping a subway turnstile. Noting that the applicant had made efforts to address debt issues, the court concluded that admission was not warranted under the circumstances. The applicant had passed the bar examination.
The incidents recited above took place in 1995. There is no indication in the order whether the court might reconsider its decision at a future date. (Mike Frisch)
Flood on Global Implications of the UK's 2007 Professional Reforms
John Flood (Westminster, visting U. Miami Law), below right [not his peke, left] has posted to SSRN his study of the effect on (or conceptualization of) law firms, even outside England and Wales, raised by recent professional reforms there. The article is called "Will There Be Fallout from Clementi? The Global Repercussions for the Legal Profession after the UK Legal Services Act 2007." We previously posted here on John's work on global law firms and his teaching ethics in the U.S. He has posted on this very topic on his "RATS" blog, but may not see the irony that he likes pekes and calls his blog that. He also presented it at the April Georgetown U.L.C. conference that Mike noted here. See also John's interesting blog thoughts on visiting with a US law faculty while living at South Beach. Here now the abstract:
The paper presents the historical arguments that led to the Clementi review of the legal profession and its culmination in the Legal Services Act 2007. There were two strands: one based on consumerism (too many complaints about lawyers' services); the other based on a sustained investigation by the competition authorities into professions' restrictive practices (anti-competitive unless proved in the public interest). These led to the abandonment of traditional forms of organization for lawyers' practices (alternative business structures) and the imposition of a new regulatory structure for the profession (oversight and frontline regulators).
In the second part of the paper I examine the trends in lawyers' practices as currently pursued and as envisaged by the Act as aligned with our conceptions of professionalism. Using two hypotheticals: Tesco Law, and Goldman Sachs Skadden, I chart a move from professionalism to deskilling and proletarianization in the legal profession, not unlike that which existed in the 19th century.
This dystopian view, which is essentially a top down conception of the legal industry, is contrasted with a more optimistic view based on the changes in the idealization of careers and life as represented by Generation Y. This is augmented by the changing nature of work, ie, post-Fordist, within organizations which in a number of ways escapes control and measurement because the distinctions between production and consumption, work and leisure allied with distributed network forms of production blur the boundaries that we have taken for granted. In contrast to the socio-economic approaches, I argue that we must examine conceptions of career, inclusion and exclusion, vocation, and community in order to understand how the professions will adapt to the postmodern condition.
Come back to the states soon, John, and congratulations on a successful year of U.S. law teaching. See you at Law & Society Montreal? [Alan Childress]
Counsel Not Liable For Attorney's Fees
The Arkansas Court of Appeal-Division Three-- reversed a trial court order directing that counsel, rather than the client, be held liable to pay the opposing party's legal fees in a domestic relations case. The order had amended an earlier order and was held to be untimely under Arkansas rules of procedure. (Mike Frisch)
Giving Advice Establishes Attorney-Client Relationship
The New Jersey Advisory Committee on Professional Ethics opines that a non-profit trade association cannot disclaim the formation of an attorney-client relationship with persons who call in on a hot line for legal advice from an attorney that the association compensates for her time. The result is not affected by the adoption of RPC 6.5:
Inquirer represents a nonprofit trade association that wants to set up a legal hotline, staffed by attorneys, to provide short-term, limited legal services to its members, with no expectation of continued representation in the matter. The nonprofit association would compensate the attorneys on either a flat fee annual basis or an hourly rate for the services for its members. The attorneys would be paid by the association, and no formal conflict check would be done on receipt of an inquiry from an association member. Association members would be advised in writing that no attorney-client relationship arises, and any potential conflict of interest would be waived by the member unless the attorney providing the advice knows there is a conflict.
Inquirer expresses the view that ACPE Opinion 671, 133 N.J.L.J. 1370 (April 5, 1993), 2 N.J.L. 535 (April 5, 1993), does not apply to its inquiry due to the subsequent adoption of RPC 6.5. Opinion 671 expressly provides that an attorney-client relationship ordinarily arises during one-on-one discussions between a lawyer and a person seeking legal advice, and found that an organization cannot disclaim the attorney-client relationship. Opinion 671 further noted that organizations providing legal services to its members or beneficiaries, where the attorneys providing the advice are paid, ordinarily must adhere to the provisions of RPC 7.3(e)(4) and register with the Supreme Court.
The Committee concludes that RPC 6.5 does not supersede Opinion 671 and the Opinion is, in fact, fully applicable to this inquiry. RPC 6.5 provides that a lawyer who is participating in a program sponsored by a nonprofit organization or court by providing short-term limited legal services without an expectation of continued representation is not subject to strict application of RPC 1.7, RPC 1.9, and RPC 1.10. Specifically, a conflict arises under these Rules only when the lawyer knows that the representation of the client involves a conflict of interest, and conflicts are imputed to the firm only when the lawyer knows that another lawyer in his or her firm would be disqualified from representing the client. RPC 6.5(a)(1) and (2).
May 21, 2008
New Rules For Montana Judges
The Montana Supreme Court has requested comments on proposed new rules governing judicial conduct. The full text of the proposed Code of Judicial Conduct is appended to the court's order. (Mike Frisch)
Present Competence To Practice
The Oklahoma Supreme Court ordered the reinstatement of an attorney who had been suspended for competence and unauthorized practice problems. The court expressed some concern whether the petitioner had made a sufficient showing of present competence and ability to practice law. After reciting the efforts made to establish proof by clear and convincing evidence, the court concluded:
None of this evidence was contradicted or impeached. Clearly and convincingly, it justifies the conclusion that Petitioner has improved to the degree of competency required since her 1984 admission to practice in Oklahoma and particularly since her 1997 and 1999 Texas sufferings from inadequate supervision and training. The parties contend correctly that prior discipline does not preclude reinstatement, citing Matter of Reinstatement of Johnston, 2007 OK 46, 162 P.3d 922; they then submit that Petitioner "should not be disciplined twice for the previous acts by receiving a public reprimand and now by having her application for reinstatement denied based upon these same previous acts." Joint Brief, p. 9. Strictly speaking, a denial of reinstatement is not further discipline; however, under the circumstances and the record of this case, we think they have a point.
More Inflammatory Closing Argument
The New Jersey Appellate Division of the Superior Court reversed a conviction in a vehicular homicide case, in part because of the inflammatory closing argument by the prosecutor. The defense had not objected, but the court found plain error. The prosecutor had referred to the defendant as "drunk" and "blotto" in the absence of evidence establishing an inference of intoxication. The arguments that the court deemed improper are quoted in the opinion. (Mike Frisch)
Suffolk Offers LLC Conference Live and Via Webcast
Posted by Jeff LIpshaw
Suffolk University Law School is hosting "Limited Liability Companies at 20: Cutting Edge Issues," an all-day program on Friday, June 13, 2008, featuring such LLC luminaries as Larry Ribstein (Illinois, right - doesn't he look like the actor James Rebhorn, left?), Robert Keatinge (who graced Suffolk with a year-long visit in 2007-08), Daniel Kleinberger (William Mitchell), and Suffolk's own Carter Bishop.
If the idea of traveling, even to Suffolk's incomparable facility in the heart of downtown Boston, on Friday the 13th gives you the willies, you can still participate via webcast, courtesy of Suffolk's peripatetic Advanced Legal Studies office. Check it out!