May 31, 2008
Anonymous Help OK
A Judicial Ethics Advisory Committee opinion from Florida opines that a judge may make a financial contribution to defray the expenses of the campaign of a child for student government office at a state university. However, any such contribution must be made anonymously:
The Inquiring Judge states that the contribution would be used solely to defray the costs of the student government candidate’s election effort; nevertheless, the potential exists for the candidate to solicit additional contributions by impermissibly exploiting the Inquiring Judge’s judicial position. Therefore, before contributing financially to the student government candidate’s election effort, the Inquiring Judge must take reasonable steps to ensure that the judge’s identity will not be released. Otherwise, the prestige of the judiciary could be injected into the student government candidate’s fundraising activity.
May 30, 2008
Abandonment Of Practice Leads To Permanent Disbarment
The Louisiana Supreme Court permanently disbarred an attorney who had abandoned his law practice and moved out of state, leaving in his wake 19 client complaints that primarily involved taking fees and rendering no services. The attorney also had failed to participate in and respond to the disciplinary process. The court held that ethical violations could be found where the victim-client was not the complainant and did not press the misconduct claims. (Mike Frisch)
Mississippi Rule Change
The Mississippi Supreme Court has amended its rules of bar discipline relating to a reveresed criminal conviction. Previously, an attorney was immediately reinstated upon reversal. Now, such an attorney may seek reinstatement. In a nice turn of phrase, the court's clerk "shall spread this Order upon the minutes of the Court..."
A dissent concludes that the court should retain the discretion to immediately reinstate in appropriate circumstances: "I believe the majority has addressed one problem, and invited another." The court should be able "to immediately reinstate attorneys who are victims of obvious wrongful prosecution and conviction." (Mike Frisch)
Chicago CLE June 13 on Ethics for Government Lawyers
Celebrate Friday the 13th, June 2008, in Chicago with nearly 4 hours of MCLE ethics credit taught in skit-and-discussion format, by the Illinois State Bar. It is Ethical Considerations for Government Lawyers: "The program will consist of various scenarios, portrayed by the panelists, and depicting complex ethical dilemmas confronted by public sector attorneys. Each skit will be followed by a discussion of the ethical issues posed...." The entire program costs only $65.
Downstate, in Springfield the same day, try Corporate Legal Ethics. But there will be no mention of the city's "Fissionator 1952 Slow-Fission Reactor, [which] is poor and badly maintained, largely due to owner Montgomery Burns' miserliness," and raises critical ethics issues for corporate deciders like Waylon Smithers, Jr., shown right all happy before the backdating scandal and his investing some of Mr. Burns' fortune into subprime paper. Other than that lapse, the program seems fine, offers 4 hours, and is very affordable.
Neither Illinois program covers the ethics of leaving a kid alone at home while doing a Winona Ryder at the local Kohl's, but Mike thinks that's problematic nonetheless.
The Illinois ARDC has filed charges against a bar member as a result of a criminal conviction. It is alleged that the lawyer left a seven year old child home alone and went on a shoplifting spree at Kohl's Department Store. According to the complaint:
While inside Kohl's, Respondent placed in a bag a bottle of perfume, several items of children's clothing, and a massage cushion that was the property of Kohl's, and that had a total retail value of $479.99. Respondent then exited Kohl's after circumventing security sensors located at the store exit with the intent of not paying Kohl's for the merchandise.
The convictions were for misdemeanor retail theft and misdemeanor endangering the life or health of a child. The attorney pleaded guilty to both charges. (Mike Frisch)
Perils Of Partnership
An Arizona bar discipline case that involved charges against a lawyer who had gone into practice with a classmate at the College of Law at Arizona State University may serve as a cautionary tale. The two partners had been friends for thirty years and partners for fifteen years and were each fifty percent shareholders of the firm. One was a crook; the other was not. Bad Partner confessed to Good Partner and a paralegal that he had taken entrusted funds to support a gambling addiction. The confession was motivated by the unraveling of Bad Partner's scheme. Good Partner immediately froze the firm's trust account and money market accounts and reported the incident to the State Bar. The thefts, from money market accounts, involved a tad under $3 million. Bad Partner consented to disbarment.
Disciplinary charges were then brought against Good Partner. A hearing officer found that each partner assumed responsibility for balancing ledgers and monitoring the accounts of their clients. Bad Partner was always first in the office to see incoming mail and kept the incriminatory records in a locked credenza. Good Partner consented to findings of trust account violations and failure to make reasonable efforts to have measures in place to give reasonable assurance that all firm lawyers complied with ethical obligations. The Arizona Supreme Court imposed public censure and two-years probation with an assessment of his office procedures, a trust accounting course and periodic review of his trust account management. (Mike Frisch)
May 29, 2008
Employing A Suspended Lawyer
The Louisiana Supreme Court has adopted a new provision of its unauthorized practice rule that governs attorneys who employ suspended attorneys under circumstances where the employing lawyer "knows or reasonably should know" of the status of the sanctioned lawyer. Under the prior rule (which is unchanged), no disbarred lawyer may be so employed. The rule also had and still requires that the employer notify the Office of Disciplinary Counsel of the arrangement and file registrstion forms. The employing attorney must prohibit access to trust funds by such persons and must notify the ODC if the employment terminates.
The new aspect of the rule is that it now also applies to employment of lawyers on disability inactive status. (Mike Frisch)
A Conflict Of Interest
The Maryland Court of Appeals disbarred a lawyer who had continued to practice after his decertification for failure to pay the annual Maryland client security fund assessment. Also, the attorney had been arrested as a passenger in a car from which marijuana, cocaine and a weapon had been seized. After the charges against the lawyer were nolle prossed, he entered his appearence as counsel for a charged defendant in the same incident. The court found the representation to involve a prohibited conflict of interest. The lawyer defaulted in the bar discipline case. (Mike Frisch)
Just Say No, Even To A Partner
As noted in a recent report in the ABA Journal, the profession is trending toward admission to practice on a conditional basis where there is evidence of past substance abuse, financial issues or other reasons to admit the applicant subject to a period of monitoring or supervision. The idea is that, after a period of time, the conditions would be lifted based on a reasonable assurance that the attorney is at no greater risk of an ethical lapse than any other bar member.
Arizona is a jurisdiction that may admit an attorney subject to conditions. A Hearing Officer's report in a matter involving a violation of conditions imposed notes that the attorney was required on admission to enter a four-year theraputic contract with a condition "to completely abstain from using alcohol, other drugs, or any other mood-altering chemicals, for four years." The attorney later failed a biological fluid test. In the bar proceedings, he "admitted that he drank a shot of tequila given to him by a partner in the law firm where he worked during a Christmas party, and the next day drank 2 or 3 beers at a football game." The Disciplinary Commission has recommended that the conditional admission be converted into disciplinary probation on conditions that include sobriety. (Mike Frisch)
Clement To Join Georgetown Law Faculty
Solicitor General Paul Clement will assume a position as visiting professor and senior fellow of the Supreme Court Institute at Georgetown University Law Center. Georgetown Law released an announcement of General Clement's appointment today. (Mike Frisch)
My Two Cents
Let me add my welcome to Bill Henderson as he joins us at Legal Profession Blog. Bill and I have something in common other than an interest in legal ethics-- an undergraduate degree from Case Western Reserve University. We all look forward to his contributions to this effort. (Mike Frisch)
My Welcome, Too
Thanks for joining our blog, Bill, and I also look forward to hearing your two presentations on the legal profession (with Marc Galanter and Andrew Morriss) this week at Law & Society Montreal. Here is the SSRN link to his important new article, with Galanter, forthcoming in Stanford Law Review volume 60, entitled "The Elastic Tournament: The Second Transformation of the Big Law Firm."
One of Bill's many scholarly contributions to the field was recently noted by John Steele in comments at Legal Ethics Forum about this week's conference: "Bill Henderson has been instrumental in creating some sort of affiliation group within L&S to address empirical questions about the legal profession, and it's that group that is spearheading all the [noted legal profession] panels." Welcome to LPB. Henderson shown right, Jeff would say, as if in a Talk to Chuck ad. [Alan Childress]
Bill Henderson Joins Legal Profession Blog
Posted by Jeff Lipshaw
Mike, Alan and I are thrilled to announce that Bill Henderson is joining us as a co-editor. Not only is Bill one of legal academia's pre-eminent empiricists (in which capacity he is better known to the blogosphere as one of the editors of Empirical Law Studies Blog), but he is, at least in my mind, the leading empirical scholar on legal profession issues. Combined with Mike's powerhouse reporting on disciplinary and professional responsibility issues (as recognized by the ABA Journal and the Wall Street Journal blogs) and Alan's expertise in comparative legal systems and ethics, this really becomes the clearinghouse for issues in the legal profession.
Study of legal education and the profession is fraught with the possibility (and the reality) of social, political, and cultural predispositions. Whether social science can ever be objective in the manner of the physical sciences is a fascinating issue (but for another time and place), but Bill brings to the party a wonderful combination of empirical technique and open-mindedness. Bill looks rigorously at market trends, including patterns of lawyer mobility, the relationship between profitability and associate satisfaction, the economic geography of large law firms, and attrition rates of female and minority attorneys. He has explored the relationship between labor markets and the annual U.S. News & World Report law school rankings.
I've had a chance to work with Bill just a little in connection with his Law Firms Working Group, a joint initiative of the Indiana Law and the American Bar Foundation. In conjunction with other Indiana law faculty, Bill is developing The Legal Profession, a new course which explores how different practice settings (e.g., corporate practice versus criminal defense versus government lawyers) influence the moral and ethical duties of lawyers. Bill is also a research associate with the Law School Survey of Student Engagement (LSSSE).
Bill has been a member of the IU-Bloomington Law faculty since 2003. He received his B.A. from Case Western Reserve in 1997, and his J.D. from the University of Chicago (where he was the Comment Editor of the Law Review) in 2001. More importantly, anybody who has met Bill knows he is one of the genuinely good people in this business.
Please join us in welcoming Bill and in awaiting some great stuff!
Lawyers With Convictions
The Ohio Supreme Court imposed indefinite suspensions today in two matters involving serious criminal violations unrelated to the practice of law. In one case, an attorney with a prior record of discipline for "unprofessional, undignified, and discourteous conduct in separate incidents before two common pleas judges" went to a strip bar. He "became involved in a physical altercation with six people in the parking lot" and "pointed a .45 caliber Glock pistol with a laser sight at all six people, one at a time." He was convicted of carrying a concealed weapon and six misdemeanor counts of aggrravated menacing.
The second case (which I have not been able to open and link) involved conduct summarized as follows on the court's web page:
[The attorney] has been indefinitely suspended from practice for violations of state attorney discipline rules arising from his convictions on two felony charges for attempting to arrange a sexual encounter with an underage girl. [He] has been under an interim suspension since January 2006, when the Supreme Court was notified of his convictions on felony counts of compelling prostitution and possession of criminal tools.
"Why I Hate Lawyers"
A Hearing Officer recommended that a petition for reinstatement to the Arizona Bar be denied. There are interesting aspects to both the underlying 1999 disbarment and this reinstatement proceeding. The disbarment arose from the attorney's representation of a client charged with manslaughter and aggravated assault. He "asserted a theory of 'accelerated alcohol absorption following trauma'...presented no evidence in support of the theory and fabricated identities of physicians whose fictional studies supposedly supported the theory." He thereafter refused to acknowledge wrongdoing and was found to be a "disgrace to the profession."
His claims to have gained insight into the misconduct were rejected as "unconvincing at best." He had practiced law after disbarment. Worst of all, he "co-authored a book called 'A License to Steal: Why I Hate Lawyers," in which he described himself as a retired attorney who had fought the system. In this book, [he] denigrates lawyers, the courts and the profession in general." There is no information on the web page of final action on the recommendation, which was filed in February 2005. (Mike Frisch)
May 28, 2008
No Fonzie But No Discipline
Like a kid with a new toy, I have been taking a look at the recent bar discipline cases in Arizona. I am struck in my cursory and preliminary review to see that it appears the vast majority of cases are either settled by consent, subject to board and court review, or decided by default. Alan's post to the Beer Ruse case is worth reading. I think that there may be a lot of incentive in Arizona to take a non-suspensory deal rather than contest a matter and possibly get suspended. The Beer Ruse case may have been triable as an exercise of zealousness within the bounds of the law (think of the many schemes one may have participated in to secure a difficult service of process) but was likely not worth the risk.
Sometimes the simplest of mistakes can get one in a lot of trouble. In this case, [the attorney] made a scrivener's error in a fee agreement...after his client decided not to acknowledge the error, [the attorney] (at worst) had a lapse in judgment and embarked on a fee dispute that leads us to this point. Any lapse in judgment was not an ethical violation, however, and this matter should be dismissed.
The hearing officer found that the representation was conducted in a diligent manner and brought the underlying case to a satisfactory conclusion. Also rejected was the contention that the client "was offended by certain e-mails that [the attorney] occasionally sent out to an e-mail distribution group...that he believes are humorous" and that the client's reaction was a basis for discipline. The attorney is "also a humorist who has published two books of humor." He felt badly about sending the e-mails and, according to the report: "He should."
The hearing officer found that the attorney "lost his cool...[b]ut at no time did his conduct violate an ethical rule." (Mike Frisch)
Beer Ruse Leads To Sanction
In an effort to find interesting or informative bar discipline matters, we often stumble on bar web pages that provide easy access to disciplinary reports. The web page of Arizona bar matters has a case decided in January in which the Disciplinary Commission had approved a consent disposition in a matter arising out of the lawyer's representation of a defendant charged with first degree murder.
The attorney wished to serve two Native American witnesses and learned that they were attending a Halloween dance on the Fort McDowell Indian Reservation. After several unsucessful attempts at service and as the trial "rapidly approached," the lawyer and her law clerk concocted a "ruse" to serve the witnesses by creating a ficticious coupon for a ficticious beer: "Zepher Lager." One witness was served while filling out contact information for a free Zepher Lager at a later date. To make matters worse, the event was part of Alcohol Awareness Night on the reservation, although the attorney was unaware of that fact. The hearing officer noted that "Members of...the tribe who learned of Respondent's ruse were embarrassed and offended."
The Arizona Supreme Court placed the attorney on probation until she completes the Ethics Enhancement Program, "which shall be completed in one year." (Mike Frisch)
Confidentiality Provisions Inapplicable
In a case involving the revocation of a nursing license, the Oregon Court of Appeals held that confidentiality provisions relating to such proceedings do not deprive the accused of an opportunity to review the files of the investigation or to cross-examine witnesses in the proceeding.
The Court held:
Given the text, context, and manifest purpose of the statutory scheme as a whole, we conclude that the legislature did not intend the requirements that the board "keep confidential" and "not disclose to the public" any information obtained in the course of its investigation of an applicant or licensee to limit the board's disclosure of that information to the applicant or licensee in the course of a contested case hearing. Rather, in light of its apparent objective, an applicant or licensee who is facing a disciplinary sanction in a contested case proceeding is not, for the purposes of that statute, a member of "the public."
The D.C. Board on Professional Responsibility has recommended disbarment as reciprocal discipline of a lawyer disbarred in Maryland state and federal courts. The attorney had been convicted of misprison of felony arising from his role as in-house counsel to an immigration services provider located in Virginia. He became aware of forged signatures (his own as well as clients) on documents as well as other information suggesting fraud on the INS. He thereafter "took at least two steps to conceal the crime" and made false statements to the Department of Labor. One interesting procedural aspect reflected in the board's decision is that "by agreement of the parties and in the interests of judicial ecomony, a joint hearing was held" in the state and federal matters, presided over by a Maryland Circuit Court and federal District Court judge. (Mike Frisch)
May 27, 2008
New Free Podcast Series "Transitioning from One-L to Summer Legal Work"
Posted by Jeff Lipshaw
Law students, it's time to clean up, put on the suits, and go to work. And Suffolk University Law School's acclaimed legal research and writing program now has just the iPod content you need for those commutes into the office.
Called "Transitioning from One-L to Summer Legal Work," this iTunes-available series contains 19 podcasts, each by a different legal writing professor from around the country, and all available free of charge. Each podcast offers another piece of "real world" advice, like how to interact with support staff, send an e-mail to a partner, use LexisNexis in a cost-effective way and behave at a firm social event. The series is available on Suffolk Law's iTunes U site.
The podcast series is the brainchild of Suffolk Professors Gabriel Teninbaum (left) and Kathleen Elliott Vinson (right, the director of Suffolk's Legal Practice Skills program, and who introduces the series via video). Suffolk's Dean Fred Aman not only provides an introductory podcast, but in his second life as an accomplished jazz drummer, he provides the musical background you hear in each segment of the series. (Fred took the sticks for one number at Suffolk's student black-tie end of year celebration, the Barristers' Ball, and it was sublime!)
For this series, even I'd put up with a little earspill.