May 27, 2008
No Lesser Sanction
A lawyer who was disbarred in Colorado last December for dishonest conduct was disbarred as reciprocal discipline by the Oklahoma Supreme Court. The lawyer's plea for lesser discipline in Oklahoma fell on deaf ears:
Rymer appears to advocate that he should not be disbarred in Oklahoma because of his lack of previous discipline in Oklahoma and Colorado, his alleged cooperation in the investigation against him, and the alleged unusual circumstances surrounding the Colorado proceedings. He further appears to advocate that this Court's order of discipline should be effective from the time that he voluntarily suspended himself from the practice of law in Colorado. Rymer's reasons for imposing a discipline less than disbarment and for making this Court's order effective retroactively are unconvincing.
Rymer's reasons? Is there a punster on the Oklahoma Supreme Court? (Mike Frisch)
Keep Up With Congress In Real-Time Via Twitter, and Track Bills
Posted by Alan Childress
Policy wonks and law watchers will appreciate the fact that all sorts of action on the floors of the House and the Senate will be blogged and tallied real-time via Twitter. (So is Downing Street, for that matter.) "Twitter is a free service that lets you keep in touch with people using the web, your phone, or IM." You join to be fed updates, yet are not pre-screened with a personality inventory like eHarmony does.
Track congressional bills (even physically track them and their stages, showing pushpins on a sky view of the Capitol) using the site Where A Bill.
Also, as mentioned last week, state legislative bills and proposals (for any or all states) can be tracked on this BillFinder site, with searching by subject matter, key words, or bill number. A useful tools for law professors and researchers. (HatTip to Richard at EE.)
New Blog on Career Development In Law Features Bar Exam Tips + Ideas For Summer Job Prep
Posted by Alan Childress
The one-month anniversary has arrived for the LPB blog devoted to hiring and law jobs: the Career & Professional Development Blog. Its main editors are CDO professionals Susan Gainen at Minnesota and Mina Jones Jefferson at Cincinnati, aided by a wealth of contributing editors from schools all over, including my colleague at Tulane, Carlos Davila-Caballero. The anniversary present for a month is a copy of that colorful parachute book, which should come out in a pop-up version.
Recent essential posts at C&PD Blog include 12 very good (and not necessarily obvious) tips for taking bar exams, such as rent a nearby hotel room, don't fret but don't discuss, and don't get banned (true!) for a ringing cellphone. The most non-obvious one, buried in #12, is to Drink Wine. Other useful posts:
(1) eight things one can do over the summer to prep for job hunts [including creating that 'elevator speech' of which Jeff wrote here, plus 'scrubbing' one's e-persona and odd vocabulary like right now],
(2) six myths of job hunting, and
(3) functional and aggressive ideas for using email to network.
Don't be literal. The speech should be about you, not the elevator. (Unless you're President of the Harvard Law Review, in which case BigLaw partner will enthusiastically follow your cue about the fascinating subject of elevators ... or "lifts" as they call them in other common law countries, ha ha ha.)
Say It With Conviction, Plus Ethics Updates From Maine
Posted by Alan Childress
It is standard advice in legal writing and advocacy to avoid wishy-washies like "I think" or "I believe." * That's also good advice when prepping one's speaking skills to be used in the job search and interview process (a related point was recently made by Susan Gainen of U. Minnesota, here, in tip #5). And it's an even more crucial tip in some professional contexts.
Sometimes to avoid conviction, one must assert matters with conviction. I was reminded of the above advice when reading a headline/blurb on the website of Maine's state bar:
AUGUSTA—Vassalboro man sentenced to 15 years in prison for attempted murder and burning down his sister’s home, says ‘I feel that I'm not guilty.’
I appreciate his honesty, if it was merely a sense he had. I saw this while lurking on Mainebar.org trying to find a job listing for interested readers: the NOBC site says that "Maine Seeks Assistant Bar Counsel," but I could not access the NOBC link without registering, and I could not find a job listing on the Maine bar website. I also could not find one at the Maine bar overseers site. Anyway, there may be a job in Augusta for someone interested in enforcing legal ethics.
Finally, the overseer site announces, "The Maine Task Force on Ethics 2000 has completed its Report and Recommendations on revisions to Maine Rules of Professional Conduct," and has this link to the proposals with comparisons to the existing rules.
* Advice so basic I could not find it while perusing the last 20 posts at Ray Ward's the (new) legal writer. But I did find the world's hardest vocabulary test and Ray's throw-down challenge to his writing readers to take a shot. I give Jeff Lipshaw five minutes before he tries it. Ray also reminds us, in this recent post, that "invective is rarely persuasive" in legal practice -- much like the point on civility and 'truth' that Jeff raised yesterday about academic discourse.
Twenty First Century Misconduct
An attorney was suspended for two years with supervision for one year on reinstatement by the West Virginia Supreme Court of Appeals. The attorney violated ethics rules "by repeatedly accessing the e-mail accounts of other attorneys, without their knowledge or permission, for over a two-year period." He had monitored the e-mail of his wife, an associate at a different firm than employed him, because he suspected an affair between his wife and her client. "Eventually...his curiosity got the better of him, and he began accessing the e-mail accounts of seven other [of his wife's firm] attorneys." The firm hired an expert to investigate when it suspected unauthorized access, leading to several accounts to which the attorney had access. The managing partner of the wife's firm filed an affidavit claiming that "the negative ramifications and stigma of [the] misconduct will be felt for many years."
In evaluating the misconduct and determining sanction, the court concluded:
In the instant matter, we are mindful of the mitigating factors presented by Respondent, including the unique circumstances which motivated his misconduct in the first place. However, there are also several aggravating factors which this Court cannot ignore or minimize. Though Respondent initially accessed his wife's OFN e-mail account with motives very personal to his marriage, his misconduct eventually became more rampant. Out of simple curiosity, he broke into the e-mail accounts of eight of his wife's unsuspecting co-workers on almost a daily basis for over a two-year period. He did not cease or disclose his actions until he learned OFN's computer experts were on the verge of discovering who was behind the unauthorized intrusions. Moreover, in addition to confidential personal information, Respondent viewed confidential financial information intended to be read exclusively by OFN partners. With regard to confidential client information, in one instance, his firm and OFN represented separate co-defendants which had interests adverse to each other because Respondent's client had an indemnity claim against OFN's client.Presently, there is no evidence that Respondent has used or misused the information he improperly accessed from OFN. Nevertheless, we must recognize that OFN has suffered negative consequences from Respondent's actions. Not only was OFN forced to expend valuable time and resources to investigate the matter, but it was also required to disclose the unfortunate events to its clients, opening itself up to potential lawsuits and professional embarrassment. Moreover, one is unable to predict or tangibly quantify the future impact of Respondent's misconduct on OFN or on Respondent's former law firm in terms of attracting new clients.
Finally, we recognize that with the widespread use of computer e-mail as an important method of communication between and among attorneys and their clients comes the potentiality that the communication might be improperly infiltrated. This Court does not take lightly the fact that, in this case, it was an attorney who repeatedly accessed the confidential e-mails of other attorneys without their knowledge or permission. Thus, the imposition of a suitable sanction in a case such as this is not exclusively dictated by what sanction would appropriately punish the offending attorney, but, just as importantly, this Court must ensure that the discipline imposed adequately serve as an effective deterrent to other attorneys, “to protect the public, to reassure it as to the reliability and integrity of attorneys and to safeguard its interest in the administration of justice.” Accordingly, based upon the foregoing, we are compelled to adopt the recommendation of discipline tendered by the Board. (footnotes and citations omitted)
A Waste Of Time And Effort
An attorney convicted of one count of misdemeanor insurance fraud was suspended in New York for six months "[f]ollowing a disciplinary hearing and agreement between Respondent and Disciplinary Counsel..." Unfortunately, he also was admitted in the District of Columbia. Ignoring the position of D.C. Bar Counsel, the Board on Professional Responsibility insisted on a full hearing (already done in New York) on the issues of whether the crime involved moral turpitude on its facts and the appropriate reciprocal discipline. The board thereafter took 36 pages and three opinions to reach the result that both parties had sought from the outset. One opinion in particular took Bar Counsel to task for its unwillingness to attempt to reinvent the wheel already created by the jurisdiction with primary authority and responsibility for the lawyer.
The D.C. Court of Appeals ended this silliness and imposed the reciprocal discipline of six months. The attorney was actually suspended for over two years while this wasteful, full dress review took place. As I get ready to pay my D.C. bar dues, it irritates me that such a large and increasing portion of those dues funds pointless proceedings. At least the recently adopted rules governing bar discipline will largely take the board out of the reciprocal discipline business. (Mike Frisch)
May 26, 2008
Can Law Study in China Help a U.S. or Other Foreign Lawyer Get a Job in China or Practice There?
That is the question Donald Clarke (GW Law) of Chinese Law Prof Blog has asked various sources. He has compiled the answers and considerations in a new PDF document he links and introduces in this post. LL.M. programs and other law study (usually in English) open to U.S. lawyers and others are considered. [Alan Childress]
Conflicts of Interest Within FBI By Pegging Mole Pay To Arrests?
Though the Minneapolis news story is not about legal ethics as such, the same perverse-incentive reasons we have conflict-of-interest rules in law may explain my horror in reading this blog report (can this be true?!) that the FBI is recruiting citizen-moles to infiltrate the Republican convention's protestors. And their pay depends on causing arrests.
See also this blog post, emphasizing the weird targeting of vegans at their "potlucks." One commenter there asks, Are vegans even allowed to throw eggs? [Alan Childress]
Trading for Maple Bats
Quizlaw and others are right to proclaim this the best headline of the weekend: Minor Leaguer Traded For 10 Bats. I am hoping that any new addition we may soon make at Legal Profession Blog is not just a subtle sign that I am about to be traded for a gallon of that mimeograph fluid we used in middle school, that smells so highly even when the whiff-buzz is just indirectly off the printed blue-word page. [Alan Childress]
Meet the Blogger!
Most of the time I write these posts beneath the rock out from under which I crawl to go about my daily duties. I'm in Ann Arbor for personal reasons, and every University of Michigan public space is locked down for Memorial Day, so I'm renting a table at the Espresso Royale on State Street for the eminently reasonable cost of a large skim latte.
If you happen to be in the neighborhood, stop by. I'm the guy with the red shirt, two-day beard, MacBook, and a copy of Ribstein on Unincorporated Business Entities lying on the table. The coffee is on me.
Civility and Truth
Posted by Jeff Lipshaw
The recent debate between Brian Leiter and Rick Hills about the honorary degree granted to Phyllis Schlafly at Washington University raised some interesting issues about the relationship between truth and civility. Given that when we take off our scholar hats and put on our teacher hats, we are training lawyers for whom civility in the profession is a long-standing issue (merely look at some of the You Tube deposition disasters for empirical evidence of this), I don't think it's merely an academic issue. (By the way, I thought Dan Markel's contribution was the best on the issue of civility; as to Schlafly, her views make my skin crawl, but I don't get the whole "honorary degree" thing anyway. UPDATE: Paul Horwitz has a post on this subject, and it is so sensible I wish I had written it.)
Brian Leiter made two statements that are troubling to me. First, he said, "[t]here is nothing wrong with dealing harshly with really bad arguments; that's precisely what one does if one is serious about ideas and about truth." Second, he observed that his opponent "made terrible arguments, and I demonstrated that they were, indeed, terrible. There was nothing impolite about it, unless you consider the truth impolite." Assuming "truth" resides not just in academic debate, but in courtrooms, board rooms, representative assemblies, neighborhoods, and families, presumably the pursuit of truth there would entitle one to deal with really bad arguments harshly and impolitely. My intuition says that's a recipe for disaster (having just had the annual meeting of our homeowners' association in which we discussed whether to remove the "speed bumps" from our little road). (Coincidentally, see, via Larry Solum, Joseph Singer's article "Normative Methods for Lawyers," which discusses the pragmatics of making normative argument that nevertheless respects both winners and losers.)
It's the invocation of "truth" that needs unpacking. One cannot really do justice to the issue in a blog post, but Leiter has written extensively on objectivity in morality, and I think it's fair to say he views moral or value issues to be capable of truth determination, i.e. that moral facts exist objectively (i.e. they are "mind-independent" and make a difference causally in the empirical world). According to Leiter, "what suffices for objectivity in evaluative matters is that we be able to subject our evaluative stances to reasoned discussion." ("Objectivity, Morality, and Adjudication" in Objectivity in Law and Morals.) [UPDATE: I take the correction in the comments - a better way to summarize the view is that if moral facts exist, they will only exist as part of the natural empirical world, and the closest analog to objective scientific inquiry is reasoned discussion.]
The source of my puzzlement about civility lies in the way I would evaluate the truth issue. At one end of the spectrum, some matters really are a matter of objective truth or falsity. Did Schlafly take or not take a particular position, or make a particular statement? At the other end, we are not talking about facts at all, but about values. "Should Washington University grant an honorary degree?" is not a question about facts or objects, but about the "ought." I believe there are values that are capable of reasoned determination, and they may well be universal, but they differ categorically from facts. Somewhere in the middle is what I would call categorization, which is neither a matter of objective fact, nor of values, but of the very difficult field of cognitive theory, namely how we process categories, models, metaphors, and judgment. The issue of rule-following (both inductive reasoning to determine the rule, and then what Kant called the determinant judgment to apply the rule to the next case) is neither a matter of empirical objectivity nor a question of the ought, but something else again. "Is Schlafly a bigot?" falls into that area. First we have to determine inductively (i.e. establish a rule) what a bigot is ("shew the children a game. . ."), not an easy task in itself (cf., "is Schlafly a Republican?"), and then make a judgment whether what Schlafly did qualifies her with the tag of bigot. We might even ask whether "is Schlafly a bigot?" is a very good question, or one we ought to ask. (If I'm what Leiter calls a "Non-Naturalist," I'm a very limited one, by the way. It's just that dealing with what I don't know and seems impossible to nail down is so humbling.)
I have a hard time seeing how any of these matters ought to be dealt with "harshly." Only the first kind of issue is really true or false, and dealing with it harshly has to do more with venting the venter's irritation than either teaching or correcting or debating. If one draws a line, and says that "really bad arguments" deserve incivility or impoliteness or harshness, then we are back to the objective/subjective judgment issue as to what constitutes a "really bad argument," as to which in most of these cases, reasonable people can disagree. As to values, I think civility is right up there, maybe even higher than honesty (when my daughter was three, she identified one of our friends, who was within earshot, as "that fat lady" which was totally honest, and understandable from a three year old, but uncivil if uttered by an adult). But if we blur the fact/value distinction, and make the determination of incivility a matter of truth, and incivility can be dealt with harshly (if one is serious about truth), then either harshness is civil, which seems intuitively wrong (as a matter of linguistic categorization) or I am permitted to violate my own values in order to promote precisely the value I am violating!
As I said, Dan Markel nailed this with the untranslatable reference to being menschy.