Saturday, June 7, 2008
As reported by the new (and affiliated) International Law Prof Blog (per Mark Wojcik), hearty congratulations are in order for Wash U law professor Leila Sadat (who is also a Tulane law grad),
shown left. She will be the next president of the International Law Students Association. ILSA is the group responsible for, among other activities, running the Jessup moot court competitions. It will also hold an extensive conference (for students and others) on Oct. 2-4, 2008, at Vermont Law School, "Understanding Genocide."
If tradition means anything, Wojcik hints, Sadat will soon be appearing on The Daily Show with Jon Stewart. Also, Wojcik notes, Sadat will be the first woman to hold the position at ILSA.
My school, Tulane, has also been well represented by the student-officers of ILSA. The current student president, for example, is our own Robert Magouirk. Congratulations, all.
One of the difficulties that I encountered as a disciplinary prosecutor related to the complaint-driven nature of the process. Bar Counsel as a general proposition does not go looking for problems in a particular attorney's practice (with the exception of random audits of trust accounts). Rather, it responds to the complaints that come in the door. Often, Bar Counsel is well into a prosecution when a new complaint or series of complaints appear. Do you press on in the old case or wait for the new case to catch up?
A case decided by the Kansas Supreme Court exemplifies the problem. The lawyer initially was the subject of two complaints; one involved a missed statute of limitations, the other a failure to provide information to an insurer with a subrogation interest. The lawyer also failed to cooperate in the disciplinary process. Eventually, a hearing panel accepted and recommended favorably on a probation plan as the appropriate disposition.
Charges in the above matter were filed in October 2004 and argued before the court in October 2006. At oral argument, the court was advised by the Disciplinary Administrator that "further problems" with the attorney were being investigated. Additional charges were filed in March 2007, involving a complaint that related to the attorney's operation of his escrow account. He did not have the required records, blaming a computer crash. To date, he cannot fully account for the funds in the account. According to the Disciplinary Administrator:
"This disciplinary case is highly unusual. The respondent has had money in his trust account for a number of years for which he could not identify the ownership. The respondent was afforded every opportunity by the panel hearing his case to identify and distribute those funds. The respondent failed to do so. To date, no proof has been provided by the respondent that all funds have been distributed from his trust account. The respondent is not capable or fit to practice law based on the findings made by the panel in this case. The panel's recommendation of indefinite suspension should be accepted by this court."
The court held the probation recommendation until there was a resolution of the second case. It then agreed that an indefinite suspension was the appropriate resolution of all the matters.
A related issue involves an ongoing prosecution that Bar Counsel thinks will result in disbarment. As new cases come in, its tempting to simply hold them for reinstatement purposes, as you cannot get consecutive disbarments. You may be left holding the bag (or being accused of lack of diligence) when the case is over and a significantly lesser sanction has been imposed. (Mike Frisch)
Friday, June 6, 2008
Posted by Alan Childress
That writer would be Nelle Harper Lee -- we southerners tend to go by our middle names, or by two names [President Clinton should have been Billy Jeff]. And the lawyer would be Atticus Finch. If you have another nomination of greatest literary lawyer that comes close, bring it on, in comments. But your efforts to get the author to discuss Atticus, Jem, or Boo will fail. She allows the words she has already written to speak for themselves. My brother Mark Childress once joined the quixotic crowd trying to snag the interview, and wrote in Looking for Harper Lee:
I learned that a friend of a friend was in touch with her and wrote what I thought was a very nice letter, asking if she'd grant me a few minutes on the phone or submit to an interview in writing. In a few weeks my letter came back with "Hell No" printed in green ink across the top.
Some years later, though, when I wrote a novel of my own, I mailed a copy to Miss Alice Lee, Nelle's older sister. (Miss Alice had done some legal work for my father when we lived in Monroeville, and I shamelessly traded on that connection.) I tried to explain in my letter just how much To Kill a Mockingbird meant to me, how it had inspired me to write my own book.
One day a white envelope landed in my mailbox, addressed in the same open, feminine hand I remembered from the autographed copy at Miss Wanda's house. A four-page handwritten letter from Nelle Harper Lee, it brought kind words about my own work. Her voice, clear and warm and familiar, rose up like a lovely perfume from the pages. I'll never receive a letter that gives me more pleasure.
That was when I gave up trying to meet Harper Lee.
Meanwhile, her earliest writings do live on, digitized, thanks to the special library collections of the University of Alabama (a great university, educator of Harper Lee, Mark, and me [and Forrest Gump]). The library has posted on some of the author's pre-novelist humor-mag musings while she was a law student. The post was picked up and expanded on by Drexel's Dan Filler over at The Faculty Lounge (HatTip to ATL).
Her plans at the time? The school paper Crimson White quoted her: "As for literary aspirations she says, 'I shall probably write a book some day. They all do.' " Dan sums up, "Surely an understatement for the ages."
Maybe Entertainment Tonight has an inside source in the Lee household to get an update.
Reader and philosopher Patrick O'Donnell forwarded us this headline and link from his local paper, the Los Angeles Times: Judge orders chronically late lawyer jailed in Compton. And here is the story as seen in the online ABA Journal: "A criminal defense lawyer with a history of tardiness and missing court dates was tossed in jail on Monday when he showed up 35 minutes late for court wearing a rumpled suit and no tie." Convenient, since you aren't allowed a tie in jail. But jail for two days?
Thanks for the heads-up, Patrick (who I believe once said that he does not own a tie). [Alan Childress]
Adopting the recommendation of the Attorney Disciplinary Board, the Supreme Court of Louisiana imposed a fully-deferred 90 day suspension in a case involving a lawyer who had engaged in a sexual relationship with a client involved in divorce and child custody litigation. The suspended sanction was deemed appropriate because the relationship was "clearly consensual" and the "result of mutual attraction." While there was the possibility of harm, the court concluded that there was no actual damage to the client's position in the domestic matter. The lawyer had self-reported the misconduct. (Mike Frisch)
A petition for reinstatement was rejected by the Mississippi Supreme Court despite the support of the Bar. The petitioner had been suspended for three consecutive 18 month periods. He had moved to Texas and provided testimony as to his moral redemption and rediscovery of his love for the law. The court wasn't buying: the petitioner's "actions contradict his words by his unwillingness to be forthright." The court also had some pointed criticism for its own regulatory regime: it is "obvious the Bar has passively accepted the testimony of [petitioner] without question or investigation." (Mike Frisch)
A county court judge was publicly reprimanded by the Mississippi Supreme Court for misconduct in his handling of a series of landlord-tenant matters. He had ex parte communications with a tenant and had become involved in the matter by actions off the bench. He also denied possession of premises to a landlord who was entitled to such relief. As a result, the landlord was required to initiate a second suit for possession. The judge had previously been reprimanded for a different species of judicial misconduct (not specified in the opinion). Further, the court expressed concern that he had "explanations and excuses for every act, and denials for most." The court rejected the suggestion that the judge's relative inexperience at the time of the misconduct was a mitigating factor, as judges are expected to be learned in the law. (Mike Frisch)
The Iowa Supreme Court "respectfully" rejected the public censure recommendation of its Attorney Disciplinary Board and suspended a lawyer with no possibility of reinstatement for six months. The charges involved the lawyer's operation of his escrow account and dealings with his law partner. In defense of charges relating to his handling of settlement proceeds, the lawyer offered an affidavit of his client averring that the client preferred to receive the proceeds in cash. Nonetheless:
[The client's] preference to receive his funds in cash did not vitiate [the lawyer's] duty under the [escrow] rules to deposit the settlement check in a trust account and properly account for them.
The court concluded that the violation was more than technical and that the lawyer had failed to maintain required records. The lawyer had also engaged in dishonest conduct vis-a-vis his law partner by depositing fees into his personal account.
The legal conclusion that duties to safeguard client property cannot be waived or forgiven by the client is a sound one. We had a case in the District of Columbia that (correctly, in my view) held that a client's retroactive approval of an unauthorized use of client funds did not defeat a charge of misappropriation. (Mike Frisch)
The Delaware Supreme Court disbarred an attorney who has never been admitted to practice in Delaware for unauthorized practice in estate planning matters and violation of a cease-and-desist order that had been entered in connection with such practice. The court concluded that it had jurisdiction over non-admitted attorneys who engage in Delaware practice. The court sustained an objection of the Office of Disciplinary Counsel to the Disciplinary Board's consideration of a colloquy at oral argument as substantive evidence. The attorney had conceded the misconduct but had sought a lesser sanction. (Mike Frisch)
The Supreme Judicial Court of Maine has denied the petition of Husson College School of Law (which has not yet opened its doors) for permission to have its graduates sit for the Maine bar examination. While recognizing the need for an institution that would assist in serving the legal needs of central and northern Maine, the court concluded that the lack of accreditation of the new school required denial of the petition. Accreditation cannot be addressed until the law school is in operation. (Mike Frisch)
Thursday, June 5, 2008
The New York Appellate Division for the First Judicial Department upheld an award of $50,000 in compensatory damages against Starbucks, but also affirmed the reduction of the $250,000 award for future suffering. The evidence:
Plaintiff was injured when, after ordering a cup of coffee, defendant's employee slid the cup across the counter toward plaintiff causing it to fall over and spill on her left foot. The coffee was between 195 and 205 degrees and caused a second-degree burn, which resulted in permanent nerve damage, leading plaintiff to sometimes experience numbness and a burning sensation in her left foot.
The web page of the Hawai'i Supreme Court has an announcement advertising the position of Chief Disciplinary Counsel. The position requires that the person appointed either be a member of the state bar or eligible to get admitted. (Mike Frisch)
The Oregon Supreme Court ordered a two-year suspension of an attorney based on findings of misconduct in two of three charged matters. The attorney had charged a fee for representation in a social security matter where court approval of the fee was required. His defense that his bill was only for informational purposes was rejected:
There is no indication on any bill that the SSA matter billing was for informational purposes only or that the accused did not expect the Millers to pay the charges for the SSA matter. In June 2003, the accused sent Miller a summary statement with separate pages for each matter. On the page for the SSA matter, the summary statement states, "Balance Now Due $638.15." The summary statement for the dissolution matter similarly states, "Balance Now Due" and the total amount due includes fees for the SSA matter entries that were listed under the dissolution matter in earlier bills. The later bills set out the total balance from the prior bill, indicate the amount subtracted for "payments received" and the amount added for "current charges" -- including those for the SSA matter. The bills identify the resulting number as the "Balance Now Due." We find that the accused charged Miller for SSA work.
In the other matter where misconduct was found:
The accused, while suspended from the practice of law, was working as a legal assistant for another attorney, Todd, on a dissolution matter for Albright, who had retained the accused prior to his suspension. The trial panel found that Todd's office charged Albright's credit card $7,000 for services rendered, that those services had been rendered, and that Albright had authorized that charge. Albright later terminated Todd's legal services, challenged the fee, and filed a Bar complaint. In response to the challenge to the fee, the accused -- by then practicing again after the expiration of his suspension -- prepared an affidavit concerning the services and the fee. He then prepared and sent Albright a bill charging her a fee for the time spent preparing and editing that affidavit. The trial panel concluded that such a charge was an excessive fee because this court has held that an attorney may not charge a client for time spent in a fee dispute.
The sanction was influenced by the attorney's record of prior discipline. (Mike Frisch)
In a case where an estate had sued former attorneys under the Arkansas Deceptive Trade Practices Act ("ADTPA") based on a breach of the covenant of good faith and fair dealing, the Arkansas Supreme Court affirmed the circuit court dismissal order. The decedent had retained attorney Snoops to prosecute a medical malpractice claim. The suit was dismissed with prejudice because Snoops was not authorized to practice in Arkansas (his law firm was located Oklahoma). The allegations that Snoops lied about his bar status and "engag[ed] in other nefarious conduct" did not "fall within the conduct regulated by the ADTPA." Unauthorized practice is regulated by the judiciary rather than by enactments of the legislature. Further, "this court has never recognized a cause of action for failure to act in good faith." (Mike Frisch)
The New York Court of Appeals removed a Niagara Falls city court judge from office for misconduct in presiding over domestic violence court cases. On the day in question, he had a docket of 70 scheduled hearings. He handled the first 30 in routine fashion. Then, at 10am, "a cellphone or other similar device rang in the back of the courtroom." When no one fessed up, he directed court officers to locate the device and ordered that no one leave the courtroom. The device was never located.
The judge then summoned each subsequent defendant--"34 in all"-- questioned each about the cell phone issue, and revoked their bonds. He then questioned 11 defendants who he had already released, revoked their releases on recognizence and ordered bail. Only one had an attorney present. The court here upheld the recommendation for removal from the bench:
By indiscriminately committing into custody 46 defendants, petitioner deprived them of their liberty without due process, exhibited insenstivity, indifference and a callousness so reproachable that his continued presence on the bench cannot be tolerated...it is ironic that petitioner displayed the very attributes by which he accused and summarily punished each defendant. Significantly, petitioner had more than 46 chances to correct himself and failed to do so.
When a defendant so treated protested, the judge acknowledged "You're right, it ain't right. Ain't right at all." (Mike Frisch)
Wednesday, June 4, 2008
The Illinois ARDC has filed a complaint alleging dishonest billing practices against an attorney who represented indigent respondents in juvenile justice and child protection matters. For the first half of 2006, the accused allegedly sought payments totaling $350,000, claiming he had worked over 20 hours a day on 90 different days. Many days he claimed to have worked more than 24 hours in a single day-- with the most "productive" day being March 15, 2005--a 40 hour day that included 14.5 hours of in-court time. Beware the Ides of March. (Mike Frisch)
Fifth Circuit Allows Some Sanctions Even Though Parties' Settlement 'Precluded' Them (And The Court Now Publicly Releases Oral Arguments)
Posted by Alan Childress
Here is a useful summary from yesterday's Fifth Circuit Civil News Daily Update, written by its editor Bob McKnight who allowed me to quote it in full:
Fleming & Associates v. Newby & Tittle Defendants, No. 07-20277 (5th Cir. May 30, 2008) (Smith, Prado and Ludlum (W.D. Tex.)): The district court sanctioned the plaintiffs' lawyers in connection with the filing of an amended expert witness report the day before the expert's deposition, but the parties settled their litigation before entry of an order setting a fee-based sanction. Even though the defendants expressly informed the court that the settlement precluded them from collecting on whatever sanction might be awarded, the sanction respondents were ordered to pay about $15K to the defendants. Holding: The Court vacated only the monetary component of the sanction. "[A]lthough compensatory sanctions may be bargained away by the parties, the court's right to sanction parties for misconduct remains," so mootness had not overcome all aspects of the sanctions order, and the respondents were not entitled to have it vacated entirely. On the merits, the Court readily found that the district court did not abuse its discretion in finding that the respondents' handling of the amended expert witness report was problematic under FRCP 16(f). (Appealed from S.D. Texas. [Opinion linked here.])
UPDATE: The Civil News also reports today that the Fifth Circuit now posts [here] their actual oral arguments online (starting with late May 08 arguments), in a Windows Media format. Even attorney names can be searched. I would add that those preparing for argument may wish that judges' names could be searched, but the same effect is achieved with a little cross-referencing within the court's website using case names or numbers.
Tuesday, June 3, 2008
Posted by Alan Childress
Thanks to lawyers-in-media follower Dean Kelly Lynn Anders at Washburn, we have these two sighting updates, one I am less interested in than the other. Can you guess which?
First, Kelly writes "Remember Miranda?" and she does not mean the right to remain fabulous:
I thought I would take a quick break from our final exam period to mention something for the Blog. The film, “Sex and the City: The Movie,” will be released in the US on May 30, but premiered in the UK on May 12. The “first review” is available at The Times. Despite the two-star rating, I think true SATC fans will be excited to see it. The original series debuted on HBO in 1998 and ran for six seasons, so it seems rather fitting to have the film released on the 10th anniversary of the TV show. As you may recall, SATC featured a lawyer in the quartet: Miranda Hobbes. (See HBO site.)
Apologies to Kelly that I quoted her a bit late, but it is just in time for there to be plenty of other negative reviews she could have cited. For another SATC viewpoint, including red carpet news that no one else would notice, see sharp-eyed Susan Scafidi (Fordham) at her Counterfeit Chic blog in this post; see also her interesting [copyright trivia re YSL vs. Polo] review of the traveling Yves St. Laurent exhibit here. Susan's trendy LV pet is shown right.
Second, Kelly writes "The Incredible...Lawyer" though oddly it is not about me:
How is grading coming along? I’m not a big fan of “The Incredible Hulk,” but I am a fan of Ed Norton and thought I would propose something for the Blog. The film will be released in mid-June, and I was surprised to learn that (1) Norton turned down the role in the 2003 film and (2) his father is an attorney. Additional interesting trivia is available at IMDB. For true diehard Hulk fans, there was the 1989 release, “The Trial of the Incredible Hulk,” in which Dr. David Banner’s lawyer is none other than superhero, Daredevil. Details are available here. Apparently, Hulk creator Stan Lee has a cameo as the foreman of the jury in a dream sequence of the 1989 film; this was Lee’s first appearance in a film adaptation of his work, which would later become a tradition. That film was directed by the original TV Banner, Bill Bixby (who majored in pre-law at Berkeley). Imagining the Hulk as a lawyer gives new meaning to the old TV line, “Mr. McGee, don’t make me angry. You wouldn’t like me when I’m angry.” (smiles)
Nice attorney trivia, Kelly, thanks. And to answer your question, as of this morning, I turned in all my grades. I am also a huge fan of Edward Norton and thought of him this weekend in Montreal, because of his great performance in that thief movie with De Niro, and of course the lawyer movie Primal Fear.
An Illinois Hearing Board has recommended a 21 month suspension of an attorney who, in representing a client in a hazardous waste mater, made a series of false statements to his client and others to generate more fees for himself and engaged in other forms of billing dishonesty. The attorney had prior big firm experience before setting up his own practice. There were great fluctuations in his yearly income. After a lengthy description of the findings of misconduct, the hearing board concluded:
In addition to Respondent’s fraudulent billing, we must also consider the fact that he misrepresented the status of the Wastex litigation and exaggerated the severity of INX’s involvement in order to justify his billings to INX. While we have not found any fee cases involving similar misrepresentations, we note that attorneys are routinely disciplined for making misrepresentations regarding the status or progress of cases in the context of concealing other types of misconduct, such as neglect or misappropriation of funds. In re Winn (1984), 103 Ill.2d 334, 469 N.E.2d 198, the attorney was censured for neglecting three client matters and making several misrepresentations to his clients to cover up his neglect...In the present case Respondent’s repeated misrepresentations and omissions were much more serious in that they extended not only to his client, but to two other entities and were part of a pattern to conceal the true nature of the case and his false billings.
The hearing board held nine days of hearings beginning on April 17, 2006 and concluding on January 29, 2008. As to the credibility of the accused attorney, it concluded:
Respondent testified at length and, while he admitted many of the factual allegations of the complaint, he denied engaging in any misconduct. In assessing his credibility, we note that he appeared to be a highly skilled attorney who was anxious to provide detailed explanations of his conduct. Indeed, we were often awed by the precise and organized manner in which he recalled events and thought processes which occurred over ten years ago. We cannot help but note, however, that Respondent’s meticulous recitations and excellent recall stand in sharp contrast to his claims, with respect to certain allegations of the Complaint, of a faulty memory, disorganization, or lack of attention to detail. That dichotomy did not boost his credibility.
Further, at times we felt bombarded with nonessential facts which did more to obscure the bigger picture than to clarify it.
As to sanction (and somewhat difficult to reconcile with their credibility finding), the hearing board finds little likelihood of future misconduct:
In fashioning a meaningful recommendation for discipline in this case, we bear in mind the purposes of the disciplinary proceedings. After observing and listening to Respondent, we have formed the opinion that he will not repeat any dishonest or reckless behavior and therefore, we are more concerned with maintaining the integrity of the profession than with any future risk to the public. Protecting the reputation of the profession is a responsibility that we take very seriously in this type of case, however, because attorneys who over-bill their clients promote the false belief that fee inflation is endemic in the legal profession. A substantial suspension is necessary to dispel that belief, and to deter other attorneys from engaging in similar practices.
Having reviewed the misconduct, as well as the mitigating and aggravating circumstances and the legal precedent, we believe Respondent should be suspended for a period of twenty-one months. As an added safeguard, and because Respondent acknowledged that he could benefit from participation in a law office management class, we will make that requirement a part of our recommendation.
The attorney, who used a block billing method, denied that his billings were inaccurate. The Hearing Board did "not accept [his] assertion that his alleged unbilled time cancels out his erroneous billings" and noted that he created summaries of time spent "eleven years after the fact based on his recollection and estimate of his time" to justify his "cancel out" position. His big firm experience also did not help:
Our finding of dishonesty is further bolstered by the fact Respondent was an attorney with fourteen years of experience with major law firms. Unlike many solo practitioners, he had the benefit of observing, and being schooled in, various time-keeping and billing practices that are a critical part of a firm’s business operations. The importance of keeping contemporaneous time records and providing accurate descriptions of his work could not have been lost on him and, by the time he started his own practice, should have been engrained into his daily routine. The fact that he failed in that regard points to a purposeful decision to disregard his obligations to his clients.
The attorney testified that "he feels horrible about the billing errors." Nonetheless, does anyone out there think this should be a disbarment case? (Mike Frisch)
The Illinois ARDC has filed charges against an attorney for three alleged instances of criminal conduct. Two matters involved charges of driving under the influence of alcohol; it is alleged that the attorney's blood alcohol level in one matter was .346. The third matter involves allegations of property destruction:
On November 21, 2004, Respondent attempted to enter a church rectory in Forest Park after consuming an unknown quantity of whiskey. At that time, he was arrested by the Forest Park police and charged with criminal damage to property and trespass.
This is one bar discipline matter where it seems quite likely that the misconduct was caused by alcoholism. The focus of the proceeding likely will be on the issue of substantial rehabilitation. (Mike Frisch)