Legal Profession Blog

No Conviction, No Suspension

An order of suspension in Michigan against David Safavian based on his criminal conviction was vacated as a result of the reversal of that conviction by the United States Court of Appeals for the District of Columbia Circuit. Both the suspension and vacatur were in automatic response to the actions in the criminal case. The disciplinary matter predicated on the conviction was ordered dismissed. (Mike Frisch)

Family Feud

A two-year suspension was imposed by the Kansas Supreme Court in a matter where the accused attorney was one of five children. During the father's lifetime, disputes among the siblings arose in competing guardianship and conservatorship cases. The attorney was appointed guardian; a brother was named conservator. When father died, things really got ugly.

When his sister wrote the judge complaining about his conduct as guardian, the attorney responded with a malicious prosecution and defamation suit against sister and her attorney. The case was eventually dismissed with sanctions for frivolous litigation awarded to sister and her attorney. in determining sanction, the court noted three prior instances of discipline and quoted the hearing panel concerning the nature of the misconduct:

"The Hearing Panel has carefully considered the Respondent's misconduct in this case. The Hearing Panel is troubled by the Respondent's misconduct in this case. The Respondent's suit against his sister and her attorney was founded in defamation and abuse of process [malicious prosecution]. However, the damages alleged by the Respondent had nothing to do with the allegations of the petition. The Respondent sought more than $112,000 from his sister and his sister's attorney for unreimbursed expenses attendant to his father's needs and for the Respondent's time spent visiting his father. The Hearing Panel finds that the Respondent engaged in excessively aggressive conduct that assails the standards to which lawyers are to conduct themselves, in that Respondent would attempt to have his sister and her attorney pay the Respondent for time he spent visiting his father and other alleged damages that were not even remotely related to the allegations in the Petition or the Amended Petition.

The court did not consider the lawyer's lack of prior experience with defamation cases as a mitigating factor. (Mike Frisch)

No Admission for Graduate Of Unaccredited Law School

The Nebraska Supreme Court held today that a graduate of a law school not approved by the ABA may not seek admission without examination. The applicant had attended Western State University College of Law. and had satified Nebraska's MPRE requirement. He had passed the bar and been admitted in Georgia in 1992. He is a member in good standing of the Georgia Bar. He moved to Nebraska in 2006 to be near to his ill parents.

Western State is now accredited. The court permits waivers for graduates of foreign law schools. However,

there is a criical distinction between graduates of foreign law schools and graduates of nonaccredited U.S. law schools. The ABA does not evaluate foreign law schools for accreditation; thus, there is no way for citizens of foreign countries to attend an ABA-accredited school in their own country.

The court declined to adopt the suggestion that it evaluate credentials of such applicants on a case-by-case basis. The requirement that a domestic graduate attend an ABA-accredited institution is non-waivable. (Mike Frisch)

Imputed Misconduct Justifies License Denial

An accountant who had been convicted of wire fraud arranged to be a 49% shareholder of a public accounting firm while there was a pending proceeding to revoke his license. The Missouri Supreme Court held that the Board of Accountancy properly exercised its discretion not to grant a license to the firm. It was not error to impute the prior individual misconduct to the new entity:

...the Commission further held that because the relevant conduct occurred prior to IFS's formation as a corporate entity, the Board could not consider it. This reasoning is flawed because a new firm applying for an initial permit has no history and, so, to require the Board to issue the permit, regardless of the background and character of the corporate owners, would frustrate the intent of section 326.310. Reading the statutes together, the authority of the Board to deny a permit under section 326.310 by imputing the past misconduct of the owners to the new firm is at least implicit, if not express. Kossmeyer is a convicted felon who has been found unfit to practice accountancy in the state of Missouri, and his conduct reflects no less poorly on the fitness of IFS as a public accountancy firm simply because it occurred before the entity's formation.

(Mike Frisch)

Not Yet

In an interesting decision, the New York Appellate Division for the Third Judicial Department denied  admission to an applicant conditionally admitted by Connecticut in May 2007. The applicant had a number of issues enumerated by the court including traffic violations that had led to license suspension, discharges from employment, reprimand for failure to disclose prior criminal record in application for law school, lack of candor in the bar admission process and a history of alcohol and marijuana dependence for which the applicant was being treated. The Connecticut conditional admission had required monitoring. There is no indication from the order of a violation of the conditions. The applicant can reapply for admission in a year. (Mike Frisch)

Suspension Insufficient

The Florida Supreme Court accepted findings of misconduct but rejected a referee's proposed three-year suspension in favor of disbarment in a matter where the attorney had represented a client who had engaged in unauthorized practice. The lawyer then, in essence, went into the unauthorized practice business with the client. The lawyer made false representations in the bar investigation and had caused significant harm to the interests of eight clients in immigration matters. The court concluded that the misconduct warranted the sanction of disbarment. (Mike Frisch)

Transition To Firm Leads To Ethics Charges

A complaint filed by the Illinois ARDC alleges that the attorney had undertaken the representation of two plaintiffs in cases involving claims of employment discrimination. The lawyer, who had a solo practice, then accepted a partnership with a law firm that defended business interests in such matters. According to the complaint:

Prior to the initiation of his employment at Hinshaw, Respondent knew that Hinshaw expected him to build a practice on representing businesses and government entities in employment litigation matters, and that, accordingly, he should withdraw from and/or find substitute counsel for as much of his plaintiff employment litigation practice as possible prior to his employment. 

Prior to the initiation of his employment at Hinshaw, Respondent knew that he would have to close his solo practice when he started at the firm and that once he began his employment at Hinshaw he would be required to proceed on all matters, henceforth, as a Hinshaw lawyer and not a solo practitioner.

Prior to the initiation of his employment at Hinshaw, Respondent knew that when he started at the firm he would be required to substitute Hinshaw in as counsel of record for all open client matters, and to input client names in the Hinshaw conflict system for the purpose checking for conflicts of interest.

The complaint alleges that the attorney did not close his solo practice and had continued to represent the two plaintiffs without disclosure to the firm. He allegedly remained sole counsel of record in the cases without substituting the firm's appearance. The firm terminated his employment when it learned he had not closed his solo practice. According to the complaint:

At no time before December 12, 2006, had Respondent advised Hinshaw partners Browne or Shannon that he was not able to file plaintiffs’ response to the Dominick’s defendants’ motions for summary judgment in case number 03 C 9343 in a timely fashion.

On or shortly after December 12, 2006, Hinshaw learned that Respondent continued to represent clients he had prior to his employment with Hinshaw, in addition to the plaintiffs in case number 03 C 9343, including, but not limited to, Chicago Transit Authority, Janis Taylor, and Jesica Gonzalez, without opening Hinshaw client matters, inputting the party names into the Hinshaw conflict system, or substituting Hinshaw as counsel of record.

On or shortly after December 12, 2006, Hinshaw asked Respondent for his resignation.

On or about January 12, 2007, Hinshaw terminated Respondent’s employment.

Respondent’s conduct in failing to advise his partners at Hinshaw that he continued to represent clients he had prior to his employment with Hinshaw, including, but not limited to the plaintiffs in 03 C 93423, without opening Hinshaw client matters, inputting the party names into the Hinshaw conflict system, or substituting Hinshaw as counsel of record, as set forth...above, was dishonest and Respondent knew it was dishonest because Respondent knew of Hinshaw’s expectation, requirements, and practices in this regard.

The lawyer is charged with, among other things, neglect of the two employment cases and breach of fiduciary duties to the law firm. (Mike Frisch)

Not An Infamous Crime

An attorney who had been convicted (and subsequently pardoned) for a drug offense that occurred when he was 17 years old is not disqualified from holding the position of Family Court Commissioner, according to the holding of the Delaware Supreme Court. He had been tried and convicted as a adult, but was admitted to the Delaware Bar and has been an honorable and productive member of the Bar. The court here concluded that the offense was not an "infamous crime," which would have disqualified him from the office. The court emphasized his age at the time of the offense in reaching its conclusion. (Mike Frisch)

Call for Papers: International Journal on the Legal Profession

[Posted by Bill Henderson]

The International Journal on the Legal Profession has issued a call for papers on the topic "Impact of Legal Change on Legal Practitioners."  Here are the details:

The International Journal of the Legal Profession invites submissions for a symposium on how legal changes impact the day-to-day work of legal practitioners. The types of issues that would be appropriate for articles includes how legal change impacts such things as the market for specialized legal practices, lawyers’ decision making practices about which cases to pursue, the way lawyers handle specific types of cases, or how lawyers work with experts; these topics are meant to be suggestive not exhaustive. More specific examples in the U.S.context would include the impact of tort reform, the Bankruptcy Reform Act of 2005, changes in immigration law in the wake of 9/11, the Private Securities Litigation Reform Act of 1995, Sarbanes-Oxley Act of 2002, and the Class Action Fairness Act 2005. Examples of legal changes in the UK that might be considered are The Companies Acts, Charity Act 2006 and Legal Services Act 2007. While the examples are drawn from the U.S.and the U.K., submissions dealing with the impact of legal change on legal practice in other countries is strongly encouraged.

The symposium editor will be Professor Herbert Kritzer, William Mitchell College of Law (herbert.kritzer@wmitchell.edu). Authors who have questions about whether their work would be appropriate for the symposium should contact Professor Kritzer.

More information after the jump:

All manuscripts should be submitted electronically to the general editor, Professor Avrom Sherr, Institute of Advanced Legal Studies, University of London, Avrom.Sherr@sas.ac.uk. Either Word or PDF format is preferred. Manuscripts should be double-spaced, and authors should insure that all identifying information (including that embedded by software) is removed prior to submission. Because it is a peer-reviewed journal, the International Journal of the Legal Profession requires that manuscripts submitted for consideration not be under simultaneous consideration by other journals.

Manuscripts will be evaluated for publication as submitted; the deadline for submission to insure consideration is February 1, 2009. Anticipated publication is late 2009.

The International Journal of the Legal Profession is an academic journal addressing the organization, structure, management and infrastructure of the legal professions of the common law and civil law world. The journal encompasses studies of the work, work practices, skills and ethics of the legal profession as well as the internal management of law firms and chambers. It also considers the methods and extent of provision of legal services. A range of socio-legal information is included involving inter-disciplinary interest from academic and professional lawyers, economists, philosophers, psychologists, sociologists, anthropologists and business academics interested in the world of law and lawyers.

Pattern Of Misconduct Charged

The Illinois ARDC has filed a second amended complaint alleging that the attorney engaged in inappropriate sexual behavior toward three clients and the wife (and opposing party) of another client. Samples of the alleged conduct from the charging document:

On June 15, 2005, Respondent and Sarah met in his office. Respondent asked Sarah to give him a hug. Sarah gave Respondent a hug. At that point, Respondent proceeded to grab Sarah’s buttocks, pull her toward him, stick his tongue in her mouth, simulate the turning of her breasts and place her hand outside his pants on his partially erect genitals, stating to her "see what you’ve done." Sarah repeatedly stated to Respondent; "Okay that’s enough"; but he did not stop. Respondent said other things to Sarah including "You don’t know what you do to me"; and "Why don’t you lay down on the floor right there?"

And:

During the course of Respondent’s representation, Respondent asked Brevoort [his client]to explain her reasons for wanting a divorce. Brevoort advised Respondent that her husband was an alcoholic and that they had not been intimate in three years. Respondent remarked to Brevoort that if she were his wife she wouldn’t be left alone.

Respondent also appeared once at Brevoort’s home uninvited, stating he wished to discuss issues relating to her dissolution. Brevoort was fearful of Respondent and uncomfortable with the presence of Respondent at her home. Respondent left when he realized Brevoort’s son was at home at the time.

On or about March 16, 2004, Respondent telephoned Brevoort. Brevoort was in her car with a friend when she received Respondent’s telephone call. Because of Respondent’s prior inappropriate sexual conduct, Brevoort requested that her friend, Linda Wedig, who was present in the car, listen to Brevoort’s conversation with Respondent.

In his telephone conversation with Brevoort, Respondent asked Brevoort to meet him. Brevoort asked Respondent what they needed to meet about and Respondent replied, "a blow job." Brevoort was shocked, and asked Respondent whether Respondent had been drinking.

As to a third client:

Throughout the time Respondent represented Johnson, Respondent made inappropriate and suggestive remarks to Johnson, complimenting her appearance, remarking that he could not believe her ex-husband ever left her, discussing the commencement of a sexual relationship, getting "naked" together, and discussing oral sex. Respondent would call Johnson and engage in lengthy conversations of this nature, including asking her to join him on a trip to Springfield so they could have sexual relations. Respondent and Johnson would engage in touching and fondling including at conference rooms at the courthouse.

Although Johnson was attracted to Respondent, she would often inquire of Respondent whether it was appropriate for them to engage in these conversations or sexual relations, because he was her attorney. Johnson also had concerns since Respondent was married.

At some time on or about August 26, 2007, Johnson told Respondent she no longer required his representation. Johnson believed the relationship was becoming too personal and it was not proper for Respondent to continue to represent her in her case. On or about that date, Respondent leaned up against her and rubbed himself against her, touching her thighs and telling her that she didn’t know what she did to him.

As to the client spouse:

After Dirk  [the client] left Respondent’s office, Respondent stated to Leah that most divorces resulted from disputes over sex or money and asked her to explain the reasons that she sought a divorce. Leah advised Respondent that her husband worked nights and that their physical relationship had suffered as a result. Leah began to cry, explaining her reasons for dissolving the marriage and for leaving Dirk.

Respondent hugged Leah and drew her in close to his body, pressing her against his erect genitals. Leah pulled away and Respondent then grabbed Leah’s hand and placed it upon his genitals, over his clothing. Leah told Respondent to stop and then left Respondent’s office.

Because charges such as these almost invariably involve one-on-one conduct, there are often problems of proof to the certainty required in a bar discipline proceeding. Where the allegations involve a number of unrelated persons alleging the misconduct, the pattern makes for a much stronger case. (Mike Frisch)

Post-Conviction Relief Does Not Affect Disbarment Order

An Oklahoma lawyer who was disbarred as a result of convictions for stalking and felony distribution or attempted distribution of obscene or indecent material was granted post-conviction relief after the disbarment order. The relief reduced the felonies to misdemeanors. He then sought a modification of the disbarment to a retroactive one-year suspension as a result.

The Oklahoma Supreme Court noted that there is no formal process for such relief but denied modification on the merits:

The fact that the respondent's misconduct has more recently been described as a misdemeanor rather than a felony has no effect on this court's decision to disbar the respondent. We acknowledge that in no prior disciplinary case has an attorney been disbarred for committing a misdemeanor. We also recognize that "[i]n determining the proper discipline this Court compares the circumstances of the involved case with those of similar previous disciplinary cases involving other attorneys." Nevertheless, this comparison is made to determine "how best to serve the welfare of the public and the integrity of the bar." Moreover, as noted by this court in its original determination to disbar the respondent, "this Court has recognized that the extent of discipline must be decided on a case-by-case basis because each situation will usually involve different transgressions and different mitigating circumstances"

The respondent's "conduct involved multiple victims and occurred over a lengthy period of time."... "The most egregious transgression(s), in our view, attempted to envelope an innocent minor in his obsessive scheme of relentless harassment."In determining the respondent must be disbarred we clearly focused on the nature of the crimes committed.

The original misconduct grew out of the lawyer's obsession with his former secretary. (Mike Frisch)

No Fiduciary Breach

The New York Court of Appeals today held that a lawsuit alleging, among other things, breach of fiduciary duty against an Orthodox rabbi by a women with whom he was alleged to have had a 3 1/2 year intimate affair failed to establish a viable cause of action. The complaint contended that the defendant had counseled the plaintiff on personal and other issues relating to her desire to marry and have children. the defendant allegedly claimed to be "as close to God as anyone could get" and "that he was, in fact 'the Messiah.' "

The court concluded that a fiduciary relationship requires de facto control and dominance. the plaintiff had "voluntarily consented to the 3 1/2 year intimate relationship with [defendant] because she subjectively believed that the 'therapy' he suggested would help her find a husband... no cause of action can be maintained for an extended voluntary sexual affair between consenting adults, even if [plaintiff] could prove that her acquiesence was obtained through lies, manipulation or other morally opprobrious conduct." (Mike Frisch)

Status Restored

A lawyer disbarred in New York for a federal felony conviction filed an amended certificate for his professional corporation that named his daughter (also an attorney) as director, president, secretary and shareholder. He thereafter filed documents claiming that he was sole director and dissolved and liquidated the corporation. He then sued another firm for legal malpractice in connection with their handling of claims involving the City of New York. The defendants moved to dismiss, contending that he could not individually bring suit on behalf of the corporation. The trial court granted the motion and the dismissal was affirmed by the Appellate Division.

The New York Court of Appeals reversed, holding that the merits of the malpractice claim had not been addressed. As to capacity to sue on behalf of the corporation: "Although [the corporation] initially lacked capacity to initiate the subject litigation in that it had been dissolved by proclamation of the Secretary of State...for failure to pay franchise taxes, this deficiency was cured when [the corporation] paid the required fees. Thus, [the corporation] was restored to the status it had when it was dissolved..." (Mike Frisch)

A Matter Worthy Of Further Investigation

The District of Columbia Rules of Professional Conduct prohibit discrimination in employment with the following language:

Rule 9.1—Nondiscrimination

      A lawyer shall not discriminate against any individual in conditions of employment because of the individual’s race, color, religion, national origin, sex, age, marital status, sexual orientation, family responsibility, or physical handicap.

The prohibition, so far as I am aware, has never resulted in public discipline against a member of the D.C. Bar. The rule came to mind as I reflect on the report of D.O.J. Inspector General Glenn A. Fine finding employment discrimination in the Department of Justice honors and intern programs. By its language, discrimination based on inferred political  leanings or affiliations would not appear to violate the letter of the rule. However, to the extent such discrimination constitutes criminal or otherwise improper conduct (such as violation of Department regulations), it might well violate D.C. Rule 8.4(b) (criminal conduct that reflects adversely on honesty, trustworthiness or fitness to practice in other respects) or (d)(conduct that seriously interferes with the administration of justice).

A web search (apparently a favorite tool for detecting political persuasion not apparent from a resume) for information about the two attorneys who were found to have discriminated reveals that both have left the Department of Justice and one is a practicing member of the D.C. Bar. I would expect the District of Columbia Bar Counsel to open a confidential investigation of this attorney in light of the Inspector General's findings. The Bar Counsel has the authority (and, in my view, the obligation) to proceed even without a formal complaint under the following Board on Professional Responsibility Rule:

An investigation may be initiated on the basis of a complaint or on the basis of any alleged ground for discipline coming to the attention of Bar Counsel or the Board from any source whatsoever.

Whether or not such an investigation goes anywhere remains to be seen. I have always favored open access to matters that result in dismissal so that the public could understand the basis of a Bar Counsel  decision not to institute charges. I doubt the present rule (D.C. App. R. XI, section 17) that accords confidentiality to dismissal letters will change in the foreseeable future. (Mike Frisch)

Luban On New York Prosecutor Story

When a Good Prosecutor Throws a Case

 

David Luban       

      

Should a prosecutor throw a case to avoid sending men he thinks are innocent to jail?

This story appeared in yesterday’s New York Times: a career prosecutor in New York City’s DA’s office, Daniel Bibb, was ordered to reexamine two men’s murder convictions because of new evidence. After an exhaustive 21-month investigation, Bibb became convinced that they were not guilty. But he couldn’t persuade his superiors to drop the cases, so he went in to the hearing and, in his words, threw the case. "‘I did the best I could,’ he said. ‘To lose.’"

He made sure that the exculpatory witnesses showed up at the hearing, told witnesses what questions he was going to ask them on cross-examination, and helped defense lawyers draw connections between different pieces of evidence when they weren’t getting it. All the while, he continued to ask his superiors to drop the cases. They agreed to do so for one of the men, and a new trial was ordered for the other. At that point, Bibb said, "I’m done....I wanted nothing to do with it." Bibb eventually resigned – although all he had ever wanted to be is a career prosecutor. Today he’s trying to start over as a defense lawyer.

There’s no doubt that what Bibb did was unusual. And there’s no doubt that he violated the usual role expectations of the adversary system, where lawyers never try to help the other side make their case even when they think the other side is right. But did Bibb do anything wrong?
Stephen Gillers, a nationally-renowned legal ethics expert, thinks he did, and might face professional discipline. "He’s entitled to his conscience, but his conscience does not entitle him to subvert his client’s case. It entitles him to withdraw from the case, or quit if he can’t." Bibb, on the other hand, said that he didn’t withdraw because "he worried that if he did not take the case, another prosecutor would — and possibly win."

I have great admiration for Steve Gillers, but in this case I think he's wrong. Daniel Bibb deserves a medal, not a reprimand.

Before I explain why, let’s see what the ethics case against Bibb might be. Imagine that a private lawyer representing a private client did the same thing: located truthful but adverse witnesses, revealed his cross-examination, coached the opposing lawyers. And suppose his client lost. The lawyer did it because he thought the other side was right. First, there is no question that the lawyer could be sued for malpractice. As for ethics violations, the lawyer could be charged with violating the requirement of competency (Model Rule 1.1); the requirement that the client, not the lawyer, sets the goals of the representation (Rule 1.2(a)); the requirement of diligence ("zeal," although the Model Rules don’t use that word in Rule 1.3); and the conflict of interest provision (Rule 1.7). Conceivably the lawyer could also be charged with using client confidences against the client’s interests, if any of his conduct was based on confidential information from the client. In short, a mountain of ethics violations.

Presumably, the same could be said of a prosecutor (except for the confidentiality violation); and New York’s rules contain counterparts to all these ABA rules.

But there is a difference. Prosecutors aren’t supposed to win at all costs. In a time-honored formula, their job is to seek justice, not victory. It’s a mantra that appears in all the crucial ethics documents: in the current ABA Model Rules of Professional Conduct ("A prosecutor has the responsibility of a minister of justice and not simply that of an advocate." Comment to Rule 3.8); in the previous ABA Code of Professional Responsibility ("The responsibility of a public prosecutor differs from that of the usual advocate: his duty is to seek justice, not merely to convict" (EC 7-13)); in the ABA’s Standards for the Prosecution Function ("The duty of the prosecutor is to seek justice, not merely to convict....", standard 3-1.2(c)). The ancestor of all these pronouncements is the Supreme Court’s dictum in a 1935 case, Berger v. U.S.:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. Berger, 295 U.S. 78, 88 (1935).

Admittedly, there’s a Delphic quality to "seek justice, not victory." ‘Justice’ is a grandiose and vague word. (Holmes famously said "This is a court of law, young man, not a court of justice," and wrote that whenever someone starts talking about justice he knows that legal thinking has come to an end.) The actual ethics rules – as opposed to aspirational standards – take a pretty minimalist view of the prosecutor’s responsibilities. They shouldn’t proceed without probable cause, they should make a reasonable effort to ensure that the accused has been informed of his rights, they shouldn’t try to get an unrepresented person to waive rights, and they should do timely Brady disclosures. That's about it. It’s a widely recognized fact that a lot of prosecutors measure their success by their conviction rate. Fred Zacharias, a noted ethics authority, thinks that the "justice" prosecutors seek "has two fairly limited prongs: (1) prosecutors should not prosecute unless they have a good faith belief that the defendant is guilty; and, (2) prosecutors must ensure that the basic elements of the adversary system exist at trial." (That’s from his 1991 article "Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice?,"44 Vand. L. Rev. 45, 49.)

And yet I’ve talked with a lot of prosecutors who take "seek justice, not victory" seriously, even if they aren’t 100% confident they know exactly what it requires. At the very least, they know it means that you shouldn’t try to keep people behind bars if you think they didn't do it.

And just this year, the ABA House of Delegates agreed. The ABA added two new Model Rules to deal with prosecutors' obligations when new evidence suggests that they obtained wrongful convictions. Rule 3.8(g) requires a prosecutor who learns of "new, credible, and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted," to disclose the evidence to the proper authorities as well as the defendant, and initiate an investigation. And Rule 3.8(h) requires a prosecutor who receives clear and convincing evidence that a defendant was convicted of a crime he did not commit to "seek to remedy the conviction."

This rule is brand-new. It isn’t in New York's Code of Professional Responsibility yet, and it’s perfectly clear that the ABA wasn’t thinking of Bibb’s unorthodox tactics as the way a lawyer should "seek to remedy the conviction." But what, after all, did Bibb do wrong? He persuaded witnesses to show up in court and testify (against the state). Think for a moment about the alternative. Bibb was charged with investigating the case, and he did a yeoman’s job to locate the witnesses. Bibb "and two detectives conducted more than 50 interviews in more than a dozen states, ferreting out witnesses the police had somehow missed or ignored." Once he had these witnesses’ evidence, he was under an obligation to turn it over to the defense.

The alternatives: don’t investigate the case for fear you’ll find out that the guys doing 25-years-to-life are innocent; or, having investigated it, don’t turn over the exculpatory evidence to the defense, violating your constitutional and ethical obligations; or, having turned it over, put the defense to the difficulty of locating the witnesses and getting them to court – so, if they don’t succeed, the truth stays buried. THAT’s the ethical obligation of a public prosecutor?

Admittedly, it’s weirder to have the prosecutor remind the defense about how the evidence fits together, and weirder still to tell witnesses what you’re planning to ask them on cross examination. But how does that subvert criminal justice? How does that harm anybody or violate anyone's interests?

This is the real question. Steve Gillers says that Bibb subverted his client’s case. But who is his client? Bibb himself seems to think his client was Morgenthau, the DA, but that’s a misunderstanding. Prosecutors work for their boss, they don’t represent them. The court record says that a prosecutor’s client is the "people" or "state" of New York. That doesn’t help much, but it helps some. It helps us to focus on the question of why the people or state of New York have an interest in two innocent men serving long prison terms. For that matter, wouldn’t the people or state be better served if the police couldn’t close the books on the Palladium killings, given that the real killers are very likely still at large? The fact is that Bibb didn’t harm any discernible interest of his client.

And don’t think that Bibb’s conduct is totally unusual. A former federal prosecutor tells me that prosecutors often throw cases at the grand jury stage, because they think the case stinks but they’re under political pressure to take it to the grand jury. That’s less conspicuous than Bibb throwing the case at the hearing, but morally it’s hard to see the difference; and if my former prosecutor friend is right, it’s how conscientious prosecutors operate.

In the interest of full disclosure: I’ve never thought that the adversary system is the mightiest engine of truth and justice ever devised. And I’ve always thought that lawyers who shrug their shoulders at injustices they cause and say, "Don’t blame me, blame the adversary system" are ducking their moral responsibilities. Blaming the system is the weasel’s way out.

But even if I’m wrong about the adversary system in general, the prosecutor’s role is different. To "seek justice, not merely to convict" means that prosecutors aren’t supposed to be the ruthless partisan warriors the adversary system presupposes. Bibb was in a tough spot – ordered, for whatever reason, to defend convictions that he thought were wrong. He became a conscientious objector on the battlefield. His way out was unusual enough to land him on the front page of the New York Times. But he did the right thing, and hopefully THAT isn’t unusual.

         

          
Posted            5:07 PM            by David Luban [link]          
         

Thanks to David for allowing us to cross-post his views on this fascinating story. (Mike Frisch)

Check Your Mail Or Suffer The Consequences

The New York Appellate Division for the First Judicial Department imposed the reciprocal discipline of disbarment based on the imposition of that sanction in Georgia. The lawyer had not participated in the Georgia matter after attempted personal and mail service. He objected after he read of his disbarment in a newspaper. A special master then was appointed and concluded that the lawyer was accorded due process, as notices were sent to his address of record with the bar. The attorney claimed to have notified New York of the Georgia order in 1994, but there was no record of the notification. The bar did not learn of the disbarment until September 2007.

Here, the court found no due process violation or other basis to avoid identical discipline: "[w]ith respect to sanction, the state where [the attorney] resided and practiced law at the time of the offenses has the greatest interest and the sanction imposed by Georgia is appropriate under the circumstances." (Mike Frisch)

Too Much To Arbitrate

The New York Appellate Division for the First Judicial Department held today that the Fee Dispute Resolution Program does not apply when the amount in dispute exceeds $50,000:

The Fee Dispute Resolution Program has no applicability where the amount in dispute exceeds $50,000 (see 22 NYCRR 137.1[b][2]); both parties agree that the amount in dispute substantially exceeds that amount. Plaintiff contends that since it rescinded the tentative credit of $50,000, the amount owed by defendant client is approximately $140,000. Defendant admits he paid only $114,000 of the approximately $250,000 billed in attorney's fees. The amount in dispute clearly exceeds the $50,000 cap.

Plaintiff law firm did not consent to arbitration (22 NYCRR § 137.2). Accordingly, it is unnecessary to consider whether defendant waived his right to arbitration.

(Mike Frisch)

Trust Funds Used To Purchase Drugs

A lawyer who wrote escrow account checks to himself as well as to grocery stores and other businesses was suspended for six months by the Oklahoma Supreme Court. His parner discovered the problem, replaced the funds and dissolved the parnership. The attorney had used the money to buy drugs and has completed drug rehabilitation. He also had served as a federal bankruptcy trustee and did not misuse entrusted funds in that capacity. The court noted that the misconduct was "not accidental" and that the attorney was able to function at the time of the misconduct. The court concludes:

The only evidence offered by the Bar is the testimony of the Respondent. His former law partner was not called as witness nor was anyone else called to show they were injured by the acts of the Respondent. The evidence presented at best shows Hammond guilty of commingling of trust account funds. The evidence also shows that no clients were injured by the actions of Hammond. When the money was discovered missing, Hammond's law partner made sure the money was replaced. Also, mitigating in this matter is Hammond's sobriety. Based on the facts before this Court, we find a six-month suspension to be the appropriate discipline in light of Hammond's errors.

One dissent favored a year and a day suspension; another would impose disbarment. I would tend to favor harsher discipline as it seems from the description of the misconduct to involve more than commingling. (Mike Frisch)

No ADA Claim For Dishonesty Dismissal From Medical School

The Vermont Supreme Court affirmed the grant of summary judgment to the University of Vermont, rejecting a claim that the University discriminated against a medical student based on a disability. A faculty member had discovered that the fouth-year student had falsified an evaluation for a pediatric-surgery rotation. At a hearing, the student admitted the conduct and claimed it was an isolated incident. He was not dismissed but was subject to less serious sanctions.

The school later discovered two other falsified evaluations as well as a falsely altered diploma (to support a magna cum laude claim). At a second hearing, the student claimed the misconduct was caused by Tourette's Syndrome and a related obsessive-complusive behavior disorder. Expert testimony supported the contention. Nonetheless, he was dismissed from the University. He then sought treatment and petitioned for reinstatement, which was denied. He completed his studies elsewhere and sued the University for equitable relief, either the award of his degree or reinstatement.

The court here "recognize[d] that we are dealing with an academic institution about the ethical and academic standards applicable to its students." The university acted "for multiple purposes:to enforce academic standards, to protect patients being treated by students, to maintain trust between students and others, and to produce students who can go on to residencies and a profession practicing medecine." He never sought accomodation but only raised the disability issue to avoid sanction.

The court held:

   For multiple reasons, we conclude on this record that the undisputed facts show that plaintiff lacks a prima facie case, and the superior court properly dismissed the action. First, plaintiff cannot show that he met the essential qualifications for graduating from medical school, even with reasonable accommodations.  As the Dean emphasized, “[d]eception, dishonesty and perpetration of fraud are absolutely unacceptable, irrespective of cause.”  The College has the academic discretion to make honesty and personal accountability essential qualifications for its students.  See Falcone, 388 F.3d at 659.  As a matter of law, it would fundamentally alter the nature of the College if those actions by students were tolerated by the College and the student was allowed to enter the profession.  See Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 793 (1st Cir. 1992) (where university reached the “rationally justifiable conclusion that the available alternatives would result either in lowering academic standards or requiring substantial program alteration, the court could rule as a matter of law that the institution had met its duty”); Doe v. Attorney Discipline Bd., 78 F.3d 584, 1996 WL 78312, at *3 (6th Cir. 1996) (unpublished table decision) (in bar discipline case under Title II of the ADA, “ADA does not require that we hold Doe to a lesser standard of conduct than any other attorney, it merely precludes Doe from being denied an opportunity to practice law because of his disability.  Since Doe’s disability . . . has precluded him from satisfying the most basic ethical requirements of his profession, he is not qualified under the provisions of the ADA.”).

Further:

In essence, plaintiff seeks to wipe the slate clean and to obtain a second chance—in this case a third chance—to meet the academic and ethical requirements of the College.  He has requested as a remedy that he be given a medical degree or that he be reinstated to the fourth year medical class.  In essence, his record of misconduct would be eliminated, as if his disability was a full and complete defense to that misconduct.  The College would be required to ignore that the misconduct, however egregious, ever occurred.

      Decisions from other jurisdictions are clear, however, that the purpose of the ADA is not to give a second or third chance to one who commits misconduct.

(Mike Frisch)

Unauthorized Settlement

A proposed 90 day suspension was rejected as an insufficient sanction by the South Carolina Supreme Court, which imposed a suspension of six months. The lawyer had represented a client in a personal injury case, settled without the client's consent (the credibility dispute on this point was resolved in client's favor), endorsed the settlement check, deposited it in escrow and took his fee from the proceeds. Further:

...the Panel was justified in expressing concern over the fact that Respondent declined to promptly return the settlement proceeds to GEICO when requested by Attorney [the client's new counsel].  Respondent admitted that Client never signed a settlement release.  He also knew of the correspondence between Attorney and GEICO regarding a potential settlement of Client’s claim.  Therefore, Respondent was aware that Client’s personal injury claim with GEICO had not been finalized.   Despite this knowledge, Respondent delayed returning the funds to GEICO.  Additionally, Respondent never relinquished the amount of his attorney fees even though he failed to procure a final settlement for Client.  Respondent’s failure to promptly return the entire amount of the settlement proceeds impeded Attorney’s progress in pursuing Client’s claim with GEICO.

The court concluded that a longer suspension than proposed was appropriate due to the "egregious conduct" and the attorney's record of prior discipline. (Mike Frisch)