June 23, 2008
Real life imitates episode of Shark (well, sort of)According to today's New York Times (here), one of Morgenthau's prosecutors says that he intentionally threw a case because he was convinced that the defendant wasn't guilty. In the recently canceled CBS series Shark, James Woods's character Sebastian Stark throws a case because he's convinced that his client IS guilty (see here). Guess what, folks? Throwing a case is unethical, even if you're convinced it's the morally correct thing to do. (Nancy Rapoport)
Sokol on Antitrust Counsel (and Some Thoughts on Chambers Generally)
Posted by Jeff Lipshaw (cross-posted at PrawfsBlawg)
Danny Sokol (Florida) has an interesting post over at Antitrust & Competition Policy Blog (a Member of the Law Professor Blogs Network) about the Chambers USA rankings of New York City and Washington D.C antitrust lawyers. The question is why general counsels would want to hire antitrust deal counsel without a substantial history with (or employment by) one of the agencies. He list several reasons, to which I added one in the comments:
Perhaps the most significant reason to use antitrust counsel closely tied to the agencies (whether or not former agency people) is their insight and credibility on the toughest issue of all: if you have a deal that is potentially troublesome, do you immediately follow up the HSR filing with a trip over to the FTC or DOJ, or do you even make a pre-filing trip over to talk about it? This issue comes up in many, many industrial deals where you are talking a four to three or even a three to two combination, the HHI is apparently sky-high, but there is industrial logic to the deal, and qualitative aspects to it that do not surface in a top level look.
By the way, if you think playing the US News law school ranking game is fun, Chambers (both Global and USA) is an absolute treat. Just to follow up on Danny's post, during my career as a general counsel, of the listing of Washington antitrust lawyers, I used one from Band One and four from Band Two, and of the listing of New York antitrust lawyers, one from Band One and one from Band Four. I suppose if required to force rank them, I could, but I'm not sure how. The fact is, they were all really good, and I'm not sure what quantitative or qualitative scales the Chambers people use to make these distinctions. The idea of bands is a good one, but at this level, I'm still not sure that it gives off a false granularity as to skill or results. It may well be an accurate grouping as to brand recognition. I do know that I am still a close friend of one of the Washington antitrust lawyers, and both his band ranking and his one-liner description from a couple years ago were a source of endless ragging.
I always eagerly awaited my complementary volume of Chambers, particularly once it began to do rankings in the non-financial center U.S. cities. For example, I know almost everybody (including former partners, associates, and adversaries) in the Michigan corporate and M&A rankings, as well as the litigation rankings, and get no end of chuckles from the one-liner descriptions, not to mention the inclusions, exclusions, and relative band rankings of my own former partners.
Take a look at the format, and see if you don't agree that a law school version just begs to be published.
The Safety Net
An attorney in Louisiana was retained by a health care home to negotiate a reduction in Medicare reimbursements. The attorney, who was paid a $5,000 advance fee, never obtained the reduction. The client hired new counsel and sought an accounting of the fee. The attorney did not provide the accounting and did not follow through on a promise to return $1,800.
The client filed a bar complaint and the attorney did not respond until oral argument before the Disciplinary Board. The board agreed to vacate an earlier default and sent the matter back for a merits hearing. The hearing resulted in a finding of "no showing" that the attorney had failed to escrow the fees or taken such fees before earned. However, other ethical violations were found. The hearing committee proposed a stayed suspension with two years probation. The Louisiana Supreme Court imposed the stayed suspension but increased the probation period to five years. The attorney had suffered health problems during the period of the misconduct. The attorney "is presently employed by the Attorney General's Office, and...seems to be benefiting from the safety net of this employment."
A dissent would impose an active suspension of at least six months. (Mike Frisch)
Cocaine Use Violates Disciplinary Probation
We posted a comment Friday about a D.C. reciprocal case that questioned whether personal cocaine use violates ethics rules. A decision from the Pennsylvania Supreme Court involves an attorney placed on probation after a three-month suspension in 2006. Probation conditions included a requirement to abstain from alcohol and mind-altering drugs. The attorney violated the probation by using cocaine on several occasions, one of which resulted in his arrest.
The Pennsylvania Board found the attorney "an intelligent, sincere, candid individual who has found it difficult to abstain fron using drugs and alcohol." As he has not practiced law since 2002, he was suspended for a year and thereafter continued on probation for two years with monitoring of his sobriety. (Mike Frisch)
The Supreme Judicial Court of Maine affirmed an order denying a motion to disqualify counsel in a divorce case. The husband had called an attorney's office to discuss his concerns after the wife had purchased a house without his knowledge. It was unclear whether or not he actually spoke to the attorney, but there was no further contact thereafter. A year later, the wife retained the lawyer. Here, the court concluded that the magistrate properly denied the motion to disqualify, as there was no attorney-client relationship with the husband, the "probability" that they never spoken and the attorney's office protocols to prevent conflicts. Practice point: this case makes clear the advisability of having such office protocols. (Mike Frisch)