July 5, 2008
Jesse Helms, Racism, Manners, Law, and Cognitive Dissonance
Posted by Jeff Lipshaw
Jesse Helms, the former North Carolina senator, described by the New York Times as having a "courtly manner and mossy drawl," died. He was also an unrepentant and nasty racist and segregationist with a courtly manner. I don't have my copy of Barack Obama's The Audacity of Hope handy, but I recall there was a description of Helms' courtly manner upon Obama's arrival in the Senate. For those of you who remember this far back, Helms was the most recent incarnation of Allen Drury's character Senator Seab Cooley in Advise and Consent, played by Charles Laughton in the movie. (Before he became a Watergate hero, Sam Ervin had the honor.)
What do we make of the well-mannered racist? In the sequels to Advise and Consent, Drury got more and more conservative and hawkish, but I remember being troubled by his sympathetic treatment of Sen. Cooley, most of which had to do with courtesy and manners (like would it fair for the liberals to object to an aged senator leaning against his desk while filibustering against a civil rights act?) Our custom is to be charitable upon one's passing, but I don't think we have to go so far as to extol, which was what President Bush did: "Jesse Helms was a kind, decent, and humble man and a passionate defender of what he called 'the Miracle of America.' So it is fitting that this great patriot left us on the Fourth of July."
At the risk of taking on a political label, I'll confess I think a lot of manners and courtesy even if others think they merely promote the status quo, and even if it bars me from ever participating in a philosophy faculty workshop. I like Edmund Burke's famous quote about manners: "Manners are of more importance than laws... Manners are what vex or soothe, corrupt or purify, exalt or debase, barbarize or refine us, by a constant, steady, uniform, insensible operation, like that of the air we breathe in." Manners are about what we do rather than what we think, and perhaps it's the one place that law makes a difference, if there's something to the theory of cognitive dissonance, and particularly the variant that says we want to eliminate dissonance between what we believe and what we do. We can't, as a practical matter, outlaw racism, but we can pass laws affecting behavior that is the natural result of racism, and I think, slowly but surely, attitudes and beliefs start to change so as to harmonize what we believe with what we are doing. Putting aside the extremes of political correctness, when a Don Imus steps in it today, and there's a quick and relatively unanimous consequence, I think it's because what we do has required that we change how we think.
I'm reading Stephen L. Carter's New England White (more on that after I finish it), and it's helpful in seeing that even equal material status does not kill the instinct (I suspect the product of our evolution) that makes us fear the "other," and fear the "other" even more to the extent the "other" doesn't look like us. I'm still not sure that either President Bush or Sen. McCain were compelled, other than by political considerations, to mark Helms' passing, but even if compelled by friendship or courtesy in the Senate hallways, I would have preferred that it had gone something like this:
Jesse Helms will be remembered for his courtesy, his courtly manner, and his willingness to stand by his principles. These are all things we can and should admire. But he also stood for attitudes toward racial, ethnic, and other superficial differences whose day has long since passed. We should take solace in the death of very few, because we should mete out carefully our attributions of evil. But we will live in a better world if Jesse Helms' legacy is only his courteous behavior, and he is otherwise remembered as the last anachronistic embodiment of a condition we have overcome.
A Question Of Timing
An attorney who had been suspended for failing to comply with CLE obligations was later convicted of conspiracy to sell unregistered securities. He did not report the conviction to bar authorities. When the conviction was discovered, he was suspended pending further proceedings.
The Wyoming Board of Professional Responsibility recommended a two-year suspension, backdated so that the attorney would be reinstated without a further proceeding. The Wyoming Supreme Court rejected the proposed disposition, concluding that the two-year suspension should run from the date of the interim suspension and that reinstatement was not appropriate. The attorney must also satisfy the CLE obligation prior to reinstatement. (Mike Frisch)
July 4, 2008
Gas Not So Much The Problem
Declaration of Independence Has Modern Relevance
Michael Froomkin of U. Miami Law does magic with the Declaration of Independence just by using his ability to boldface. I had forgotten what its repeated focus was, and was jarred by the prescient environmental aspects found further along. See his provocative and highly original (though wholly derivative) post called 200 days to go.
Follow Up to Career Advice - In-House Prospects
Orin Kerr graciously linked from the Volokh Conspiracy over here to the litigation versus corporate career post. I want to return the favor by linking back to a set of comments being posted over there. The same over at Above the Law. There are a number of thoughtful comments out there.
One of the themes being discussed is whether it's easier to move in-house if you've been a transactional lawyer or a litigator in-house. I don't have any idea what the data is on this, but my philosophy as a general counsel, unless I was hiring for a specific specialty, like a litigation supervisor, an HR lawyer, or a patent lawyer, was to look for the best available athlete, and I had a track record of hiring both transactional and litigation lawyers to be divisional or business group GCs.
Many leading GCs are or were former litigators, including Jeff Kindler, first at McDonald's and then Pfizer (and now CEO of Pfizer), Peter Kreindler at Honeywell, Don Kempf at Morgan Stanley, Paul McGrath at FMC Corp. and then American Standard, and the list could go on and on. John Donofrio, the GC at Visteon, and Bob Armitage, the GC at Eli Lilly, are patent lawyers by background.
I think many of the comments reflect something I suggested before, which is how hard it is at the bottom of the heap to experience what it's like to be a senior lawyer in either specialty. For example, the communication skills you learn as a litigator translate nicely into talking publicly to a board or in a negotiation. A congenial personality works well in front of a jury as well as in a boardroom (the six or twelve lay people in either environment tend not to like assholes any more than anybody else). One of my mentors at Dykema, now retired, Don Young (Harvard '63 I think) had a fearsome reputation both internally and externally (as a summer associate I drew a cartoon of an associate who looked like he had just put his finger in an electric socket; the caption had him saying to another lawyer, "Don Young just reviewed my research memo"), but in front of a jury he was the embodiment of Mr. Charm. Fortunately, despite the fearsome reputation, he also had a sense of humor and an appreciation for chutzpah in young lawyers, much less summer associates who had yet to get an offer!
Halverson Saga Continues
The Nevada Supreme Court denied a petition by Judge Elizabeth Halverson to declare unconstitutional a Nevada law that created two year judgeships. The petition contended that a six-year term was required by the state constitution. If the relief sought had been granted, Judge Halverson's term in the judicial office to which she had been elected would have been extended by four years. The court concluded:
S.B. 195’s creation of judicial offices with initial two-year terms is constitutional. The constitution allows the Legislature to create new judicial positions with initial terms of fewer than six years in order to place those positions on the same election cycle as district court judge positions generally. As a result, we deny the petition for a writ of mandamus or prohibition and for declaratory relief.
July 3, 2008
Not A Taxi Driver
A New Orleans assistant city attorney who had been convicted of computer fraud for accepting $1,000 from an undercover FBI agent posing as a taxi driver was suspended pending further proceedings by the New York Appellate Division for the Third Judicial Department. The court found that the conviction was for a "serious crime" but rejected the Administrator's contention that there was an analogous New York state crime, and thus declined the invitation to impose summary disbarment.
Here is an order permanently disbarring the attorney for the conviction and other ethical misconduct entered last year by the Louisiana Supreme Court. The order provides greater detail about the circumstances of the conviction. (Mike Frisch)
"Wedgie" Leads To Shooting Death
The Utah Supreme Court reversed a manslaughter conviction in a case that arose out of a dispute among a group of people using cocaine. The victim teased the defendant for smoking, rather than snorting, the cocaine. Matters got worse when the victim threw the defendant down as he was urinating (the victim had been a competitive wrestler). The victim later threw cold water, attempted to get him to drink hot water, and, in the ultimate insult, administered a "wedgie" on the defendant. The shooting that caused the victim's death occurred within seconds of the "wedgie."
The defendant was charged with an array of offenses including murder. He was convicted of only a concealed weapons offense at a first trial. At a second trial, he was convicted of manslaughter. He had claimed self-defense, claiming that the victim had pointed a weapon at him. The jury was instructed, over defendant's objection, on imperfect self-defense and extreme emotional distress. Under Utah law, findings based on those instructions reduce murder to manslaughter.
The court reversed the conviction because imperfect self-defense and extreme emotional distress manslaughter are affirmative defenses. Defendant did not raise these affirmative defenses and no evidence was presented to support such claims. Indeed, the court observed, the defendant had endured the hazing with equanimity and did not claim to be upset. (Mike Frisch)
Judge Permanently Disbarred
The Ohio Supreme Court permanently disbarred a court of common pleas judge for misconduct both as a judge and in private practice. The misconduct is described on the court's web page as follows:
In today’s decision, the Court unanimously affirmed the disciplinary board’s findings that Hoskins violated multiple provisions of the Code of Judicial Conduct while serving on the bench, including deliberately concealing his personal ownership interest in a building in which a court-related office contracted to lease space. The Court also found that Hoskins committed multiple rule violations by entering into discussions with a convicted felon, David Bliss, in which Hoskins suggested that Bliss’ purchase of the above-mentioned building at a greatly inflated price would be a legal way for Bliss to utilize money he claimed to have obtained years earlier through criminal activity and to have concealed from authorities while in prison. The Court noted that, because Bliss was secretly cooperating with a law enforcement “sting” operation at the time, the case record included tape recordings of conversations in which Hoskins gave Bliss detailed instructions on how to “launder” the alleged concealed funds from his earlier crimes through a stock transfer in which he would acquire ownership of Hoskins’ building.
With regard to the offenses alleged during his years in private practice, the Court adopted the board’s findings that Hoskins engaged in a pattern of misconduct involving fraud, deceit, dishonesty or misrepresentation and committed other ethical offenses by repeatedly making improper and unauthorized withdrawals of money for his own use from the estates of several relatives over whose assets he exercised fiduciary control as executor or administrator. The board also found that Hoskins failed to timely disburse estate assets to the rightful beneficiaries, failed to keep required records accounting for his withdrawals and disbursements from the estates, charged excessive legal fees, and filed incomplete, inaccurate and misleading reports with the probate court that concealed his improper diversion of funds from the estates to his own use.
In rejecting Hoskins’ claim that permanent disbarment was disproportionate to his offenses, particularly in light of the fact that he was acquitted of all criminal charges brought against him, the Court noted that he had engaged in a pattern of misconduct stretching over a period of almost 10 years and that his actions involved multiple rule violations, reflected dishonest and selfish motives, and had caused serious financial harm to his private clients and “incalculable harm to the public perception of the judiciary and attorneys.”
Forger Gets the Small Town Blues, and More on the Judge Who Was Mean
Posted by Alan Childress
You know your city is really a small town (we're looking at you, Wichita) when the check-forger gets caught because she presented the check to that same Francisca Romero woman whose name was on the check. So says this blog of legal and judicial news from Kansas.
The What the Judge Ate for Breakfast blog also follows up, here, on Mike's previous story about the judge who got censured for meanness toward jurors, including links to other posts on the judge and news of her re-election prospects. See especially the pointed comments and details at Anne Reed's Deliberations blog, who views the Kansas court's response as inadequate. What about the actual effect on the criminal defendant tried to a jury "harangued into service"? Maybe the judge's announcement that she was not "some angry shrew up here" did not remove the taint, Reed opines.
July 2, 2008
Malpractice Verdict Overturned
A client hired a lawyer to pursue a slip-and-fall case against a grocery store. The client had slipped on shampoo. She sued the lawyer for malpractice after the underlying case was dismissed and won a $212,000 damage award. The Court of Appeals for the State of Washington reversed and remanded the case with a direction to dismiss.
The client met the lawyer through her fiance, an attorney in the lawyer's office. She took a job as a receptionist in the lawyer's firm. Things did not proceed well:
Schmidt presented evidence that Coogan failed to investigate and prepare her case. In
addition, when she asked him about the case, Coogan responded with profanity, telling Schmidt not to worry about it, that he was the lawyer, and that he had it under control. On the last day to file the complaint within the statute of limitations, Coogan still had not filed. After talking with Coogan, MacMonagle [the fiance] drafted the complaint and filed it over Coogan's signature.
The complaint, however, named the wrong party as owner of the store. Coogan attempted to amend the complaint and name the proper party, but for reasons not clear from the record, the attempt failed and the claim was ultimately dismissed.
Notwithstanding the above, the malpractice claim failed because there was no evidence the store was aware of the shampoo on the floor prior to the accident. (Mike Frisch)
Same-Sex Marriage Dissolution In Oklahoma?
It's hard to ignore a marriage dissolution case styled O'Darling v. O'Darling. The parties were "purportedly married" in Canada and one sought dissolution in Oklahoma. However, "[t]he fact that the marriage was between two women was not mentioned at [the] hearing" and the petitioner was referred to in court documents as "him." The trial court learned of the issue when contacted by a reporter from the Tulsa World and then vacated the dissolution order. The party seeking the dissolution (the petitioner) claimed she was denied due process of law as a result.
The Oklahoma Supreme Court held that petitioner and her lawyer had failed to disclose a material fact and controlling legal authority regarding same-sex marriage in Oklahoma. While the court had the power to vacate the dissolution, petitioner was entitled to notice and the right to be heard prior to the entry of the vacatur. The matter was remanded to the trial court to "conduct a hearing, after notice is given to the parties and the Oklahoma Attorney General's Office, allowing Petitioner to argue if there exists facts that entitle her to relief." (Mike Frisch)
Fee Contract Provisions Enforceable Against Sophisticated Client
A contract between lawyer and client that contains a liquidated damages provision in a fixed-fee, fixed term agreement is enforceable under the jurisprudence and ethics rules of Oklahoma, according to a decision issued yesterday by the Oklahoma Supreme Court. The decision resolved a question had been certified by the United States District Court for the Northern District of Oklahoma. The court noted some "unique facts" that influenced its decision: the client is a "large corporation sophisticated both in the commercial and legal environment and was represented by its Vice President of Legal Affairs and General Counsel in contract negotiations." The terms were unambiguous and "contains [the client's] express acknowledgment that the firm changed its position by undertaking costs and expenses to meet the demands of the contractual relationship."
The court concludes:
Courts should be reluctant to disturb fee arrangements freely entered into by knowledgeable and competent parties. However, a contract between a lawyer and a client is not an ordinary contract because of the existence of a fiduciary relationship. Nevertheless, we recognize that fixed-fee structures may often be beneficial to large corporations. They may allow the corporation to quantify and control its litigation expenses on an ongoing basis. Clients who regularly retain lawyers bargain for innovative fee arrangements that limit the right of discharge in exchange for lower fees. It would be counterproductive, in an era of increasing concerns over the cost of legal services, to preclude a client from bargaining for a reduction in fees in exchange for a reasonable limitation on the right of discharge.
Resignation Moots Judicial Discipline
The New York State Commission on Judicial Conduct has issued a decision in a matter involving the following charges of misconduct by a non-attorney town court justice:
Respondent was served by the Commission with a Formal Written Complaint dated March 5, 2008, which alleged inter alia that respondent failed to effectuate the right to counsel in a timely manner or altogether in three cases, with the result that three defendants each spent a week in jail; and failed to administer her court properly, with the result that bail monies in six cases were not deposited in a timely manner despite the Commission’s prior Censure for such conduct, fine receipts in 22 cases were not remitted to the State Comptroller, a criminal case was dismissed because of the respondent’s failure to take action, and sentencing dates in three cases were delayed for months because the respondent failed to order the pre-sentence investigation reports from the Probation Department.
The matter was closed in light of the justice's resignation from office. (Mike Frisch)
No Margin For Error
The Delaware Supreme Court recently issued an order concerning an attorney who was found to have violated a number of disciplinary rules and suspended for one year. The court's order states that any additional disciplinary violation by the attorney over the next five years will result in automatic disbarment. I have not seen many sanction orders (indeed, I don't think I've ever seen one) where the penalty for the next misstep is made so explicit. (Mike Frisch)
Umpire, Not Advocate
A brother and sister were involved in a bitter dispute over their father's estate. The sister obtained a court order that prohibited the brother from contacting her except through her representative. The brother was thereafter charged with criminal contempt of the no-contact order.
At the jury trial, the brother took the stand and was closely questioned by the trial judge (30 questions). The defense attorney did not object. Nonetheless, the Supreme Court of New Jersey reversed the conviction, holding that the judge had communicated through his questioning that he did not believe the brother's testimony. The court cautions trial judges to be careful in jury trials to not signal a view of witness credibility and thus influence the verdict. (Mike Frisch)
July 1, 2008
The United States Court of Appeals for the First Circuit affirmed a district court decision holding that a suit by a 2000 graduate of Southern New England School of Law against the school and two deans could not survive summary judgment. The graduate was not permitted to sit for the New Jersey bar examination because the school was not accredited when he graduated. The suit alleged that the school deans had made false statements to him about the prospects for accreditation, fraud and violation of a consumer protection statute. The court held that any reliance on the statements of the deans regarding accreditation prospects was unreasonable. One dean's "history of making inaccurate predictions rendered any reliance on his statements unreasonable." A second dean's statements were "at best, a lukewarm endorsement of the school's likelihood of attaining accreditation..."
Thanks to Sean Harrington for sending this case to us. (Mike Frisch)
Striking Deputy Sheriff Leads To Bar Charges
The Illinois ARDC has filed a complaint alleging that:
1. On November 17, 2006, Respondent, while appearing in court on behalf of Rita Patel, in the matter entitled In re the Marriage of Patel, case number 03 D 330179 in the Circuit Court of Cook County, began yelling at the Honorable James J. Donegan. Judge Donegan then ordered Respondent from his court room.
2. Cook County Deputy Sheriff Eric Gross ("Gross"), in performance of his official duties, attempted to escort Respondent from the courtroom pursuant to the order of Judge Donegan. Respondent initially resisted and struck Gross numerous times in his ribs.
3. As a result of Respondent’s actions on November 17, 2006, Deputy Gross suffered a fractured left rib and received medical treatment for his injuries at Northwestern Memorial Hospital.
It is alleged that the accused attorney was charged with aggravated battery and pleaded guilty to a reduced charge of assault. (Mike Frisch)
Let The Lawyer Beware
Here's a link to an interesting article on the web page of the California Bar Journal about lawyers falling victim to Internet scams. From the article:
Internet scammers have found a new and sometimes vulnerable target: American lawyers. And some take the bait. “I didn’t have my radar high enough to see what was going on,” says one chagrined Long Beach lawyer who entered into an agreement with a bogus client and went so far as to send $193,000 from his client trust account to a Hong Kong bank because he believed a cashier’s check he had received from a well-known financial institution was good.
Fortunately for the attorney, who asked not to be identified, his bank, City National in Los Angeles, acted quickly enough — but just. After learning that the cashier’s check was fake, the bankers stayed late at work so they could contact the Hong Kong bank when it opened in the morning and they were able to stop the money from being deposited into the scammer’s account.
A New York family court judge was admonished for rude and sarcastic treatment of litigants in three cases. From the opinion of the Commission on Judicial Conduct:
Respondent has acknowledged that in three cases he made rude, intemperate comments to and about litigants that conveyed the appearance of bias. His “angry,” “scolding” and “sarcastic” comments were demeaning and admittedly improper. By berating the litigants in two matters for “wasting” his time by seeking custody and by requesting counsel, he also undermined the parties’ exercise of their legal rights and showed a disregard for the fundamental right to counsel, which a judge is obligated to effectuate, not to discourage.
In one matter, shortly after the parties had left the courtroom, respondent mocked a litigant’s application and twice referred to the litigant as an “asshole” in the presence of court staff. Respondent’s acknowledged lack of objectivity towards the litigant ultimately required his recusal from the litigant’s cases.
A judge’s rudeness is not excused by the fact that a particular litigant may be difficult or have a history of imperfect behavior. Respect for the fairness and impartiality of the court is better fostered by a judge’s patience and courtesy than by anger, sarcasm and disrespect. “Breaches of judicial temperament “impair[ ] the public’s image of the dignity and impartiality of courts, which is essential to their fulfilling the court’s role in society.” (citations omitted)
Hat tip to the ABA Journal (Mike Frisch)