July 12, 2008
New England White: Carter as LeCarre?
Posted by Jeff Lipshaw
I liked Stephen Carter's The Emperor of Ocean Park a lot, but I lost track, in the hubbub of the last year, of his second novel, New England White (New York: Knopf, 2007), which I finished just in time to dig into his new novel, Palace Council. Like another lawyer-novelist, Scott Turow, Carter takes a secondary character from his first novel and makes her the protagonist of the second. In Turow's case, it was Presumed Innocent's defense counsel, Sandy Stern; here it is the first lady, Julia Veazey Carlyle, of Ocean Park's Yale-like university. I won't spoil the plot; this is a mystery. Suffice it to say that it involves Julia's relationship with three men, her murdered ex-lover, a brilliant but insufferable economist, her husband, the most powerful black man, and maybe the most powerful man, in the country, and a stoic, if not heroic, ex-cop. In addition, there's her troubled teenage daughter, her ex-patriate mother, and a presidential election contest that might have occurred if Bill Clinton and George Bush were party-hound roommates together at Yale and then ran against each other.
Unlike The Emperor of Ocean Park, however, New England White is engagingly flawed, and I take what may be my all-time favorite books, John LeCarre's Tinker, Tailor, Soldier, Spy and Smiley's People, as points of comparison, good and bad. Like LeCarre's early work (his later books, I think, became intentional or unintentional caricature), Carter's mysteries give us an insight into a heretofore closed set. For LeCarre, it was the Belgravia and Mayfair plus Oxbridge don as spy set; for Carter, it is the aristocracy of black society. Moreover, like LeCarre, Carter weaves into his mysteries far more than mere action. There are real moral ambiguities here - not the least of which is the extent to which one is entitled to use odious means - blackmail, among them - to a good end (for LeCarre, the triumph of the West over the Soviets; for Carter, the advancement of the darker nation).
That's why New England White is engaging; why is it flawed? Again, let's use the two LeCarre books as a point of comparison. They are two of the most intricately plotted books you will ever want to read. They, like New England White, are written in the third person limited omniscient (for LeCarre, it's mostly Smiley, but also major secondary characters like Jim Prideaux and Peter Guillam; for Carter, it's primarily Julia and Bruce, the ex-cop). LeCarre's narrator has something of a presence but it is, for some reason, far less obtrusive than Carter's. I had the reaction from time to time that Carter couldn't resist his own cleverness - the one instance that springs to mind is one of the characters observing that a male author should not use a woman character as his voice. Moreover, LeCarre's plots flowed inexorably. Carter has concocted a complex and kind of fun web of deceit, cover-up, and cabal. I won't say I couldn't put it down, but it kept me going. But like the author, the heroes just seemed to me to be too clever, the dialogue a little too stilted, and there were too many Dickensian coincidences. It was just a little too forced, and as such, the plot seemed to keep calling attention to itself. Nevertheless, Carter (unlike some other law professor novelists I won't name) seems to have restrained the law professor's inclination to explain everything, at least immediately.
No, what really keeps one going in New England White, despite the flaws, is that Julia really is a pretty good character - a strong, intelligent, flawed, rounded woman, even if her circumstances strain credibility from time to time. And that may be consistent with Carter's general iconoclasm from Reflections of an Affirmative Action Baby on: don't assume my pigeonholes just because of who I am, because I'm too complex and I will surprise you.
NOTE: If you're in the Boston area, Professor Carter will be reading selections from Palace Council at the Harvard Book Store in Cambridge on Wednesday, July 16.
July 11, 2008
Right To Unconflicted Counsel
The Kansas Court of Appeals held today that a trial court had abused its discretion by allowing a conflicted public defender to represent a client seeking to withdraw his guilty plea on a claim of ineffective assistance of counsel:
we are persuaded that Toney's public defender had divided loyalties at the hearing. Her purported ineffectiveness in investigating Toney's case prior to the plea was critical to her client's motion to withdraw plea. In order to faithfully and effectively represent Toney at the hearing, the public defender would be obligated to advocate and prove her own professional ineffectiveness. On the other hand, in order to defend herself against Toney's allegations of ineffectiveness, the public defender would be required to advocate against her client's legal position. This obviously placed the public defender in a tenuous position.
While Kansas has not adopted a per se rule on lawyer-client conflicts of interest:
The facts of this case do not require us to decide–and we decline to consider–whether defense counsel may properly advocate his or her own ineffectiveness and thereby avoid a claim that divided loyalties adversely affected counsel's performance.
In the present case, Toney's public defender had an admitted concern about having a conflict of interest which resulted in her failure to present evidence and to advocate in support of Toney's motion to withdraw plea. As a consequence, her conflicted representation necessarily undermined any possibility that Toney's motion would be successful. Under these circumstances, we hold the divided loyalties of Toney's public defender adversely affected her performance as Toney's counsel and created an actual conflict of interest.
The matter was remanded for a hearing on the motion to withdraw the plea with representation by a conflict-free attorney. (Mike Frisch)
Reinstatement Petition Denied
The Tennessee Supreme Court denied a petition for reinstatement of a disbarred attorney who had been convicted of bribery and conspiracy to bribe as a result of attempting to persuade a witness in a first degree murder trial to recant her preliminary hearing testimony. There were witnesses who testified favorably on the petition, including the person who had employed him as a chauffeur after the disbarment and a pastor who testified that he had become an "outspoken witness for the Lord." Other witnesses, including the criminal prosecutor in the bribery case and the Associate Dean for Clinical Affairs at Vanderbilt University Law School, had opposed reinstatement.
A concurring and dissenting opinion notes that the panel that took evidence on the petition had favored reinstatement: the court has "replace[d] our orderly and principled standard of review with an amorphous standard that essentially empowers this Court to do whatever it chooses in a particular case." The dissent observes that there is no permanent disbarment in Tennessee and that it is hard to imagine a more impressive case of rehabilitation. (Mike Frisch)
DA Theft Leads To Interim Suspension
A district attorney in Texas was suspended pending final discipline as a result of allegations (reported here) and a subsequent conviction on charges that he had caused public funds to be direct deposited into a personal bank account. The basis of the interim sanction is summarized on the web page of the Texas State Bar:
On June 25, 2008, the Board of Disciplinary Appeals signed an interlocutory order of suspension against Rockwall attorney Galen Ray Sumrow, 58, State Bar of Texas Card No. 19511375. On or about March 25, 2008, Sumrow was convicted of theft by a public servant, aggregated over $1,500 but less than $20,000, a third degree felony, in violation of Texas Penal Code §§ 31.03(e)(4), 31.03(f)(1) and 31.09, Intentional Crimes as defined in the Texas Rules of Disciplinary Procedure, in Cause number 2-07-629 styled, The State of Texas v. Galen Ray Sumrow, in the 382nd District Court of Rockwall County, Texas. Sumrow was sentenced to four years in the Institutional Division of the Texas Department of Criminal Justice and ordered to pay restitution in the amount of $9,652.76. In addition, he was ordered to be removed as Criminal District Attorney of Rockwall County for official misconduct and intentional unlawful behavior relating to his official duties. Sumrow has appealed the conviction. The Board retains jurisdiction to enter a final judgment when the criminal appeal is final. Sumrow did not answer the petition for compulsory discipline or appear at the hearing.
This action is consistent with disciplinary procedures throughout the country that treat a conviction as a basis for summary suspension pending a determination of the appropriate final discipline. (Mike Frisch)
The Illinois ARDC has filed a complaint alleging, among other things, that an associate attorney at a law firm failed to remit approximately $1,500 in fees due to the firm. The attorney also is alleged to have converted fees, failed to return an unearned fee and made misrepresentations to a client. (Mike Frisch)
July 10, 2008
No Reciprocal Discipline
An attorney who had been hired as chief prosecutor for the Ak-Chin Indian Community had been suspended by the Ak-Chin Community Court for two years. Reciprocal discipline was not imposed in Arizona (where the community is located) because the procedures leading to the suspension were "so lacking in due process and opportunity to be heard as to constitute a denial of due process."
Original proceedings were instituted after reciprocal discipline was not imposed, leading to an agreed-upon censure. The misconduct involved false and reckless statements regarding the qualifications or integrity of the judge who had ordered the accused attorney to show cause in response to an ethics complaint filed against him, according to the hearing officer's report. (Mike Frisch)
The web page of the Florida Bar reports that an attorney was recently subject to a public reprimand. The misconduct and additional sanction was summarized as follows:
[The attorney] is further ordered to attend The Florida Bar's anger management workshop...[the attorney] plead guilty to charges that she referred to a witness in a court hearing as a "liar." When questioned about it by the presiding judge, [the attorney] denied making the comment. [The attorney] later admitted to it.
Was the judge not paying attention? (Mike Frisch)
Violation Of Trust
An attorney convicted of felony mail fraud was disbarred today by the New York Appellate Division for the Third Judicial Department. The factual basis for the plea of guilty revealed that the attorney had set up a trust for a 90 year old blind client and then made a series of fraudulent loans from the trust. (Mike Frisch)
Conditional Admission Violation Leads To Suspension
A bar applicant was conditionally admitted in Arizona in July 2007 with conditions of alcohol abstinence that prohibited "ingesting alcohol, food stuffs, beverages or toiletries containing alcohol." a random screning in October 2007 revealed the presence of ethylglucuronide, an alcohol metabolite. The attorney admitted taking NyQuil and stated that she did not realize it contained alcohol. An agreement for censure plus probation was reached.
A second positive test led to a further agreement for a suspension of six months and a day, which was approved by a hearing officer. The attorney has relocated to California and taken a job that does not require her to be a lawyer or have bar membership. The hearing officer concludes: "Respondent appears to be a bright articulate young person that could have a future in the law. However, the fact that she takes her obligation to the profession and the rules, as well as her personal commitments, so casually is troubling indeed." The sanction requires the attorney to petition for reinstatement. (Mike Frisch)
Interim Suspension For Non-Cooperation
The New York Appellate Division for the First Judicial Department suspended an attorney pending the completion of disciplinary proceedings for failure to copoperate with the investigation into allegations that he had mishandled an estate matter. The attorney claimed that he suffered from depression but did not provide medical documentation:
...respondent's conduct evinces willful noncompliance with the Committee's investigation, warranting his immediate suspension. As fully detailed above, respondent ignored the Committee's numerous written and phone demands for an answer. Respondent submitted an answer only after the Committee obtained a subpoena duces tecum from this Court directing respondent's appearance for a deposition. Besides submitting a belated answer, respondent failed to fulfil his repeated promises to conclude all the requisite work in his capacity as the attorney for the Heelan Estate, including providing an accounting and winding up the estate. To exacerbate matters, respondent failed to turn over the file for the estate to successor counsel. Further, respondent failed to provide all the documents requested by the Committee during his February 2007, deposition.
Respondent's excuse of suffering from several medical conditions is unavailing. Respondent has failed to supply the Committee with any documentation confirming his medical conditions. Under the circumstances, this Court must draw "a negative inference from respondent's failure to provide proof of his condition[s]."
July 9, 2008
Intent Found, Suspension Proposed
An Illinois Hearing Board has recommended a one-year suspension of an attorney found to have schemed with a divorce client to cheat his spouse out of her share of the marital estate. The board found that:
during his marital dissolution proceedings, Mr. Seleman [the client] was ordered by the court to sell a piece of property from the marital estate. Respondent agreed to execute a lien form that reflected Respondent was owed money for services he provided relating to the property when in fact no such services were rendered. Respondent ultimately received $50,000 from the sale of the property and subsequently tendered $45,000 back to Mr. Seleman.
The proposed sanction takes account of significant character evidence but also considers the accused attorney's incredible denials of any fraudulent intent. (Mike Frisch)
A client retained an attorney in a personal injury case but, shortly thereafter, they "began having difficulty with their attorney-client relationship." The lawyer withdrew when the client threatened a bar complaint. He then sued for fees based on his hours, which was allowable under the terms of the retainer agreement. The trial court refused to award any legal fees, finding that the lawyer had failed to prove that the attorney-client relationship had been "irretrievably broken."
The Utah Supreme Court reversed. The issue with respect to withdrawal is whether or not it was for "good cause." The issue is a question of law, but the determination whether good cause exists for withdrawal "is extremely fact-intensive." The trial judge's application of an "irretrievably broken" higher standard of proof required reversal. On remand, the court is directed to apply the proper legal standard without a further evidentiary hearing.
I would tend to believe that an attorney-client relationship is well on its way to "irretrievably broken" when the client threatens a bar complaint. (Mike Frisch)
Dismissal Overturned In Bar Discipline Case
Noting a significant distinction between bar proceedings based on a criminal conviction and those involving original charges, the California State Bar Court held that a dismissal based solely on the State Bar's alleged failure to notify an attorney "of its factual and legal contentions about the evidence it would rely on" was error. The attorney had been convicted in Ohio of assault "after [he] became verbally abusive to federal Transportation Security Administration employees who were screening [him] at the airport as a ticketed passenger." The dismissal had been entered by the hearing judge after the attorney had defaulted. The opinion aptly notes that "had [he] replied instead of defaulting, he could have sought to discover the State Bar's contentions.."
Of course, this decision is manifestly correct. Nothing proves the failure of self-regulation as much as a dismissal on a technicality without reaching the merits of a misconduct charge. (Mike Frisch)
Sex With Corpse Is Crime In Wisconsin
Not a legal profession case, but of possible interest is a decision issued today by the Wisconsin Supreme Court holding that the attempted disinterment of a corpse for sexual purposes violates criminal law:
In sum, by its plain terms, Wis. Stat. § 940.225 prohibits the conduct that the defendants are alleged to have attempted. Section 940.225(3) provides that "[w]hoever has sexual intercourse with a person without the consent of that person is guilty of a Class G felony," and § 940.225(7) provides that "[t]his section applies whether a victim is dead or alive at the time of the sexual contact or sexual intercourse." The language of the statute is clear on its face. A reasonably well-informed person would understand the statute to prohibit sexual intercourse with a dead person. In addition, the element of consent is not rendered superfluous by our interpretation. The State is obligated to prove beyond a reasonable doubt that the sexual intercourse was attempted without the victim's consent. Simplicity of proof does not make an element superfluous. (citation omitted). Furthermore, applying the plain meaning of § 940.225 does not create absurd results. It is not absurd that one who sexually assaults a dead person could not be punished for first-degree or second-degree sexual assault; such punishments are simply factually unavailable in cases in which the victim is a dead person. Finally, the legislative history verifies that the plain meaning of § 940.225 is not so limited as the defendants assert. Accordingly, the defendants may be charged with attempted third-degree sexual assault pursuant to § 940.225(3).
A dissent concludes that the majority reaches a "desired result through an undesirable analysis" and concludes:
The language of the statute is far from "plain." The majority's interpretation requires prosecutors to prove beyond a reasonable doubt that a corpse did not consent, and it renders subsection (7) superfluous, neither of which were intended by the legislature. Likewise, the legislative history indicates that the legislature intended § 940.225(7) to apply to cases involving murder and sexual assault, and not to cases of necrophilia. I therefore respectfully dissent.
Disclosure Of Medical Records May Result In Civil Liability
The Ohio Supreme Court held today that an attorney may be liable for unauthorized disclosure of medical records obtained in discovery. The records were provided in divorce litigation and revealed that the husband had "homicidal thoughts" about his wife. The attorney had provided the records to a prosecutor in connection with a criminal matter against the husband. The records were never admitted in either the civil or criminal matters. The husband was acquitted in the criminal case. He then sued the lawyer, his ex-wife, the doctor, his employer and the hospital that housed the doctor's employer for improper disclosure of the records.
The summary of the court's holding on its web page highlights the following language:
In today’s majority opinion affirming the 8th District, Chief Justice Moyer noted that: “In general, a person’s medical records are confidential. Numerous state and federal laws recognize and protect an individual’s interest in ensuring that his or her medical information remains so.... Physician-patient and psychologist-patient privileges have been codified in Ohio to deny the use of such information in litigation except in certain limited circumstances.... We explicitly recognized and applied this basic policy of confidentiality in Biddle v. Warren Gen. Hosp. (1999). In that case, we confronted issues arising from the disclosure of health-care information obtained through a physician-patient relationship. After surveying cases in Ohio and beyond, we recognized that the breach of patient confidentiality is a palpable wrong. ... We defined the boundaries of this tort by recognizing two related causes of action: one against physicians and hospitals that disclose confidential medical information to a third party without authorization or privilege to do so, and one against third parties who induce physicians or hospitals to disclose such information.”
While acknowledging that the specific causes of action recognized in Biddle “apply imperfectly” to the facts in this case, the Chief Justice wrote: “(W)e conclude that the rationale for our decision there applies here. Biddle stressed the importance of upholding an individual’s right to medical confidentiality beyond just the facts of that case.”
The Chief Justice rejected Belovich’s argument that she should be held exempt from liability for providing Hageman’s medical records to the prosecutor because Hageman had waived the confidentiality of those records when he filed a counterclaim in the divorce action seeking custody of his daughter. “Hageman admits that he made his health an issue in the divorce action by seeking custody of his and his ex-wife’s minor child,” wrote Chief Justice Moyer. “Pursuant to the law of the Eighth Appellate District, Hageman was required to demonstrate that he was capable of caring for his child in order to be granted custody. For that reason, he waived his medical privilege for the purposes of that case. Whatever discomfort arose from this disclosure of private and confidential information was tempered by the possibility of success on his custody claim. However, there is neither a legal justification for nor a practical benefit to the proposition that a waiver for a specific, limited purpose is a waiver for another purpose.”
“Creating an expansive waiver would be inconsistent with the generally recognized confidentiality provisions in Ohio and federal law. Moreover, the expansive waiver urged by Belovich would not be desirable public policy for a number of reasons. First, individuals should be encouraged to seek treatment for medical or psychological conditions, and privacy is often essential to effective treatment.... Likewise, if an expansive waiver existed for medical records obtained through litigation, the potential for abuse of this waiver would be high. The party receiving the records will generally be the only person with anything to gain from the disclosure of the information beyond the underlying litigation. The facts in this case convince us that an attorney with medical records of a party in one case could use those records for purposes not intended by the party granting the waiver.”
A dissent would find a waiver of any privilege:
The very purpose of permitting its discovery is to allow its examination and use by opposing counsel in furtherance of the cause of the client.
The court's opinion is linked here. (Mike Frisch)
July 8, 2008
What Do Law Firms Want?
Posted by Jeff Lipshaw
There's some commentary on Northwestern's new two-year program from Brian Leiter here, Bill Henderson here, and some skepticism from Brian Leiter about Bill's view. If I may put it in a nutshell, the Leiter argument says Northwestern can't really claim to compete with the mega-elites like Chicago simply by running a gimmicked-up, business school-like program that focuses on anything other churning out the smartest of the smart. This was part of the response to Bill:
One thing that Professor Henderson's Panglossian assessment loses sight of is that the law is an intellectual profession, in which certain kinds of high-order analytical and argumentative skills go a long, long way. This is why, for example, really successful litigation partners at top firms tend to be quite smart; some may also be good at "teamwork," and various B-School gimmickry, etc., but plenty aren't. But they can think, and argue, and analyze, and write, which is, I would have thought, what good law schools teach to and model for their students.
The crux of the argument is that "think, argue, analyze, and write" ("TAAW") skills are both necessary and sufficient for a successful lawyer at an elite firm, to the exclusion of other social skills. There's some seat of the pants empiricism going on here about what (a) leading or elite law firms are; (b) what leading or elite firms do; (c) what it means to be successful and with what kind of attributes; and (d) whether firms actually look to granular distinctions between schools like Chicago and Northwestern, or Harvard and BU, or other examples of "mega-elite" versus "super-elite" versus "elite" in deciding about the individuals they will hire. I don't know that my anecdotes can beat up your anecdotes, but I've been a big firm litigation partner, a big firm corporate partner, a general counsel who hires big firms, and a law professor. Let me suggest some parts of the quoted passage that are problematic.
(a) Even at the mega-firms, there are very few lawyers whose practice is so restricted as to do nothing but things requiring ONLY TAAW skills. I suppose if one's practice involved no more than briefing and arguing appellate cases with no need for assistance other than a few brilliant but browbeat-able associates (and possibly no need for clients), we could argue TAAW skills indeed are both necessary and sufficient. (I won't bother with the argument that TAAW is not necessary - even at the elite schools, students in the bottom quartile are looked upon with some suspicion, both for intellectual and other somewhat Darwinian reasons, so I'm assuming every lawyer hired by an NLJ 250 firm has TAAW skills.) Most big firms have an appellate litigation group, but it would be relatively small. Suffice it to say that elite firm appellate litigation groups are not, by a long shot, going to soak up a full year's worth of graduates from the top 20 US News law schools.
(b) Litigation practice at an elite firm by and large requires TAAW skills as a necessary condition, but it is rarely sufficient. Even elite firm lawyers make arguments to judges (trial and appellate) who (horrors!) graduated from 3d and 4th tier schools. An ability to come down to a less lofty level is not only an intellectual skill, but a social skill. It means you actually care about being understood by somebody else, and have the social sense to perceive that fiddling with your Phi Beta Kappa key (literally and figuratively) in front of the judge who worked her way at night through Urban Center Law School is not the best way to go. (I'd even be careful with that stereotype. One of the smartest people - in terms of pure analytical horsepower - I've ever met is my former partner and now United States District Judge (E.D. Mich.) Nancy G. Edmunds, who became a lawyer as a second career, and was the editor-in-chief of the Wayne Law Review back in 1977 or so.)
(c) Trial lawyers (and elite firms do trial work) make arguments to lay people. Jury research (as well as lore) suggests that juries react emotionally as much or more than intellectually.
(d) Not all practice, and not even all litigation practice, is intellectual and argumentative. 90% of all the cases litigated by big firms settle. Settlement is NOT a matter of arguing and writing, and while it involves analysis and thinking, it is of a different kind - more on the scale of emotional quotient than IQ. TAAW skills here are again necessary but not sufficient.
(e) I have hired dozens of high-powered lawyers. Their TAAW skills were my instruments. I liked hiring smart lawyers and, for me, TAAW skills, or at least everything but the "argumentative," were necessary conditions. (Indeed, I confess that I had a reputation in the practice as something of an elite school elitist). But nothing drives a general counsel crazier than her own counsel who can't seem to stop using his TAAW skills to make his own client's life miserable, like not acceding to the business needs of the client when it impacts upon the purity of the legal argument being made by the TAAW-driven lawyer. I could recount dozens of instances where lawyers' intellect (and particularly seeing a non-TAAW situation as one calling for TAAW skills) got in the way of good results. Not to mention lawyers who thought their TAAW skills were so non-fungible as to be able to ignore our instructions on getting bills in on time, or failing to accommodate our public company accounting rules in doing fee forecasts, and being prompt with their responses to auditors' inquiries.
(f) There's some discussion someplace in the comments about hiring Sitzfleisch, which I interpret to mean warm bodies. That is an interesting comment because, in the context of the present discussion, it had to do with elite firms hiring not-so-smart people to do routine work. Ironically, in my day in a non-New York big law firm, it was the really smart but socially challenged nerd who was the Sitzfleisch! You'd put him (usually him) back somewhere in the library, have him churn out great memos and briefs, but never, under any condition, let him interact with a client.
(g) Not even those of us with an elitist bent would hire individual lawyers on a rankings algorithm. Schools perform a rough filtering function, and that's about it. I can't even imagine a hiring committee saying something like "well, they are exactly equal but Mary went to Chicago and Joe went to Northwestern, so let's hire Mary." I'm going to suggest for the vast bulk of NLJ 250 hiring, the top twenty schools or so in US News are completely fungible, and barring some cataclysmic change, will always be. (Even the US News "lawyer/judge" assessments are of programs, not students, and those assessments, I suspect, are as influenced by the prior US News ranking as the peer assessments.) Moreover, digging deep into the US News 3d and 4th tier, firms, and even elite ones, regularly take students from those programs. I'm happy to say that my best securities law students from Suffolk are going to Ropes & Gray, Wilmer Hale, and Goodwin Procter.
The only causal connection I can see in the argument is that if somehow there's a cataclysmic change in the peer assessments of schools like Northwestern that makes a quantum change in the coordination aspect of US News and the like, entering students might think twice. Or firms might cut back on the schools they visit for purposes of hiring. (By the way, my recollection is that Georgetown leads the pack nationwide in terms of law firms who interview on campus.) But my guess is that these are all at best attenuated causal chains. Here, as elsewhere (as all seem to agree), the life of the law is not logic but experience.
Fee Premium Agreement Unenforceable
The New York Appellate Division for the First Judicial Department held that a provision in a fee agreement for a premium and an oral agreement was unenforceable:
The subject "Premium Fee" clause in the parties' retainer agreement provides: "We reserve the right to discuss with you at the conclusion of your matter your payment of a reasonable additional fee to us, in excess of the actual time and disbursements, for exceptional results achieved, time expended, responsiveness accorded, or complexity involved in your case. However, no such fee will be charged to you without your consent." The clause does not satisfy the plain language and specificity requirements of 22 NYCRR 1400.3(8), and defendant's oral agreement to pay plaintiff a premium fee of $150,000 is unenforceable.
An interesting concurring opinion:
I agree that the premium fee clause in issue lacks the specificity required by 22 NYCRR 1400.3(8) because it fails to advise the client beforehand how such fee was to be calculated (e.g., a flat amount or possibly a fixed percentage or a limited range of percentage of the total hourly charges incurred). However, I write separately to emphasize that, to the extent that our affirmance might possibly be construed as a criticism of the proposed bonus agreement, no negative connotation should be read into our decision, particularly where it was left to the client's sole discretion to agree or disagree that a premium fee or bonus was warranted. Indeed, given the ongoing debate regarding the efficacy of hourly charges (see e.g. Turow, THE [*2]BILLABLE HOUR MUST DIE It Rewards Inefficiency. It Makes Clients Suspicious. And It May Be Unethical, 93 ABA 32, [August 2007]), such premium fee or bonus arrangements, when fairly negotiated and properly drafted, should be met with approval by the courts. Attorneys, and particularly matrimonial attorneys, should be encouraged, as much as it is possible within their power, to facilitate the expeditious resolution of marital disputes, whether by negotiation and settlement, mediation, or, when all else fails, litigation.
The Arizona Supreme Court recently approved a hearing officer's recommendation for a 30 day suspension plus one year probation in a matter where the lawyer had represented the wife of a doctor prosecuted for hiring someone to kill another physician. The lawyer wished to be present for his client's testimony at the murder trial and advised the trial court that he had a doctor's appointment at the scheduled time for the testimony. The judge's assistant learned that, in fact, the lawyer had teed-off with his regular golf group at the Tucson Country Club. One assumes that the judge also was teed-off. The lawyer contended that he had attempted to see a doctor and joined the golf group later in the afternoon.
The hearing officer found that "there is... a difference of opinion about what happened and when" and that "some important questions cannot be proved by the clear and convincing standard." Nonetheless, an agreed disposition of the charges was accepted after a proposed non-suspensory sanction had been rejected.
One requirement of probation is that the attorney "attend an ethics class on integrity, honesty and the absolute necessity of candor toward the tribunal." Didn't we learn this in kindergarten? Is there really a CLE class on this? (Mike Frisch)
Sixth Sanction Is Short Suspension
An attorney who had been the subject of two prior public reprimands, a private reprimand and two 60-day suspensions was suspended for 90 days by the Wisconsin Supreme Court. He was retained by a wife to initiate a divorce. He filed a joint bankruptcy petition for the husband and wife "without obtaining consents from either of them" and failed to aprise them of developments in the matter. He then entered an appearance in a domestic abuse matter without the wife's consent.
Why such a light santion for the sixth disciplinary offense? The clients were "difficult" and the referee found the misconduct "astoundingly unexplainable." Nonetheless, the referee proposed adoption of the recommendation of the Office of Lawyer Regulation as to sanction and no appeal was taken. The result is hard to reconcile with the following observation by the referee:
By attempting to shift the blame for the poor handling of the bankruptcy case to his client, Attorney Woods demonstrates that he has very little insight into the impact of his violations on his clients or the duty of an attorney to protect his clients' interests unless properly relieved of the responsibilities of representation. Given the lack of such insight, it would appear likely to me that Attorney Woods will on some future occasion, once again, fall short of the standard of providing his clients competent legal representation unless the court sends him a strong punitive message.
There are stronger punitive measures available than the sanction imposed here. I have never been much of a fan of the idea that it is a mitigating factor that the client is "difficult." (Mike Frisch)
An Ohio attorney engaged in ethical misconduct in two matters. One involved a deed that the attorney had falsely signed and notarized. He had denied the misconduct until the bar retained a handwriting expert. The second matter involved a promise he made to the Ohio Supreme Court in the false notarization matter-- "he pledged to this court that he would never have another drink, and would never again use marijuana or cocaine. Six days later, [he] was arrested for possession of cocaine. [He] also admitted that prior to his arrest he had consumed several alcoholic beverages." He pled guilty to cocaine possession.
The court imposed a two-year suspension with the second year stayed on conditions that include monitoring of his law practice and sobriety. A dissent finds a "troubling tendency toward recidivism" and lack of control that would warrant an indefinite suspension. (Mike Frisch)