July 8, 2008
A subcommittee of the Virginia State Bar imposed an agreed-upon reprimand of an attorney retained through a pre-paid legal services plan to handle a divorce and custody case. The client was unable to attend a hearing but told the lawyer he would accept "shared custody and liberal visitation." The lawyer then signed an agreement that limited visitation to two hours on Sundays. The client objected to the agreed order and the lawyer was granted leave to withdraw. The lawyer also neglected or failed to communicate with several other clients referred by the plan.
The agreed sanction is somewhat creative. The attorney must engage the services of a designated law office management consultant who will review his office procedures. If the consultant deems his procedures deficient, he has 60 days to institute any measures that the consultant recommends. The matter will be closed "[u]pon satisfactory proof that such terms and conditions have been met..." If the terms are not met, the matter of sanction will be reconsidered. (Mike Frisch)
The History of the Internet, Part II: Revenge of the Hens
If only to refute the thesis that the internet is a huge public relations device invented by cats as part of their plan to rule the world, you can watch hens live on the captivating Hencam voyeur site. Note that the hens are British so you may not fully understand them (unless you're reading LPB from England or Wales). The original thesis of the cat-dominance of the internet is found as The History of Blogging, shown right.
Near home, I often drive by a street named Henfer. I admit I always skip the set-up question and answer myself, if only in an internal monolog, by saying, "why...for plucking, of course." Then I laugh out loud; what a dork.
(HatTip for Hencam goes to EE, which also links the FAIL blog, depicting countless real epic failures, such as the Marketing Fail sign saying "We sell inconvenient & unsafe products," reminiscent of Ackroyd's Bag O' Glass. Or the Fine Collection Fail shown left.)
The hen sounds are actually quite comforting as background while blogging.
July 7, 2008
Out At Home Base
The web page of the Washington State Bar Association reports the disbarment of an assistant city prosecutor for the following misconduct:
At all relevant times, Mr. Morris was employed as an assistant city prosecutor for the City of Kennewick, which operated a recreation program (Home Base) that provided a place for teens to go after school. The City of Kennewick and the City Attorney’s Office permitted persons charged with misdemeanor criminal offenses and civil infractions to make donations to Home Base to have their cases dismissed or their charges significantly reduced. On more than one occasion between approximately January 1, 2005, and March 1, 2006, Mr. Morris, in his official capacity as an assistant city attorney, corruptly accepted and agreed to accept money from a defense attorney. Mr. Morris agreed to accept the money from the defense attorney intending to be influenced or rewarded in connection with the reduction or dismissal of charges against the defense attorney’s clients in Benton County District Court. Mr. Morris asserts that he has no personal knowledge as to where the money he received from the defense attorney came from, or as to the intentions of the defense attorney or his clients as to where the money would be deposited. According to the plea agreement Mr. Morris signed on September 11, 2007, the money came from the defense attorney’s clients and was intended by the clients to be donated to Home Base operated by the City of Kennewick. Mr. Morris retained the money he received from the defense attorney for his personal use. It was not donated to Home Base.
The value of the series of transactions involving payment of money to Mr. Morris from the defense attorney for the reduction or dismissal of charges during the relevant time period exceeded $5,000. The precise amount has yet to be judicially determined. In December 2006, Mr. Morris was charged by indictment with violating several federal statutes in connection with the facts set forth above. On September 11, 2007, Mr. Morris pleaded guilty to violating 18 U.S.C. § 666(a)(1)(B) (soliciting a bribe), which is a felony.
Mr. Morris’s conduct violated former RPC 8.4(b), prohibiting a lawyer from committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects; and former RPC 8.4(i), prohibiting a lawyer from committing any act involving moral turpitude, or corruption, or which reflects disregard for the rule of law, whether the same constitutes a felony or misdemeanor or not.
Ethics Of Name Change
An attorney who has practiced under her true name for two decades wished to legally change her name for personal reasons and retain the former name for her law practice. She has established a reputation under the present name. May she do so?
Yes, according to an ethics opinion issued by the Washington State Bar Association, so long as the use of the former name does not mislead the public:
Under the above facts, the inquiring lawyer is not prohibited from continuing to use her current name in her professional capacity after obtaining a legal name change for personal reasons, provided it does not mislead the public and further provided she releases to the WSBA, within 10 days of her name change, all information sufficient to comply with APR 13(d), as hereinafter explained.
The inquiring lawyer also asks the committee to define the phrase “avoid misleading the public” and what is meant by complying with APR 13(d), under these facts. “Misleading the public” is fact dependent, and the comment following RPC 7.1 provides some assistance. The requirements necessary to comply with APR 13(d) are set forth in the rule, but, given the lawyer’s desire to retain her current name in her professional capacity she should also inform the WSBA of this intent so it will continue to list the name under which she practices as her “public” name, while also noting her legal name in its records.
Hard for me to see how the public might be misled by the use of the former name. (Mike Frisch)
Penalty For Client Abandonment
An attorney who had failed to follow through in four retained matters was suspended for six months by the Georgia Supreme Court. The court found mitigation in that the attorney was remorseful and "was suffering significant marital difficulties, which now have been resolved..." Two justices, including the Chief Justice, viewed the suspension as inadequate: "Given [his] admitted abandonment of four clients, I believe the only appropriate punishment is disbarment." In two unrelated matters linked here and here, the court disbarred attorneys who had engaged in somewhat similar misconduct but had failed to participate in the disciplinary proceedings. (Mike Frisch)
Symposium Opportunity: Georgetown Journal of Legal Ethics
[posted by Bill Henderson]
During the upcoming academic year, the Georgetown Center for the Study of the Legal Profession and the Georgetown Journal of Legal Ethics will be co-hosting a symposium on current trends and issues confronting lawyers and law firms. The organizers are particularly interested in work that provides insight into the dynamics of modern practice through the use of qualitative or quantitative empirical research methods. In the spring of 2009, the papers will be presented to a combined academic and practitioner audience at Georgetown University Law Center (travel and lodging paid for by symposium organizers). Researchers interested in participating should submit a working title of the proposed paper/study to Professor Mitt Regan (email@example.com) and Editor-in-Chief Matt Smith (firstname.lastname@example.org) by August 1, 2008. A draft of accepted papers will be due by October 30th; completed drafts will be due by November 30th. Please contact the symposium organizers with any additional questions.
Oversight Leads To Default Judgment
The Wisconsin Supreme Court affirmed a default judgment entered against a company that insured doctors because counsel had neglected to file a responsive pleading on behalf of the company when pleadings were filed on behalf of the individual defendants in a medical malpractice case. the court summarized the key facts:
PIC [the insurer] explained its failure to serve an answer timely as follows: PIC hired counsel to represent PIC and all of PIC's codefendants (most of whom were PIC's insureds) in the action; the counsel hired by PIC intended to serve an answer timely on behalf of all defendants in the action, including PIC; the counsel timely served an answer (which denied the liability of all defendants) on behalf of PIC's codefendants but inadvertently omitted PIC's name from the caption of the answer; counsel's inadvertent omission of PIC's name stemmed from a clerical or computer-based error without PIC's, counsel's, or counsel's staff's fault; the parties continued to litigate the action for more than nine months before anyone noticed PIC's failure to answer and for more than one year before the plaintiff moved for default judgment against PIC; the plaintiff and all other parties knew or believed all along that the counsel representing PIC's codefendants was also representing PIC; and the counsel hired by PIC immediately filed an amended answer including PIC's name in the caption when counsel's prior omission was finally called to his attention.
The court engaged in a lengthy analysis of precedent in Wisconsin and other jurisdictions in concluding that a timely filing on behalf of the individual defendants did not preclude a default against the insurer.
A dissent of three justices would find that default was improper for what it characterized as a scrivener's error:
The majority opinion affirms the court of appeals' conclusion that PIC's failure to answer within the statutorily prescribed time results in the following conclusive factual findings: (1) PIC's insureds were negligent; and (2) PIC's insureds' negligence was causal of plaintiffs' damages. PIC's insureds, in their answer to the amended complaint, denied that their conduct was negligent and denied that their conduct caused plaintiffs' damages, which denials joined those issues of fact and have not been stricken or proven false. Under the direct action statute, Wis. Stat. § 632.24, PIC cannot be liable unless its insureds' conduct was negligent and a cause of plaintiffs' damages. (citation omitted) Therefore, the matter should be returned to the circuit court to litigate the contested factual questions relating to PIC's insureds' conduct. Because the majority opinion disconnects PIC's liability from the insureds' conduct, contrary to the legislative directive, I respectfully dissent.
July 6, 2008
New Advertising Rules In Louisiana
The web page of the Louisiana State Bar Association has an announcement of new advertising rules governing members of the Louisiana Bar. The full text of the new rules, as adopted by the Louisiana Supreme Court, is linked here. The new rules will be effective December 1, 2008. (Mike Frisch)
Memo to Will Shortz
Vanity Fair on the Collapse of Bear Stearns
In the July 3 Vanity Fair, Bryan Burrough investigated the collapse in-depth from Wall Street sources -- and questioned whether it died of its own weight:
The fall of Bear Stearns wasn’t just another financial collapse. There has never been anything on Wall Street to compare to it: a “run” on a major investment bank, caused in large part not by a criminal indictment or some mammoth quarterly loss but by rumor and innuendo that, as best one can tell, had little basis in fact. Bear had endured more than its share of self-inflicted wounds in the previous year, but there was no reason it had to die that week in March.
What happened? Was it death by natural causes, or was it, as some suspect, murder? More than a few veteran Wall Streeters believe an investigation by the Securities and Exchange Commission will uncover evidence that Bear was the victim of a gigantic “bear raid”—that is, a malicious attack brought by so-called short-sellers, the vultures of Wall Street, who make bets that a firm’s stock will go down.
Part of the blame may go to bloggers. We live in a different age now, and bloggers and viral videos can change the world fundamentally from sunrise to sunset. (Just ask Hillary and Barack.)
Blogreaction to the VF article is, inter alia, here and here. Also, the "deep capture" website
was a bit ahead of the story, cites it, but questions the specific patient zero, Ken Griffin, named by VF. Says dc's Mark Mitchell, "It will be up to the SEC and DOJ to identify the true culprits, but
perhaps they could start by interviewing the hedge fund managers who were short Bear Stearns." Quite critical blogreaction is also here and here.
Jeff and others will recall that Bryan Burrough coauthored one of the most fascinating books on Wall Street and RJR, Barbarians at the Gate (also a hilarious HBO movie worth renting, with screenplay by Larry Gelbart of M*A*S*H and Tootsie fame).
Criminal Defense Attorneys Take Note: False Positive Field Tests For Illegal Drugs
Posted by Alan Childress
False positives for illegal GHB, similar to Rohypnol, are being reported from everyday shampoos and soaps, even some made by Palmolive and J&J. It may have started from the 2007 arrest -- and nearly four awful days in county jail -- of Germs punk rock drummer Don Bolles for possession of GHB "found" in his peppermint Dr. Bronner's soap, in his van on the way to an AA meeting. (Profiling?) GHB was detected by the ODV brand reagent sold for the field, specifically the NarcoPouch 928. (Yes, the real product name, not an SNL skit.) A thorough report on the initial story is in L.A. CityBeat here. See also USA Today. And Orange County Weekly added, the next week, that "the OC district attorney’s office announced that further tests revealed there was, in fact, no GHB in the soap, and all charges against Bolles were dropped."
Follow-up in media stories now repeated on such blogs as Legal Juice today, and Stop The Drug War last year, add this footnote: this was not an isolated case of a false positive, particularly for the reagent in ODV's NarcoPouch. Later testing showed positive results in other, more mundane home supplies. Though oddly not in any Barry White album. The Bronner soap president started to look further (as quoted in Punk Rocker's Jailing Raises Questions About Field Drug Tests):
Bronner's campaign isn't ending with Bolles' exoneration. At least four other soaps have resulted in false positives in the Narcopouch 928 GHB test kit, including Neutrogena and Tom's of Maine. "We are testing more products and videotaping those tests. Products from Johnson & Johnson and Palmolive are testing positive, so we'll go to the Cosmetics, Toiletries and Fragrances Association, show them these products are testing positive, and then work through them to explore options for addressing the situation with these field drug test kits. Ideally, we could force a product recall, but we need at least a disclaimer if this product is going to continue to be sold. If they don't know soap tests positive, what else don't they know?"
The other odd part of the CityBeat story is that the initial communication to the Bronner soap company was in a phone message misunderstood by another company exec , who heard it as THC, not GHB, and sort of dismissed it as business as usual. See why, after the fold.
That's because, in their product, "in fact the drug [THC] is present in such a minute amount it is undetectable and hemp products have been declared legal to sell in the U.S. under a ruling by the Ninth Circuit Court. That case was also brought by Dr. Bronner's Magic Soaps." The USA Today story quotes the company president as saying "police field tests of Magic Soap have occasionally indicated THC, the active ingredient in marijuana, because the soap includes hemp oil." Good to know. Bronner helped pay Bolles' legal fees.
Anyway, Bolles was a pretty good sport about this all, and laughed that a Germ got busted for soap. But it is, seriously, a cautionary tale for field tests of all kinds, and the notorious judicial and jury over-faith in them. Criminal defense attorneys should be armed to reply, and prosecutors should not have blind faith.
Welcome Back to Admin Law Prof Blog, and (Unrelated) Try to Die Before 2011
Posted by Alan Childress
Two notes of interest around the blogosphere (posted so early in the U.S. that only Patrick O'D will see them now):
-- I was the 10th visitor to the new Administrative Law Prof Blog, resurrected July 5, 2008 and part of the LPB network. I was reading their post entitled test. Its text is: "test." (Ah, yes, I remember Jeff's first post, of equal import and intent, albeit not as succinct.) Good luck guys, though differentiate titles from text, and learn Jeff's Law: never reply to an angry anonymous commenter. Welcome!
-- Another LPB blog, Wills, Trusts & Estates Prof Blog, has 3 to 4 doses of fiscal reality for the few of us left who let nature run its course. Find them in Gerry Beyer's posts called Planning to Die in 2010, More on Dying in 2010, and my favorite: Should you let a beneficiary prepare your food? The latter is a follow up to his astute post, Don't go scuba diving with a beneficiary -- especially if he just asked you to increase your life insurance. A bit morbid, but I guess the blog's subject matter defintionally tilts that way. Taxes do alter human behavior; I imagine lots of decisions about life support, if not super size meals or surgery options, to be affected trying to fine-time the end -- after 2009, before 2011 -- in line with current law on the estate tax. Hold on, grandma, we love you dearly! But don't overstay.
Oh To Be Pro Se: Still The Champ In Frank and Unprofessional Pleading?
Posted by Alan Childress
The Texas court pleading going around the internet that raises the "dumbass defense" against a plaintiff and calls him a "f---ing idiot" [without dashes] has been been revealed to be a fake by Ray Ward and his astute commenters at the new legal writer blog. That leaves, Ray says in a comment, the 2006 notice of appeal of one George Swinyer, Jr. as "the champ in use of salty language in a court pleading." Next week is its two-year anniversary and it has not been knocked off its block yet, has it? (George Swinyer, Sr. must be so proud.)
Here it is in its stark and handwritten glory, and it is not professional, but give it this: it was sent to the right court. Lots of real lawyers intuitively file the notice of appeal in the court of appeal (wrongly), or otherwise mess up the timing of it which may result in a huge malpractice lawsuit (or just a lawsuit that, luckily to the attorney, leads to a finding of no causation because the appeal would have been lost on the merits anyway). I am not suggesting, however, that this one go into your forms-and-exemplar file.
Maybe the author of this notice of appeal is more ideally suited, personality wise, to become a pro se transactional attorney. (At least that way, Swinyer would not have -- ahem -- "perfected an appeal" ... that was destined to be pretty much summarily remanded by the appeals court, and found "not in good faith" by the same district judge, as reported by Legal Juice blog with details about the underlying lawsuit and the obligatory use of "donut" to insult a prison guard.)
This certainly beats out for utter frankness and ethical candor the midwestern appellate attorney who asked for argument to be rescheduled on the grounds that his wife was making him take a 350-mile bicycle tour in Oregon, even though "Counsel assures this panel that Oral Argument would be more enjoyable than the aforementioned bike trip."