January 19, 2008
The More Things Stay The Same, Or At Least The Talk About It Does
Posted by Alan Childress
AALS panels decrying falling ethics, noting the under-representation of minorities as law students, wondering whether legal ethics can be taught, and suggesting the simple need for more disbarments. The AALS Conference in New York City a few weeks ago? No, some interesting AALS panels in L.A. in 1964, according to a Time story of the time, How to Improve the Legal Profession. The only noticeable differences are the weather in the convention, references to the canons and not the model code, and the term used for minorities -- though as usual there is some talk about the issue but the blame is casually placed elsewhere [it's the law firms = it's USN&WR] and no solution is offered. Here it is:
The weather was balmy and bright in Los Angeles, but a fog of gloom sometimes seemed to invade the Association of American Law Schools convention held there last week. Amid the many speeches and panel discussions, two somber questions recurred several times: Is the legal profession in the U.S. getting only barely passing grades in professional ethics? And is it flunking in social responsibilities?
Truth or Spectacle. One panel worried over the conduct of New York City lawyers, as revealed in a study by Lawyer-Sociologist Jerome E. Carlin. According to Carlin's findings, which are based on hundreds of interviews, more than 20% of the city's lawyers persistently breach canons of professional ethics. Most of the violators, Carlin reported, are lawyers practicing on their own or as members of small firms; in large law firms, standards of conduct run higher.
In another panel, University of Texas Law Professor Jerre S. Williams raised a point that has long troubled many attorneys: the dubious ethics of the all's-fair-in-war tactics used by many successful trial lawyers. Williams argued that it is unethical to have clients use makeup to present a better appearance for the jury, or for lawyers to horse-shed* witnesses before they testify. "Are we trying to get at the truth or put on a spectacle?" Williams asked.
The association's outgoing president, Columbia Law Professor Walter Gellhorn, complained that, except in criminal proceedings, legal services are generally available only to those who can afford them. A penniless accused criminal must be provided with counsel, but lower- and middle-income people with civil problems often must make do without lawyers or "are likely to be served by lawyers with markedly inferior technical and ethical standards." Gellhorn mentioned legal "clinics" as a possibility, along with other substitutes for "traditional representation that cannot now be provided economically."
Gellhorn also expressed concern about the profession's failure to encourage promising young Negroes to study law. "Many law schools are eagerly prepared to welcome Negro entrants, but applicants for admission are rare." Labor Secretary Willard Wirtz weighed in with the suggestion that one big reason for the shortage of Negro law students is the shortage of opportunities for them in the large law firms after graduation. The legal profession, said Wirtz, is "the worst segregated group in our society."
Teaching Honesty. The delegates not only considered the faults of present lawyers, but also how schools might improve the ethics of future lawyers. The professors who spoke were not cheerful on that point either. "I don't think you can teach law students to be honest," said Professor Williams. "Their values have been set before they come to us. I still agree with the oft-made statement that the best way to attain better ethics in the law profession is to have a few good disbarments."
* Lawyers' slang for "preparing" witnesses. The term apparently derives from pre-automobile days, when lawyers often met with their witnesses in horse sheds.
January 18, 2008
Improper Closing Arguments Sent To Bar For Investigation
The Nevada Supreme Court issued an interesting decision yesterday concerning attorney misconduct in closing argument to a jury. In four different cases, the same attorney made "substantially the same closing argument" that "encouraged the jurors to look beyond the law and the relevant facts in deciding the cases before them...amount[ing] to misconduct." The court vacated an earlier opinion and, in this revised opinion, "decline[d] to impose monetary sanctions on defense counsel and his clients." The court reviewed its closing argument jurisprudence, finding that jury nullification, personal opinion and "golden rule" arguments are improper. Different review standards apply "depending on whether the purported attorney misconduct was objected to or not." The opinion refers the attorney to the State Bar for investigation of potential ethical violations.
The court rejected the suggestion that the arguments were proper responses to the conduct of opposing counsel:
"We also reject defendants’ proffered justification that we must consider the plaintiffs’ attorneys’ purported misconduct when addressing Emerson’s unethical conduct. Defendants did not object below to the majority of the statements they now argue are misconduct, and we conclude that defendants have not overcome their failure to object by demonstrating irreparable and fundamental error. Nevertheless, the majority of defendants’ contentions regarding the plaintiffs’ attorneys’ purported misconduct are without merit and do not amount to misconduct. And in many instances, defendants’ arguments regarding plaintiffs’ attorneys’ purported misconduct are founded upon misrepresentations of the plaintiffs’ attorneys’ conduct.
More importantly, a court of law is no place to resort to the argument of 'he said it first' or 'he did it too.' Opposing counsel’s violations of professional standards should never be the basis for engaging in professional misconduct. Merely because another lawyer allegedly disregards the ethical rules does not give the opposing lawyer the right to also disregard the rules. Further, asserting that engaging in misconduct because another lawyer is also engaging in misconduct is in and of itself misconduct."
Two justices did not agree that defense counsel should be referred to the state bar. (Mike Frisch)
D.C. Panel on Law Practice in the Internet Age, Jan. 24, Looks Like Fun
Posted by Alan Childress
The D.C. Bar is cosponsoring a mini-conference -- unfortunately with no CLE credit available -- but with a fun cast and interesting topic. The panel talk will be held over a long lunch on Thurs., Jan. 24, 2008 (or by teleconference for those afar). Its blurb is:
Practicing Law in the E-Court of Public Opinion: How the Internet Can Make or Break a Lawyer's or Law Firm's Reputation and What You Can Do about It - WITH DAVID LAT of ABOVE THE LAW and other national speakers!
In the Internet Age, lawyers and firms are subject to unprecedented public scrutiny. Popular websites like Above the Law provides gossip and behind the scenes news from large law firms, while Avvo allows clients to post their opinions about their attorneys. You'll hear how the web can affect lawyers' reputations, for better or for worse, identify ways to respond to threats to reputation and use the Internet to your advantage and learn about relevant legal concepts like First Amendment, libel and privacy law that relate to your ability to protect your reputation. We'll have a panel of nationally recognized speakers as well as law firm marketing personnel (TBD) who will offer practical tips on guarding and promoting your reputation on line.
All the D.C. events this month are linked here, so look for Jan. 24 to register for this panel. (Many others do carry CLE credit.) The moderator is MyShingle's Carolyn Elefant, and her post on the "star studded panel" and event is here.
A Good Bet
A Nebraska attorney with a practice involving juvenile and family law agreed to represent a client in "the first and only personal injury matter [the attorney] has handled." The attorney filed suit but failed to serve the defendant, the case was dismissed and the statute of limitations on the claim expired. The client filed a bar complaint and a malpractice suit that settled for $2,500. Also, the lawyer's escrow account went out-of-balance as a result of two bad checks from clients. The referee found no misappropriation. There were mitigating factors involving a series of family-related "personal challenges" and a large number of favorable letters from juvenile judges and lawyers.
The Nebraska Supreme Court struck, in my view, the correct balance between competing interests in a bar discipline case by imposing a public reprimand and 18-month period of monitored probation. The question of whether and to what extent an attorney should venture away from his or her area of expertise was an issue that I regularly dealt with as a small firm lawyer. In terms of the result, monitored probation is far preferable to unsupervised probation, which likely is no probation at all. This decision suggests to me that there is a high degree of likelihood that probation will succeed.
The court had less sympathy for an attorney who botched the first postconviction case that he had handled. The attorney failed to file the action for almost two years, ignored disciplinary counsel and delayed returning unearned fees. The court ordered a suspension of 120 days rather than the 30 day suspension proposed by the referee. (Mike Frisch)
January 17, 2008
BE Press Offers New Online Journal on Law, Ethics and Technology
The BE Press series of e-journals has started a new one, linked here, called Studies in Ethics, Law, and Technology. Although the description of its subject clearly includes broader ethical issues of bioethics and medical advancements, like moral issues raised by cloning, the subject does seem to include legal ethics as related to technology. [Alan Childress]
Conflict? What Conflict?
A man named Renfred Spillman and his cousin Antoine Parks were in a car that was stopped by a Florida highway patrol officer. Parks, the driver, was charged with traffic offenses. Spillman was charged with possession of a firearm by a convicted felon, as a result of the discovery of a weapon in the center console of the car.
Spillman and Parks met with attorney Brown together. Spillman paid a fee and left believing he had retained Brown. Brown entered an appearence on behalf of Parks but arranged for another attorney to enter an appearence for Spillman. Brown's "actions towards Spillman were more often those of someone who did represent him than someone who did not." A referee found misconduct (but not on conflicts charges) and recommended that Brown be publicly reprimanded.
The Florida Supreme Court rejected the conclusion that Brown did not engage in a conflict of interest. The interests of the two clients were directly adverse. For that and other ethics violations in the underlying case, the court suspended Brown for ninety days
A Little Misunderstanding
After a series of disciplinary encounters involving reprimands and a consent suspension, a Louisiana lawyer was reinstated in 1992. A thirteen count petition instituting formal charges was filed in 1998, leading to the interim suspension of the attorney in January 2000 and disbarment in October 2000. He has not sought reinstatement.
The Office of Disciplinary Counsel thereafter filed charges alleging that, in two matters, the attorney had continued to practice in violation of the court orders. He remained actively involved in one personal injury case and settled a second case, placing the check in his trust acccount. His defense in the disciplinary case: "he maintained that he was unaware that depositing a settlement check into his client account and disbursing the funds constituted the practice of law...he thought of the practice of law as 'giving advice, going to Court, charging fees for stuff and that kind of thing.' " He also thought he could still negotiate a reduction of medical expenses incurred and speak with the clients concerning their cases.
The Louisiana Supreme Court found that he had engaged in unauthorized practice and ordered not just disbarment, but permanent disbarment. A dissent notes that he had never sought reinstatement, thus "it is not necessary today to consider these additional violations and permanently disbar Respondent from the practice of law." (Mike Frisch)
The web page of the National Organization of Bar Counsel has a summary of a recent decision from a federal district court in Washington state on rating lawyers. The summary states that the holding provides that a web based system of rating lawyers, whatever its real value, is protected by the First Amendment. (Mike Frisch)
The Ohio Supreme Court imposed an indefinite suspension in a case where the attorney had obtained his mother-in-law's power of attorney for his wife after having asserted in other proceedings that the mother-in-law was incompetent. The father-in-law also gave the wife power of attorney. Thereafter, the lawyer deposited the in-laws' pension and retirement checks into his trust account and wrote hundreds of trust checks to cash. While he claimed to have used the cash for the in-laws' benefit, in fact their nursing home expenses went unpaid. Indicted on felony theft charges, the lawyer entered a guilty plea (without admitting guilt) to three misdemeanor counts of defrauding creditors.
The Board of Commissioners on Grievances and Discipline found "[the attorney] and his wife used his client trust account to launder money from the [in-laws'] retirement funds." The court rejected the claim that the lawyer had been sanctioned for invoking his Fifth Amendment rights and that an amendment of the charges violated his due process rights. (Mike Frisch)
Rolling The Dice
A bar discipline case from South Carolina has an interesting aspect with respect to discipline by consent. The agreement submitted to the South Carolina Supreme Court provided that "[the attorney] admits misconduct and consents to the imposition of a range of sanctions from a confidential admonition to a sixty day suspension..." As we have previously noted, there is a world of difference between a confidential admonition and a short suspension.
The misconduct involved a series of nine false notarizations that the witness had been present for a mortgage closing that the attorney had conducted. The court imposed the high end sanction of a sixty day suspension. (Mike Frisch)
January 16, 2008
It's Hard To Supervise An Incarcerated Paralegal
An attorney with a previous record of a public reprimand was suspended for 60 days by the Wisconsin Supreme Court. The attorney was appointed to represent a defendant who was eventually sent to prison. While the client was incarcerated, the lawyer hired him as a paralegal:
"In late 2001 or early 2002, while
incarcerated, J.M., a former paralegal, informed Attorney Compton that he would
be interested in doing legal research work for Attorney Compton. In January 2002 Attorney Compton made
arrangements whereby J.M. would perform legal research for him. Attorney Compton
forwarded a case file to J.M. at the Dodge Correctional Institution without his client's prior knowledge or approval. J.M. performed legal research on this file for Attorney Compton. The referee specifically found that while J.M. was incarcerated, Attorney Compton did not have effective procedures in place to supervise J.M., to ensure that his conduct was compatible with Attorney Compton's professional obligations, or to ensure that J.M. would be able to maintain the confidentiality of the client matter while working from prison."
The lawyer continued to employ J.M. after he was released. The lawyer was found to have failed to adequately supervise his paralegal. However, the court noted the finding that the work of the paralegal was well-performed: "while not excusing the ethical violation or the potential harm to clients, the referee did note that J.M., a former paralegal, apparently performed competently and obtained 'good results' for the clients."
More serious misconduct was involved when the lawyer billed 120 hours of the paralegals time as his own, receiving $4,800 in court-approved fees as a result of false representations. After the misconduct was discovered, he self-reported to the Office of Disciplinary Counsel. One might think that a fraudulent misrepresentation to obtain unearned fees from public funds, committed by a lawyer with a prior record, merits more than a 60 day interruption of practice. (Mike Frisch)
A Great Man, A Great Loss
Fred Grabowsky, who served as the first Bar Counsel for the District of Columbia Court of Appeals from 1974-1983, passed away yesterday. A 1949 graduate of the United States Naval Academy, Fred had served as Marine Corps judge advocate general in Vietnam and in private practice prior to the court's appointment as its Bar Counsel. He then served in the District of Columbia United States Attorneys Office as chief of the misdemeanor section before retiring and pursuing his interest in travel and handball. He also was a founder and President of the National Organization of Bar Counsel. An obituary is linked here.
His older brother Leon Grabowsky was awarded the Navy Cross for heroism in the Second World War. Leon was serving on the U.S.S. Arizona on December 7, 1941, but was in the hospital on shore during the attack.
On a personal level, Fred was a great mentor with a superb sense of humor and tireless work ethic. The people who worked with him loved and respected him. He will be greatly missed but remain an inspiration to all who were fortunate enough to know him. (Mike Frisch)
I wonder if there has been any attempt to study the extent to which probation in disciplinary cases either does or does not turn out well. The Delaware Supreme Court decided a disciplinary matter involving an attorney placed on probation in 2001 for violations of Delaware Rules 1.2(a), 1.4(a), 1.5(f), 3.2 and 8.1(b). The court here concludes that the attorney had "knowingly failed to comply with his obligations under the terms of the 2001 probation and that he knowingly made a false statement of material fact in the course of the ODC investigation of his mishandled client funds." The case involved, among other things, fresh misconduct that "resulted in a substantial loss to the client." The court imposed a three year suspension effective January 25, 2008.
The report of the Board on Professional Responsibility is appended to the decision. The client was a bank. The attorney failed to object to a debtor's discharge in bankruptcy. The bank obtained a $1.15 million judgment against the attorney for malpractice. The lawyer also had engaged in escrow account violations that resulted from "poor bookkeeping practices", failed to fulfill the mental health evaluation requirements of the probation, filed false certifications and failed to cooperate with the investigation.
Did the client know of the probation? I did not see a reference to this in the opinion. I do believe that any lawyer on probation for ethics violations should be required to so advise all clients. Why did it take so long to revoke the probation when it appears that the attorney was non-compliant from the outset? The answer is not clear from the opinion. (Mike Frisch)
January 15, 2008
An Unusual Provision
An agreed disposition was reached in a Virginia bar matter where the attorney had failed to properly handle a criminal appeal to which he had been appointed. The agreement requires the attorney to withdraw from all pending appointed criminal cases, certify his compliance to Bar Counsel with supporting proof and not accept future court appointments in criminal matters. If the lawyer demonstrates compliance with the agreement, the matter will be closed. If not, the lawyer will be suspended for six months. (Mike Frisch)
Without Moral Culpability
The web page of the Wisconsin Supreme Court has posted the findings of fact, conclusions of law and recommendations of a Judicial Conduct Panel in the matter of recently-installed Supreme Court Justice Ziegler. The panel recommends a reprimand for conduct committed as a circuit court judge involving failure to recuse herself in 11 cases involving a bank for which her husband served as a paid member of the board of directors. He had no financial interest in the bank. However, the justice and her husband "had executed a mortgage on their residence in favor of the Bank for $2,000,000 in commercial loans extended by the Bank to [the judge's] husband" but that she "was not involved in obtaining the loans."
The judge agreed that her participation in the cases was improper. The panel found that the judge's decisions in the bank cases were unaffected by her husband's connection and that she had suffered adverse publicity "both during and in the aftermath of a highly contentious campaign for a seat on the supreme court." Reprimand is appropriate because "there is no likelihoood that...violation of the [judicial conduct] Code will recur-either by her, or by other judges...Though Justice Ziegler violated the Code of Judicial Conduct, she did so without moral culpability, which, were that present, would require a different [and presumably harsher] result." (Mike Frisch)
Behind The West Virginia Dissents
We had previously posted comments about dissents in cases from the West Virginia Supreme Court of Appeals that were, to put it mildly, rather pointed in their criticism of justices in the majority. The New York Times (courtesy of Abovethelaw) reports allegations of an potentially improper relationship between one of the majority justices and a key player in the litigation that led to the dissent. This situation is worth watching.
There appears to be a problem with the link to the earlier post-- it is from December 22,2007 under the title "Dissents With Dignity". (Mike Frisch)
Irate Letter Draws Reprimand
The South Carolina Supreme Court issued a public reprimand to an attorney who "wrote a letter to a Workers' Compensation Commissioner venting outrage over a ruling...adverse to [the lawyer's] client. [He] admits the tone of and descriptive speech contained in the letter were abusive and brought disrepute and disrespect to a tribunal engaged in the administration of justice, and the letter could be described as disruptive to the tribunal." He also had written an escrow check to "cash" and wrote a trust check that was returned for insufficient funds.
The court does not but should provide enough information about the "descriptive" language to give lawyers an idea how far over the line the letter was. Of course, this was undoubtedly one of those letters (I've written many myself) that should have been sent to the circular file rather than the named recipient. (Mike Frisch)
Magistrate Suspended For Failure To Supervise Employee
The South Carolina Supreme Court suspended a Magistrate of Jasper County for conduct arising out of the failure to reconcile court bank accounts. The magistrate had attended training sessions on financial accounting obligations but "knowingly did not comply with [the requirements]' in two particulars. After delegating responsibility for the accounts to a court employee, the magistrate was directed to provide the Chief Magistrate with bank reconciliation paperwork. When the employee was asked to produce the records, she "became irate, left for lunch, and never returned to the office." The magistrate then discovered that all deposits were not being made into the accounts. A bank bag containing cash and undeposited checks was found in the employee's desk drawer. A review found a shortage of over $15,000.
The magistrate had relied solely on the employee for an extended period without proper supervision. A 90 day suspension was imposed. (Mike Frisch)
January 14, 2008
The Pennsylvania Supreme Court , Eastern District, held that the Unfair Trade Practices and Consumer Protection Law ("UTPCPL") does not apply to "an attorney's conduct in collecting and distributing settlement proceeds." A law firm had been held vicariously liable for conversion of funds by a firm associate attorney. The suit alleged a variety of lapses by the firm including the UTPCPL violation. After a bench trial, the court awarded treble damages on that claim. The Superior Court affirmed.
The court majority concluded that the ethical and disciplinary rules "exclusively address the conduct complained of in this case... [the law firm's] conduct in collecting and distributing settlement proceeds does not fall within the purview of the [act], but rather within this Court's exclusive regulatory power."
There are concurring and dissenting opinions (linked here and here: "The UTPCPL is not a law directed at regulating attorneys; rather, it is a law of general applicability. Appellants should not be exempted from the reach of the UTPCPL simply because of their status as attorneys.") (Mike Frisch)
Latest Word On Screening
The most recent (December 26, 2007) edition of the ABA/BNA Manual on Professional Conduct has a very useful Analysis & Perspective on the subject of imputed disqualification, with reference to significant cases and ethics opinions as well as a state-by-state summary of ethics rules that permit screening in some circumstances. (Mike Frisch)