Wednesday, July 30, 2008

Tenth Time Is A Revocation

The Michigan Attorney Discipline Board rejected a proposed 120 day suspension consecutive to a three-year suspension presently being served by a disciplined attorney. The case involved mishandling a matter and providing false information to the client. The attorney also failed to participate in the disciplinary process. The board concluded that revocation was the correct sanction, noting that the attorney had an "abysmal" record of prior discipline that included nine earlier sanction orders. (Mike Frisch)

July 30, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Settlement Does Not Preclude Malpractice Claim

The New Jersey Appellate Division reversed an order granting summary judgment to the defendant in a legal malpractice case. Plaintiff and his uncle had agreed to pursue a joint business venture with plaintiff as a full-time employee. The lawyer handled the purchase transaction, creating two business entities and attending the settlement. Thereafter, a dispute arose between plaintiff and his uncle. He claimed malpractice in the failure of the lawyer to properly document the agreement with his uncle.

The present suit was filed after the plaintiff and his uncle had settled. Consistent with another recent decision that we reported, the court held that the trial court erred in holding that the settlement barred the malpractice claim. The court notes the uncle also has sued the attorney for malpractice and that the case had survived summary judgment. Here, the court concludes that the fact that only uncle paid for the representation does not matter in evaluating the viability of the malpractice claim. (Mike Frisch)

July 30, 2008 in Clients | Permalink | Comments (0) | TrackBack (0)

Recusal Not Required

A litigant in a hotly-contested defamation suit sought the recusal of a Wisconsin Supreme Court justice on a variety of grounds that included political support of the justice by opposing counsel and the judge's appearance at a fund raiser in support of lesbian, gay, bisexual and transgender rights. The petition was filed after the court had rendered an adverse judgment in the underlying case. The supreme court today denied the recusal motion in the attached opinion. The court determined that the justice had not sought the endorsement of counsel and did not engage in any impropriety in attending the rally:

In addition to there being no requirement that a judicial candidate disclose all contributions to his or her campaign, the record before us does not support Donohoo's assertion that Justice Butler violated his campaign promise regarding contributions. According to the materials Donohoo has submitted, Justice Butler said he would refuse contributions from parties with pending cases before the court, but would accept and disclose donations from attorneys with pending cases. From the record before us, it appears this is precisely what happened. Justice Butler accepted and disclosed a $300 contribution from Attorney Pines. As the Judicial Commission noted, Bock and Irvings were not parties to a pending action. In addition, nowhere does Donohoo assert that Justice Butler knew that Bock or Irvings were board members of Fair Wisconsin. The code of judicial conduct does not require judicial candidates to attempt to research every possible organization with which contributors may have an affiliation. Such a requirement would be unduly burdensome to candidates for judicial office and we decline to impose it.

As to Donohoo's claim that Justice Butler acted improperly in attending the fund raiser, the Judicial Commission noted that "[j]udges and candidates for judicial office can announce their views on political and legal issues as long as they are not pledges or promises to decide cases in a certain way."

The court also was troubled by the timing of the motion. (Mike Frisch)

July 30, 2008 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Both Sides Now

An attorney with a record of prior discipline was suspended for 18 months by the Wisconsin Supreme Court. The case involved a husband and wife who were each represented by counsel in a divorce case that was scheduled for trial. Husband suggested to wife that they would be better off with a single lawyer. Respondent agreed to be that lawyer. The other attorneys withdrew and Respondent did not promptly enter an appearance. His attempt to postpone the trial failed as he was not yet counsel of record in the case.

At trial, he purported to represent only the husband. He failed to secure financial information pertinent to wife's rights and otherwise favored husband:

...the referee found that the "credible evidence establishes that Attorney Gamiño did not advise N.B. before the final hearing that he would not be representing her in the divorce action." Attorney Gamiño thus violated SCR 20:1.9(a),[4] which provides that a lawyer who has formerly represented a client in a matter shall not represent another person in the same or a substantially similar matter in which the person's interests are materially adverse to the interests of the former client unless the former client consents in writing after consultation. The referee observed:

N.B. had no real information regarding her husband's pension accounts. She was disabled under Social Security and likely could not work. She had been a past victim of domestic abuse by E.B.. The marital settlement agreement did not give her the $98,000 that she was to get from her husband's known pension accounts. Under the guise of maintenance, she was to get $500 per month toward her share (the $98,000) of the property division. However, those payments were not guaranteed in the event of E.B.'s death. This approach meant that the alleged maintenance was a tax deductible expense for E.B. and N.B. would be obligated to pay taxes on what in fact were payments to her over time of her share of the marital estate. Attorney Gamiño knew or should have known all of this information. It was as expert witness Hickey said. The conflict was not waivable by Attorney Gamiño regarding the adverse position of these parties. Under Attorney Gamiño's duty of loyalty to N.B., he was obligated to disabuse N.B. as to the patently unfair divorce agreement that was being offered to the court. N.B. could potentially waive the conflict had she been informed of her rights, but there was no such advice given to N.B. by Attorney Gamiño and no written waiver ever was prepared or signed. Attorney Gamiño had critical knowledge as to N.B. that created an insurmountable conflict and made it impossible for him to continue to represent E.B., an adverse party to N.B., his former client, in the divorce.

Thus, the referee concluded that the OLR established by clear, satisfactory and convincing evidence that Attorney Gamiño violated [conflicts rules].

In imposing sanction, the court considered the fact that this conduct occurred in the same time frame as the earlier sanction, which involved an improper sexual relationship with a client and the mother of a juvenile client. The court's order includes a CLE requirement, but I think it will take more than CLE to educate him if he did not see the non-waivable conflict here. (Mike Frisch)

July 30, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Sokol on Obama as Teacher

Posted by Jeff Lipshaw

Danny Sokol (Florida, left), over at Antitrust and Competition Policy Blog (A Member of the Law Professor Blogs Network), provides additional detail (he was also quoted in the New York Times story) on his Sokol_small experience with Barack Obama while Danny was a student at the University of Chicago Law School.  His account confirms other stories I've heard about Obama's genuineness.  When I was helping out (somewhat) back in the early primary season, some of the people who were working up in New Hampshire told me about the Senator coming out of a building and throwing snowballs at the volunteers, leaving them in something of a quandary - "do we throw snowballs back?  are the Secret Service agents going to object if we do?"

It's also interesting to see peers and acquaintances go from being private figures to public figures in full view, particularly when, as Danny points out, part of your appeal and, indeed, charisma, is your individual attention to people.  I've experienced the "looking beyond me to the next person" sense in talking to a number of politicians, and in fairness, the number of people who make demands on a mayor's or governor's or senator's or candidate's time simply forecloses the possibility of that now public person being everybody's friend. 

July 30, 2008 in Hot Topics, Law & Society, Lawyers & Popular Culture, Teaching & Curriculum | Permalink | Comments (0) | TrackBack (0)

Pitting Client Against Client

A criminal defendant ("petitioner") who was represented jointly along with her spouse in connection with drug charges established that counsel labored under a conflict of interest. Thus, the South Carolina Supreme Court concluded that the trial court improperly denied post-conviction relief:

At the PCR hearing, both plea counsel and Petitioner testified   that counsel spent more time preparing Husband’s case despite the fact that   Petitioner was pleading guilty to a majority of the charged offenses and faced   a more severe sentence. 

In terms of the conflict of interest, plea counsel acknowledged   that she discussed this issue with Husband, but could not recall specifically   talking to Petitioner about such a conflict.  Plea counsel also admitted that   she argued for leniency in Husband’s case and requested the plea judge   reconsider his sentence.  In contrast, plea counsel did not make these   arguments on behalf of Petitioner.  Moreover, Petitioner’s and Husband’s   interests were adverse to one another given Petitioner pleaded guilty to the   majority of the drug charges whereas Husband pleaded guilty to a single charge   of PWID marijuana within proximity of a school.  Significantly, plea counsel   stated at the plea proceeding that Husband was originally “charged with   everything,” but she “was able to get the solicitor who had the case at the   time to dismiss all of his cases.”  A review of the plea proceeding also   reveals that plea counsel argued for leniency on behalf of Husband by comparing   his more limited involvement in the crimes to that of Petitioner.  We believe   plea counsel’s approach essentially pitted Husband against Petitioner, which   was clearly detrimental to Petitioner’s interests.

Under the circumstances, the court held that the petitioner need not demonstrate prejudice in order to establish entitlement to relief. (Mike Frisch)

July 30, 2008 in Ethics | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 29, 2008

Class of 2007: A More Extreme Bi-Modal Distribution

[By Bill Henderson, cross-posted to ELS Blog]

NALP just published its 2007 edition of Jobs & JD's. One topic of interest to students, lawyers, law firms, and legal educators is the change in salary distribution from 2006 to 2007.  The now famous 2006 bi-modal distribution was vivid evidence that the U.S. legal profession is undergoing significant structural change.  As shown in the graph below (from this NALP webpage entitled "Another Picture Worth a 1,000 Words"), the underlying stressors are even more pronounced for the class of 2007. 


The sample is based on 23,337 law school graduates from the class of 2007 who reported salary information.  Note, however, that 197 ABA-Accredited law schools graduated 43,518 students in 2007.  Although we know the types of jobs taken by 40,416 grads, only 57.7% of this group provided salary information.  If I had to wager on the direction of underreporting, I would predict it was under-inclusive of graduates with lower salaries and those who did not pass the bar.  Why?  Aside from the human psychology that it is easier to share flattering rather than embarrassing information, the roughly 7,500 jobs under the second mode are fairly close to figures I have seen from ALM and NALP data, which are provided by large law firms rather than individual students. See, e.g., charts in this NLJ article.

This bias, however, is not necessarily good news.  In the above graph, 32.5% of the law graduates took jobs with starting salaries in the $100K+ range; but the true percentage for the class of 2007 is probably lower.   Some facts and then one normative observation.  The facts first:

More after the jump ...

Continue reading

July 29, 2008 in Associates, Clients, In-House, Law Firms, The Practice | Permalink | Comments (7) | TrackBack (0)

Sanction For Crimes Unrelated To Practice

The Pennsylvania Supreme Court has adopted  a recommendation of a three-year suspension of an attorney retroactive to December 2005. The attorney had been involved in a series of drug-related crimes during a period of unemployment after graduating from law school in 1999 and completing clerkships in 2001. She has been in a recovery program since 2004. Although the attorney had not reported criminal convictions as required by Pennsylvania bar rules, she had been otherwise cooperative with the disciplinary process. The report of the disciplinary board is appended to the court's order. (Mike Frisch)

July 29, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

New Edition Out of Handbook on Privilege

5190435_big The ABA announces publication of a new fourth edition of Vincent Walkowiak's book, The Attorney-Client Privilege in Civil Litigation.  Here is the webpage

The book is an edited collection of input from various lawyers.  It is in one volume and geared to practitioners, and also considers work product privilege. 

[Alan Childress]

July 29, 2008 in Privilege | Permalink | Comments (0) | TrackBack (0)

Burke and McCouch on Ethics of Tax Shelter Attorney for Jenkins & Gilchrist

Posted by Alan Childress

Karen Burke and Grayson McCouch (both at U. of San Diego) recently posted to SSRN an article on the tax lawyer Paul Daugerdas, whose shelter opinions led to the Jenkens & Gilchrist firm's collapse, Cobra Strikes Back: Anatomy of a Tax Shelter.  Here is a post on it at TaxProf.  Our readers might be interested in the legal profession aspects of the article.  The abstract is below the fold.

Continue reading

July 29, 2008 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)

Billing Misconduct Alleged

The Illinois ARDC has filed a complaint alleging that the attorney, while a general litigation associate as Kirkland and Ellis, falsely billed a client for legal services. The complaint alleges, in part:

In March 2006, and from June 2006 through July 2007, Respondent prepared timekeeping records and the firm sent invoices for his purported services to Ernst & Young in the In re: American Italian Pasta Company Securities Litigation matter. On the timekeeping records Respondent provided to the firm, Respondent indicated he expended 736.2 hours providing legal services to Ernst & Young in the In re: American Italian Pasta Company Securities Litigation matter. At Respondent’s hourly rate, these hours resulted in billings of $221,766.

Of the 736.2 hours recorded by Respondent in March 2006, and from June 2006, through July 2007, on his timekeeping records and on the invoices to Ernst & Young, as set forth in the table below, approximately 344.3 hours totaling $106,361 were false.

I could not tell from from the complaint how this matter came to the attention of disciplinary authorities. That is always interesting to me. (Mike Frisch)

July 29, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Litigation For the Yacht Club Set

In an opinion issued today, the New York Appellate Division for the First Judicial Department resolved an issue regarding the appropriate Challenger of Record for the coming America's Cup race. The court found in favor of the Golden Gate Yacht Club ("GGYC") and against a Swiss entry("SNG"). The legal issue turned on the phrase "having for its annual regatta" in the Deed of Gift for the race. The full governing language:

"Any organized Yacht Club of a foreign country, incorporated, patented, or licensed by the legislature, admiralty, or other executive department, having for its annual regatta an ocean water course on the sea, or on an arm of the sea, or one which combines both, shall always be entitled to the right of sailing a match of this Cup, with a yacht or vessel propelled by sails only and constructed in the country to which the Challenging Club belongs, against any one yacht or vessel constructed in the country of the Club holding the Cup."

The court's majority gives us a grammar lesson:

This appeal turns on the meaning of the words "having for its annual regatta" as used in the Deed of Gift. In making its determination, the motion court found that the phrase is "plainly understood to mean that it is an on-going activity; the activity has taken place and is continuing." The court further found that the phrase "implies that the organization has had one or more regattas in the past, and will continue to have them in the future." Accordingly, the court reasoned that CNEV was not a qualified Challenger of Record because it had not held an annual regatta as of the date of its challenge. The Deed of Gift, a trust instrument, "is to be construed as written and the settlor's intention determined solely from the unambiguous language of the instrument itself" (Mercury Bay Boating Club, 76 NY2d at 267). As SNG would have it, the annual regatta requirement can be satisfied where the yacht club "intends to hold an annual regatta and does so prior to the date of its proposed match." GGYC disputes SNG's construction, arguing that " [h]aving' as commonly used in the law does not mean not having now.' It means possess.' And, in this context, it means, possess' an annual regatta." GGYC's argument is untenable because, as a matter of standard English usage, the noun "regatta" cannot be the proper object of the verb "possess."

The record includes an excerpt from An English Grammar For the Use of High School Academy, and College Classes, by W. M. Baskervill and J. W. Sewell [1896]. According to this treatise, participles, such as "having," "express action in a general way, without limiting the action to any time, or asserting it of any subject." Participles "cannot be divided into tenses (present, past, etc.), because they have no tense of their own, but derive their tense from the verb on which they depend." An example given in the treatise is "fulfilling," which depends on the past-tense verb, "walked," in the following: "He walked conscientiously through the services of the day, fulfilling every section the minutest, etc." A further example is "dancing," which depends on a present-tense verb in the following verse:

"Now the bright morning star, day's harbinger,

Comes dancing from the East."

In accordance with the foregoing, "having for its annual regatta" can only be interpreted through strained English usage. If explicable at all, the phrase is subject to conflicting interpretations. We therefore hold that the Deed of Gift's annual regatta requirement is ambiguous. GGYC argued below that the participle, "having," in the Deed, derives its tense from the words "shall always be entitled." "Shall," however, is a word used to form the future tense (Lutz and Stevenson, The Writer's Digest Grammar Desk Reference § 1C, at 16-17). Accordingly, GGYC's argument only confirms the ambiguity of the annual regatta requirement.

A court may resort to extrinsic evidence to construe an ambiguous provision of a trust instrument (see Mercury Bay Boating Club, 76 NY2d at 267). In this instance, the Cup's recent history is a source of relevant extrinsic evidence. SNG challenged for the 31st America's Cup by letter to the Royal New Zealand Yacht Squadron (RNZYS), the then trustee, on August 18, 2000. SNG, a Swiss yacht club, is situated on Lake Geneva and, as of the date of its challenge, had never held a regatta on an ocean water course, as required by the Deed...

A dissent would find against the Swiss yacht club:

I am also in agreement with the motion court that GGYC's Notice of Challenge is in compliance with, and therefore valid under, the provisions of the Deed. In Mercury Bay, the Court of Appeals noted that the Deed "broadly defines the vessels eligible to compete in the match" (76 NY2d at 266), and "permits the competitors to both construct and race the fastest vessels possible so long as they fall within the broad criteria of the deed... [which document makes it] clear that the design and construction of the yachts as well as the races, are part of the competition contemplated" (id. at 269).

Here, GGYC's notice and certificate contain all the information required by the Deed, although SNG takes issue with GGYC's description of the challenging vessel in the certificate as a "keel yacht" while specifying dimensions suggestive of a multi-hulled vessel, such as a catamaran, thereby creating an ambiguity and rendering the challenge invalid. It is clear, however, that even if the certificate contained a possible ambiguity, SNG was not at any time actually confused or misled by the Certificate, as the record indicates that SNG fully understood that GGYC was going to race a catamaran. The general counsel of SNG's representative racing team, in an affidavit submitted in support of SNG's motion for summary judgment, averred that the dimensions delineated in the certificate "can only be for a multi-hulled vessel - presumably a catamaran," while not referring to any confusing or inconsistent language on that point. Moreover, SNG's protestations of confusion are belied by its own reply brief in which SNG acknowledges that GGYC has proposed to compete with a "catamaran goliath."

(Mike Frisch)

July 29, 2008 in Law & Society | Permalink | Comments (1) | TrackBack (1)

"An Unfortunate Truth"

In another entry in the long-running war in the West Virginia Supreme Court of Appeals, the Acting Chief Justice yesterday issued a concurring opinion defending his decision not to recuse himself in a matter and lamenting the state's judicial election process:

The opinions of the judge of a highest court of a state are no   place for intemperate denunciation of the judge's colleagues,   violent invective, attributings of bad motives to the majority of   the court, and insinuations of incompetence, negligence,   prejudice, or obtuseness of fellow members of the court.

Roscoe Pound, Cacoethes Dissentiendi: The Heated Judicial Dissent, 39 A.B.A. J. 794, 795   (1953). 

There is an important difference between a thoughtful, well-reasoned separate   opinion or order and one which is grounded in the political manipulation of legal doctrine;   and in the case of ensuring a stable, predictable and fair judicial system, that difference   matters.  Judges who use their opinions and orders simply as sensationalistic bombast by   which to convey partisan agendas or who pander to emotion rather than legal reason do a   disservice to the rule of law and to the institution they serve.

  It is a testament to the strength of our justice system that judges may disagree   and do so openly in separate opinions.  A well-reasoned and legally sound separate opinion   carries with it the opportunity for pointing out differences with the opinions of the other   members of the court without undermining public confidence in the judiciary.  Hon. Ruth   Bader Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U.L. Rev. 1185, 1196 (1992).  By   furthering positive progress in the development of law, a well-honed opinion serves as an   invaluable instructional tool to judges, lawyers, legal scholars, law students and even to a   judge's colleagues.  “[T]he effective judge . . . strives to persuade, and not to pontificate.   [He] speaks in 'a moderate and restrained' voice, engaging in a dialogue with, not a diatribe   against . . . [his] own colleagues.” Id. at 1186 (internal quotations omitted).  A separate   opinion should never “generate more heat than light,” but rather should “'stand on its own   footing,' . . . spell[ing] out differences without jeopardizing collegiality or public respect for   and confidence in the judiciary.” Id. at 1194, 1196 (internal quotations omitted).  

If the touchstone of a judicial system's fairness is actual justice, which I believe it is, its legitimacy is measured in actualities, not in the manipulation of appearances   or the vagaries of sensationalism.  Actual justice derives from actual impartiality in decision-making and is conveyed in well-written legal opinions which are founded in the rule of law   -- not in orders, opinions or public pronouncements by judicial officers reflecting   partisanship, contempt for other members of this Court, or their staff, bias toward or against   the parties, or a pre-judging of the issues.  

  It is an unfortunate truth that judicial officers in West Virginia must stand for   office in political elections.  Notwithstanding this political selection method, the public's confidence in our system of justice is necessarily undermined and the stability and   predictability of the rule of law is compromised when politics cross the threshold of our   Court.  The most important factors therefore affecting the public's perception of actual   justice in this Court necessarily are the actual decisions of this Court, and its members, over time, the professional demeanor of this Court's members, and the quality of the written opinions and orders which we produce in specific cases. 

By baiting emotions, I believe the Dissenting opinion adopts a distinctly “political voice” rather than a “judicial voice.” With due respect to my dissenting colleagues,   this case does not present a close call on the basis of the rule of law.  Because the Majority   decision possesses such a deep strength of legal authority, I do not believe that the Dissenting opinion in any way weakens the authority or substance of the Court's decision.

(Mike Frisch)

July 29, 2008 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Collateral Estoppel In Bar Discipline

The full Massachusetts Supreme Judicial Court ordered an indefinite suspension of an attorney who had received into escrow funds specifically designated to pay a settlement. Instead, the lawyer sought to establish a basis to pay his firm and his father's consulting business out of the funds received. The father was a retired lawyer and shareholder of the son's law firm. The court concluded:

The respondent had no right to use GPFC's escrowed funds to pay past or anticipated future legal and consulting fees owed by Commonwealth Snack to Brauer & Brauer. Nonetheless, the respondent transferred an additional $23,000 of GPFC's escrowed funds to a separate escrow account for Brauer & Brauer to pay $19,628.90 in fees and expenses that Commonwealth Snack owed to the law firm for past work, plus another $3,371.10 to cover anticipated fees for future work. On September 5, 1996, the respondent wired the remaining $650,000 of GPFC's escrowed funds to the China Trust Bank, without explaining the $100,000 shortfall. The next day, the respondent notified GPFC by letter that he had placed $77,000 of its escrowed funds in a separate escrow account pursuant to a court order, and that he had put an additional $23,000 of its escrowed funds in a different escrow account for the payment of legal fees that Commonwealth Snack owed to Brauer & Brauer.

The court rejected the attorney's claim that he was improperly collaterally estopped from challenging findings in prior court proceedings:

Here, when bar counsel filed the petition for discipline, attached thereto were the determinations of the Superior Court judge and the Appeals Court, which subsequently would be reviewed by the board's chairman for their preclusive effect. In its action before the Superior Court, GPFC alleged that the respondent had converted GPFC's funds, and it sought to recover $100,000 that had been misappropriated. "The elements of conversion require that a defendant be proved to have 'intentionally or wrongfully exercise[d] acts of ownership, control or dominion over personal property to which he has no right of possession at the time....' " Grand Pac. Fin. Corp. v. Brauer, 57 Mass.App.Ct. 407, 412 (2003), quoting Abington Nat'l Bank v. Ashwood Homes, Inc., 19 Mass.App.Ct. 503, 507 (1985).  In concluding that the elements of conversion had been satisfied, the judge determined, inter alia, that (1) the respondent knew that he had received the $750,000 from GPFC in accordance with the terms of the escrow agreement between GPFC and Commonwealth Snack pertaining to the use of such funds; (2) the respondent was obligated to return such funds to GPFC on request; (3) the respondent had no legal right to retain such funds to pay past or future legal or consulting fees owed by Commonwealth Snack to Brauer & Brauer and Decnos; (4) the respondent intentionally exercised dominion over the funds and deprived GPFC of their use; (5) the respondent intentionally delayed returning the funds to GPFC so that Decnos could obtain an attachment; (6) the respondent's father knew that GPFC had demanded the return of its escrowed funds and that Commonwealth Snack had instructed Brauer & Brauer to return those funds to the China Trust Bank; and (7) the respondent failed to inform the Dedham District Court of the facts surrounding the escrow agreement. On appeal, after reviewing the judge's "comprehensive" findings, the Appeals Court stated that such findings were "amply supported in the record." Grand Pac. Fin. Corp. v. Brauer, supra at 409.


We agree with bar counsel that the factual circumstances pertaining to the issue whether the respondent had converted funds belonging to GPFC were actually litigated, and the judge's findings of fact and conclusions of law on that issue were essential to the final judgment in GPFC's favor on its conversion claim. The judge's findings were mirrored in the allegations of misconduct set forth in the petition for discipline, with the exception of paragraph 17 of the petition, pertaining to purported conflicts of interest. See note 8, supra. Accordingly, the board's chairman did not err in concluding that the respondent should be precluded from challenging the factual allegations set forth in the petition for discipline (except paragraph 17), where those facts were established adversely to the respondent in proceedings before the Superior Court.

If the link does not work, the case is Matter of Brauer, decided July 28, 2008. (Mike Frisch)


July 29, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Removed Magistrate Reprimanded

The South Carolina Supreme Court issued a public reprimand of a now-resigned Beaufort County magistrate for the following misconduct:

Respondent admits in the Agreement for Discipline by Consent that   he made inappropriate statements in commenting on a warrant.  Specifically,   respondent referred to the use of crack cocaine and addiction thereto as a   “black man’s disease.”  On another occasion, respondent reacted in an overly   harsh manner to comments made by a speaker at a seminar on criminal domestic   violence.

Respondent also admits that during a bond hearing, he directed a   defendant in a criminal domestic violence case to look at the victim, which was   contrary to instructions given to the defendant by the transportation officer   from the detention center.  While conducting bond court on another occasion,   respondent incorrectly advised a defendant of the penalty for the charge   against the defendant.

Finally, respondent admits engaging in behavior that, while   unintentional, could reasonably have been viewed as inappropriate by female   employees.

(Mike Frisch)

July 29, 2008 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Part II: How most law firms misapply the "Cravath system"

[Posted by Bill Henderson, cross-posted to ELS Blog]

In my last post, I discussed the linkage between the bimodal distribution and the emphasis on credentials under the "Cravath system."  I also stated that most law firms misunderstood the internal logic of the original Cravath model and promised to elaborate in a subsequent post.   This is the promised entry. 

One note of context:  this post is not a history lesson.  The Cravath system reflects a profoundly powerful method of developing human assets.  Cravath started with very good associates/inputs  and turned them into truly exceptional lawyers who were in high demand by clients and other firms.   Moreover, the Cravath system required lawyers to work together collaboratively to further the clients' interests.  This resulted in efficient and highly effective legal services that engendered the abiding loyalty of clients and more demand for the firm's services. See Results or Résumés at 4 & n. 13 (discussing concept of firm-specific capital). In other words, under the true Cravath system, everyone comes out ahead. Two caveats:  (1) the first-mover--here, Cravath 108 years ago--garners the most benefit; (2) if a firm neglects a key element--e.g., investing in associates--the model generates no competitive advantage.

Cravath_history [Sources: The Cravath system described below come primarily from Robert Swaine's 1948 history of the firm and other contemporaneous sources from the 50s, 60s, and 70s, which I will cite as appropriate.]

Recruiting Elite Law School Graduates

One of the hallmarks of the Cravath system is the recruitment of elite law school graduates.  As of 1948, Cravath, Swaine & Moore and its predecessor firm had employed a total of 454 law school graduates as associates.   Of this total, 67.7% attended Harvard (128), Columbia (124), or Yale (54).  According to Swaine, "in recent years there has been an increasing number from the law schools of the Universities of Virginia and Michigan."  These two schools rounded out the top five :  (UVA 30, Michigan 26).

Cravath's emphasis on credentials, however, had a clear economic logic that was designed to compensate for the deficiencies of early 20th century legal education.  During this period, most law schools required little or no college education.   In contrast, Harvard, Columbia, and Yale grads typically had a college degree before entering law school.  Swaine writes,

Cravath believed that disciplined minds are more likely to be found among college graduates than among men lacking in formal education ... .

Cravath believed in seriousness of purpose--a man with a competent mind, adapting to practicing law according to Cravath standards, should have made a good scholastic record at college.  But he recognized, without full approval, the tradition of the early decades of this century--that "gentleman" went to college primarily to have a good time and make friends.  Hence, while a good college record was always a factor in favor of an applicant, lack of such a record was not necessarily an excluding factor. ... [I]n the stern realities of the depression of the '30s, however, college records of applicants came to have added importance.

Yet, "[f]or a poor law school record Cravath had no tolerance."  Candidates who "had not attained at least the equivalent of a Harvard Law School 'B' either had a mind not adapted to the law or lacked purpose and ambition ... ."  Thus, the "first choice" was a "Phi Beta Kappa man from a good college who had become a law review editor at Harvard, Columbia or Yale."

Note, however, that Cravath's emphasis on credentials had a clear business purpose designed to compensate for the limitations of legal education.  During the first half of the 20th century, going to an Ivy League law school did not guaranteed legal aptitude. Prior to advent of the LSAT in 1948, college grades were the only predictors of success in law school.  In 1955, The "LSAT Handbook" included cross-tab tables of LSAT scores versus law school performance for several individual law schools.  At Harvard Law, roughly 1/3 of the class scored below the 50th percentile.  On the west coast, UC Berkeley had a similar wide range of LSAT scores.  See The Law School Admission Test and Suggestions for Its Use (ETS 1955).  The clear relationship between LSAT and grades subsequently  encouraged law schools to revamp their admissions criterion.   But that process took decades.  See Lunneburg & Radford, The LSAT: A Survey of Actual Practice, 18 J. Legal Educ. 313 (1965).

In a talk at Harvard Law School, Cravath stated that a successful "lawyer of affairs" (aka corporate lawyer)  assumed "the fundamental qualities of good health, ordinary honesty, a sound education and normal intelligence."  On top of these attributes, a candidate must have "character, industry and intellectual thoroughness, qualities that do not make for charm but go far to make up that indefinable something that we call efficiency.  Brilliant intellectual powers are not essential."

More after the jump ...

Continue reading

July 29, 2008 in Associates, Clients, Partners, The Practice | Permalink | Comments (1) | TrackBack (0)

Whither Comity?

On August 1, the new rules for disciplinary enforcement will go into effect in the District of Columbia. One of the new provisions will largely (and mercifully) take the Board on Professional Responsibility out of the reciprocal discipline business. Identical discipline will be imposed promptly if neither the disciplined attorney or Bar Counsel seeks different discipline in response to the court's show cause order. One hopes that this rule change will be the death knoll of ill-considered and indefensible decisions  like one issued last week.

The case involved neglect of an asylum matter. The attorney had mishandled the case, moved for reconsideration and advised the client of the missteps. Massachusetts investigated the case fully, resulting in a reprimand that was reported to D.C., where the attorney was admitted but on inactive status since 1999  (read: has absolutely no practice in D.C.). 

Now, in order for the board to recommend substantially different discipline, it must determine that reprimand is outside the range of sanctions for "comparable misconduct." Here, the board purports to look only at cases involving neglect of immigration matters, which is error. Comparable cases are those that involve neglect findings, and is not limited to evaluation of cases in the same practice area. The board here ignores a wealth of cases involving neglect that imposed sanctions as light as an informal admonition and recommends a 30 day suspension. The board notes that the neglect was "not pervasive and did not evidence abandonment" and thus, in its view, was not a particularly aggravated form of neglect. The suggestion that neglect of a single matter on the part of an attorney who fully cooperates with the disciplinary process would inevitably draw a suspension in an original D.C. matter is nothing short of ludicrous. This recommendation is both legally indefensible and pointless as the lawyer has no D.C. practice.

When I was at Bar Counsel, I spent a lot of time fighting board reports that  proposed such mischief (often reducing serious suspensions imposed elsewhere). The most distressing aspect of this case is that Bar Counsel asked for it--indeed, they sought a 60-day suspension. I only hope that the rule change puts a stop to this form of second-guessing of jurisdictions that actually conduct the disciplinary proceeding at issue and have primary responsibility for the regulation of a particular lawyer's practice. (Mike Frisch)

July 29, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, July 28, 2008

Grose on Incorporating the Client's Story Into Contextualized Ethics Analysis

Posted by Alan Childress

Carolyn Grose (William Mitchell) has posted to SSRN's journal on Law & Soc'y:  The Legal Prof'n her new article, 'Once Upon a Time, in a Land Far, Far Away': Lawyers and Clients Telling Stories About Ethics (and Everything Else). Here is her abstract:

Framed by an analysis of two particular ethical rules and their application to specific situations, this piece uses the metaphor of storytelling to explore the lawyer's role as an effective and ethical client representative. Drawing from the experiences of two sets of clients and their lawyers, the piece proposes an approach to ethical regulation (as one component of the lawyer-client relationship) that requires the lawyer to engage in a deeply contextual analysis of the specific and particular ethical conflicts presented to him in any533353_70978443_2 particular case; and work with his client to determine how to resolve those conflicts.

The first part of the article introduces the stories of these clients as the lawyers came to know them and as the ethical dilemmas unfolded. This section sets the stage for further analysis both of the Rules of Professional Conduct and of the process lawyers undertake to understand and apply those rules. The second part of the paper shifts the focus to the Model Rules of Professional Conduct themselves and tells the stories again, this time in the context of those rules. This second telling reveals that the rules that make up the system of ethical regulation are interpreted to apply to generic, abstract clients in generic, abstract situations.

Drawing on critical lawyering and narrative theory, the third part of the paper proposes an alternative approach to interpreting and resolving ethical conflicts. The article suggests that the system of regulation should be interpreted to allow room for the attorney to consider and incorporate the client's narrative context. Such an approach places the client in the center of the inquiry and requires the lawyer and client to engage actively in dialogue and problem-solving. It allows the lawyer and client together to arrive at solutions that both respond to the particular client's needs, and attend to the moral and ethical concerns the lawyer and society might have. By using a critically reflective, intentional process of inquiry around ethical (and other) concerns, the lawyer must focus on this particular client in the context of his life and his legal/non-legal needs in this particular situation. Such an inquiry results in a widening of the frame of the client's case such that what appear to be intractable and prominent ethical (and other) issues at the outset actually fade into the background as the lawyer and client together either resolve or preempt them completely.

July 28, 2008 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)

New Search Engine "Cuil" Promises Lots More Pages and Logic Than Google, But Fails My Tests

Posted by Alan Childress (if he really exists)

Announced today: New Google-buster from former Google engineers, called Pronounce it as "cool."  It touts three times the pages as Google, and a far better search logic:

Rather than rely on superficial popularity metrics, Cuil searches for and ranks pages based on their content and relevance. When we find a page with your keywords, we stay on that page and analyze the rest of its content, its concepts, their inter-relationships and the page’s coherency.

Then we offer you helpful choices and suggestions until you find the page you want and that you know is out there. We believe that analyzing the Web rather than our users is a more useful approach, so we don’t collect data about you and your habits, lest we are tempted to peek. With Cuil, your search history is always private.

Cuil is an old Irish word for knowledge. For knowledge, ask Cuil.

It does sound cool, and better -- except. Except that my first-day tests fail the only feature I care about:  the personal ego search.  Its logic does not recognize that I exist at all on the internet (oh please let my creditors use only this tool...).  Ever.  On any of its 122 billion pages.  We didn’t find any results for “alan childress”... Possible explanation?  too many search terms. Please try fewer terms.  Less than two?!

It did recognize "legal profession blog" -- despite my using three search terms. But it then showed a picture of some shirtless little blonde boy posing (voguing) next to a blurb on our site.  (I swear I was nowhere near Oakland at the time.)  I worry that one of the ex-google engineers is R. Kelly.  Then there is a blurb about Jeff Lipshaw at bottom right of this page but the picture next to it is some guy with a mustache, not Jeff.  Maybe that guy is the dad of the little shirtless boy, or he's the Dateline producer who will meet you if you try to email the boy.

It found Legal Ethics Forum (see, I did not just search me), but its first reference to it was not to the site itself but an ABA blurb about the site.  So I ran Andrew Perlman and he did not exist either.  Even if you put quotes around him.  I eventually found that "Alan Childress" does exist with quotes but Steven Childress, my legal name, sometimes does not, either with or without quotes.  "Andy Perlman" does exist, with quotes, but the first page shows far more references to him from this blog than it does from Legal Ethics Forum, his blog.  My brother Mark, author of like seven novels published by real publishers and also a movie I have seen, at first did not exist, unless you frame him in quotes.  Then I re-ran some of these searches and they seem to get some results, but odd ones at times.  Andy started to appear alive but it does not seem to be the one who blogs daily on LEF.

For a search engine, I demand more than anything a consistent set of rules, and predictable results.  If I have to use quote marks, then tell me and make that the [lousy] working rule.  Or if I have to use a nickname and not a legal name--well, that is an odd logic but one pleasing to Gordon Sumner I am sure, though he also comes up as Sting.  (The first reference to Gordon is a story mainly about bipolar disorder!--maybe Gordon should strive to do something notable with his life that would interest surfers.) At least make that usage consistent!  So far, at least, it is not.  I cannot figure out how to call up relevant material on this.  And a search that is run one minute gets a very different set a few minutes later.  That makes it hard to go back to a search result that sparked an interest but the offered link was not immediately accessed.

Not cuil to me, yet.

July 28, 2008 in Blogging | Permalink | Comments (0) | TrackBack (0)

Idaho Bar Using Musical Parodies and a Humorist to Teach Legal Ethics CLE in Sun Valley October 9

Posted by Alan Childress

Using the "Ethics Rock!" program developed by Jack Marshall and his ProEthics seminars, the Idaho bar offers two ethics credits as part of its larger conference in Sun Valley October 8-10, 2008.  The conference's program brochure is here.  Another ethics/professionalism credit is earned watching “Sue Onto Others As You Would Have Them Sue Onto You,” featuring lawyer-humorist and 1992 Harvard Law graduate Sean Carter, who says: “Under Rule 8.4, it is professional misconduct to commit a criminal actFullshot  that reflects adversely on your honest, trustworthiness or fitness to practice law. Needless to say, stabbing opposing counsel in the parking lot creates such an adverse reflection.” 

Carter, shown right, also offers to state bars and law firms other humorous programs that seriously deal with ethics, advertising and marketing, substance abuse, writing and presentation, and diversity awareness including elimination of bias.  And Marshall has two new musical programs, on more rock and also the blues.

In the Idaho program, also, Neil Siegel -- a Duke law prof and fellow alum of Berkeley's Jurisprudence and Social Policy doctoral program -- will give a U.S. Supreme Court update for 2.5 credits.

July 28, 2008 in CLE | Permalink | Comments (0) | TrackBack (0)