August 11, 2008
The Arizona Disciplinary Commission has recommended that an attorney be suspended for 30 days followed by one year of probation. Among the conditions imposed is a requirement that the attorney review a CLE videotape of The Ten Deadly Sins of Conflict and provide his handwritten notes to Bar Counsel for review. The report of the hearing officer, setting forth the details of the alleged misconduct is linked here.
I would like to see a sanction that required the attorney to see The Fortune Cookie and to identify the various ethics violations committed by Whiplash Willie Gingrich. (Mike Frisch)
Atomic Bomb Fizzles
In litigation against an attorney sued for attempted deceit of the New York Supreme Court and successful deceit of the Appellate Division, First Department, the United States Court of Appeals for the Second Circuit certified two questions of law to the New York Court of Appeals:
1. Can a successful lawsuit for treble damages brought under N.Y. Jud. Law section 487 be based on a attempted but unsuccessful deceit upon a court by the defendant?
2. In the course of such a lawsuit, may the costs of defending litigation instituted by a complaint containing a material misrepresentation of fact be treated as the proximate result of the misrepresentation if the court upon which the deceit was attempted at no time acted on the belief that the misrepresentation was true?
The case involved one brother who "undertook a series of personal business transactions that ultimately resulted in the loss of four of five buildings owned by the family, and eleven of their twelve restaurants." The brother used the money for a Central Park "palatial" apartment and to cover his options trading losses. He was sued by two other brothers. The lawyer began representing the accused brother "after these misadventures first came to light."
The District Court had found that the lawyer had engaged in a "persistent pattern of unethical behavior" that included failure to correct statements in his client's deposition, refusal to produce tax returns, and claiming he had "atomic bomb" tape recordings that turned out to be unintelligible. The District Court awarded treble damages of slightly more than $268,000. (Mike Frisch)
More Both Sides Now
The New York Appellate Division for the Fourth Judicial Department sanctioned an attorney who had represented both the buyer and seller in a real estate transaction. While both parties had consented to the joint representation, the attorney had failed to make required disclosures as to the nature of the conflict of interest. The sale had taken place in 1993 and a dispute between the parties regarding the content of the land survey arose in 1995. The lawyer then filed an altered land contract on behalf of the buyers.
The court considered the attorney's record of public service, lack of prior discipline , remorse and the remoteness of the misconduct as mitigating factors. The court imposed censure.
This link takes you to the court's web page. The case is Matter of Mc Kelvey, decided July 11, 2008. (Mike Frisch)
Contingent Fee Provision Questioned
A decision of the full Massachusetts Supreme Judicial Court imposed an admonition on an attorney, declining Bar Counsel's request to impose more severe discipline:
Bar counsel appeals from the decision of the single justice dismissing the petition for discipline of an attorney. Principally at issue is the propriety of certain provisions in the attorney's form contingent fee agreement that go beyond the terms of the model contingent fee agreement set out in the Massachusetts Rules of Professional Conduct. Bar counsel also challenges the attorney's conduct in misrepresenting the existence of a statutory lien pursuant to G. L. c. 221, § 50, in failing to notify one client promptly of his receipt of personal injury protection (PIP) funds, and in refusing to provide another client's successor counsel with a statement of his reasonable time and expenses after his discharge by the client.
We conclude that the attorney committed professional misconduct in knowingly misrepresenting on several occasions to insurers the existence of a statutory lien under G. L. c. 221, § 50, in his favor, and in failing to notify and inform his client promptly about his receipt of PIP funds for the client. We further conclude that an admonition is the appropriate discipline for this misconduct.
In the circumstances of this case, we disagree with bar counsel's claims that discipline should be imposed because of the challenged terms of the attorney's contingent fee agreement. However, looking to the future, we doubt whether it is appropriate for a contingent fee agreement to contain a provision -– as the attorney's agreement did in this case –- giving a lawyer, on discharge by the client before termination of the matter for which representation was sought, a right to recover an amount greater than the fair value of the lawyer's services and expenses up to the date of discharge. In addition, to the extent that a lawyer includes terms in a contingent fee agreement that materially depart from those in the model contingent fee agreement included in Mass. R. Prof. C. 1.5 (f), as amended, 432 Mass. 1302 (2000), we conclude that the lawyer should explain those terms specifically to the client, and should obtain the client's written consent to them. We refer these issues to the standing advisory committee on the rules of professional conduct.
August 10, 2008
Model Law Firm Rejection Letter, and a Classic Practical Joke
Dear Ms./Mr. My Firm is Too Good For You:
Thank you very much for your recent letter explaining that, despite the fact I am a wonderful person and will likely win the Nobel Prize for Law someday, you were not able to offer me a callback interview and/or a position as a Summer Associate. I regret to inform you that I am unable to accept your refusal to offer me a position as a Summer Associate/callback interview.
This year I have received an unusually large number of rejection letters, making it impossible for me to accept them all. Despite your outstanding experience in rejecting applicants, your refusal does not meet my needs at this time.
Therefore, I shall initiate employment with your firm in May of 2006. Best of luck in rejecting future candidates.
Harvard Law Student
Students at other schools have posted their favorite rejection letters they actually received for law jobs. See Barely Legal's here, a commenter elsewhere here, and a whole site devoted to this topic at rejectionletters[dot]net. One firm "won" a contest for its letter, here. A mass email rejection of all named candidates (duly listed in the TO: field) is the subject of an Above The Law post last August. >>> After the jump, read about a nice practical joke at UNC involving rejection letters.
This lawhaha legal humor site does, despite that name, have a great story about a practical joke two roomies played on a third at UNC:
They started intercepting his mail at home; specifically, his law firm rejection letters. They would steam open the letters and add "personal" handwritten notes from the interviewer at the end.
"You may want to consider getting a better haircut."
"You had a weak handshake."
"You need to sit up straight and not cross your legs."
"Don't look me straight in the eyes. That makes me nervous"
"Need to look interviewers straight in the eye."
"You should use better deodorant."
"Were you hitting on me?"
Etc., etc. The best part was that the other two guys also put personal notes on their rejection letters so that the roommate thought it was a normal, common practice.