January 26, 2008
An Illinois hearing board issued a report in a disciplinary case against a lawyer who filed a personal injury case on behalf of a client that was dismissed for failure to prosecute. The attorney made matters worse by telling the client eight to twelve times over a four-year period that the case was moving forward. The client learned the true status of the case after filing the bar complaint. The client then consulted a lawyer to pursue a claim for legal malpractice. The attorney settled the claim for $10,000 after a series of telephone calls with the new lawyer. The lawyer for the client in the malpractice case charged a $250 fee for resolving the matter. Lawyer Two thus "slightly restored" the client's faith in the legal profession.
Here, the accused lawyer failed to participate in the bar proceeding. The hearing board recommends a one-year suspension without automatic reinstatement.(Mike Frisch)
January 25, 2008
A Minnesota attorney was suspended because disciplinary counsel was unable to locate the attorney within the state and could not serve charges of ethical misconduct. The attorney may move to vacate the order of suspension and seek leave to answer the charges within a one-year period. If the attorney does not respond to the allegations within the year, the charges will be deemed admitted. (Mike Frisch)
Out Of Time, Out Of Court
An Indiana attorney was consulted by a husband who wished to have an estate plan. The attorney met with the husband, his spouse and his two children from a previous marriage. He wanted his two children to inherit everything and for the spouse's two children from a previous marriage to get zip. The lawyer proposed a trust with the husband as trustee, having power to amend or revoke the trust in his lifetime. The trust would become irrevocable on his death with his children as successor trustees directed "to maintain [the spouse] in her customary standard of living." The lawyer drafted the trust agreement and the document was executed by the husband and the spouse. The trust was later amended for the wife's protection without consulting the lawyer. After the husband died, the lawyer who drafted the trust documents represented one of the children in litigation against the spouse. The spouse sued the lawyer for malpractice.
The Indiana Court of Appeals held held that the lawsuit against the attorney was barred by the two-year statute of limitations in attorney malpractice cases. Unlike a will, a trust becomes operative at the time of execution. The trust was funded in 2001 and the suit was filed in 2005. The "continuous representation doctrine" did not toll the statute because the spouse "has not designated evidence that she subjectively intended or reasonably expected the [attorney-client] relationship to continue" after the trust documents had been signed. (Mike Frisch)
Note to Jeff: I Assume a Lawyer With Your Years of Experience Knew to Negotiate A Similar Deal to Be Lured to Teach in the Pricey Boston Legal and Housing Market
Posted by Alan Childress
The ABA Journal's online story has a headline that says: NYU Law Pays $4.2M for New Prof’s Condo. Back in the day, I had trouble getting some prospective law schools to validate my parking. Hmm.
January 24, 2008
The More Things Change, the More They Are Not the Same
Posted by Alan Childress
Last week I posted on an old Time article on the AALS annual meeting, discussing legal ethics in 1964. The discourse sounded awfully familiar to our "modern" ears. But some things really do change. Here is a site posting the top ten creepiest old advertisements, two of which I depict here (HT to Electronic Ephemera). The really, really creepiest one, not posted here, is a newspaper ad from 1979 by Pakistan Airlines. You will not believe it.
Good Works Save License
A New York attorney who had been convicted of a federal misdemeanor involving the prohibition against kickbacks and unearned fees was the subject of a bar discipline case. The Appellate Division for the Second Judicial Department imposed a public censure notwithstanding the serious nature of the underlying criminal offense. The court considered and accepted the following in mitigation:
"The respondent asks that his good works over a 40-year career be balanced against his aberrant misjudgment which gave rise to his misdemeanor conviction. The respondent maintains that his fitness as a lawyer is amply demonstrated by his service to his clients, his profession, and his community. Organizations that he has served include the Area Fund of Dutchess County, a multi-million dollar fund which provides money to charities on an annual basis. Educational institutions which have benefitted from the respondent's volunteer work include Dutchess Community College, Marist College, and the Culinary Institute of America. The respondent's charitable works include service to the Bethel Missionary Baptist Church in Wappingers Falls and the Family Counseling Service. In addition, he has served the legal profession through pro bono lectures to senior citizen groups as well as lecturing in continuing legal education programs."
The attorney was found to be the least culpable of five defendants in the criminal case. (Mike Frisch)
No Suspension In Disability Matter
An attorney in Wisconsin stipulated that he suffers from a variety of medical problems relating to drug dependency as well as generalized anxiety and major depressive disorders. Rather than suspend the attorney due to medical incapacity, the Wisconsin Supreme Court found that "at times" he suffers from these conditions and ordered a two year period of monitoring with the following requirements:
"(a) Provide full medical release forms to OLR as requested;
(b) Maintain absolute sobriety, with monitoring to include random breathalyzer and/or urine checks;
(c) Submit quarterly psychiatric reports to OLR;
(d) Submit quarterly self-reports to OLR detailing his: (1) drug screens; (2) medical/mental health appointments; (3) treatment participation; (4) compliance with any medication regimen prescribed by his healthcare providers; (5) arrests; and (6) convictions."
This order is somewhat unusual in that, in many jurisdictions, a finding of incapacity leads to immediate suspension rather than monitored probation. (Mike Frisch)
Fee Claim Rejected
In Liss v. Studeny, SJC-09916, decided yesterday, the Massachusetts Supreme Judicial Court upheld the grant of client Studeny's motion for summary judgment on lawyer Liss' claim under a contingent fee agreement where the contingency had never occurred. The court also rejected the fee claim on quantum meruit grounds.
" there is no evidence that Studeny used Liss's services without intending that the contingency occur. That is, Studeny did not defeat Liss's reasonable expectation that he was using Liss's services to bring about the contingency on which Liss might be compensated. See Salamon v. Terra, supra at 859 (quantum meruit may be appropriate where reasonable expectations are defeated). In fact, the undisputed evidence demonstrates that, even after Liss had withdrawn from the case, Studeny defeated his employer's motion for summary judgment and continued to litigate his case to the end of trial in an effort to achieve the contingency. His attorney may have wished for Studeny to invest more money and effort in the litigation of the case, but the fact that Studeny expected to pursue his claim at the least possible cost does not establish that he intended the contingency not to occur. Given these facts, Liss's right to recover in quantum meruit would not have accrued until the occurrence of the contingency. Because the contingency did not occur, his right to recover never accrued. Liss may not recover in quantum meruit."
The link to the court's web page is here. One interesting aspect of the civil case is that Bar Counsel submitted an amicus brief. (Mike Frisch)
Let The Buyers Beware
An Illinois hearing board found no ethical misconduct in a case where an attorney was alleged to have "acted dishonestly when he changed the interest rate on a promissory note without informing opposing counsel." The attorney represented the sellers of a residential property. The key findings in rejecting the charges of sharp practices:
"Prior to sending [opposing counsel] the promissory note on December 30, 2007, Respondent made 19 separate changes to it, 17 of which were essentially minor changes to a word or two. Two of the changes were more substantial, one of which changed the interest rate from annual to monthly. Respondent did not highlight any of the changes, and did not discuss the change in the interest rate with [opposing counsel] before or during the closing. The closing occurred on January 15, 2003. The promissory note had a blank space where the interest rate would be filled in. At the closing, [Opposing counsel] wrote the number "7" on the note.
Respondent did not discuss the interest rate with [opposing counsel] prior to the closing because he believed that the Edwardses agreed to that term, and [opposing counsel] knew of the agreement. After Respondent changed the note to reflect the monthly rate, he did not think there was any reason to bring it to [opposing counsel's] attention. Respondent assumed that what his clients told him about the interest rate was true and that [opposing counsel] would read the note. Respondent did not intend to deceive [opposing counsel]. (citations to record omitted)."
There was a lawsuit as a result of the dispute over the agreed interest rate. The buyers prevailed but counsel (the same attorney who had handled the settlement) ate more than $87,000 in legal fees resulting from that litigation. (Mike Frisch)
An Illinois hearing board has recommended a suspension of two years and until further court order in a case involving an Assistant State's Attorney who had "purchased, possessed, and used cocaine and cannabis on multiple occasions" and had used illegal drugs with another Assistant State's Attorney. He had prosecuted drug cases while engaging in the same conduct as the people he prosecuted. He was never arrested or caught with drugs.
The hearing board concluded that:
"Although the roles of a judge and a prosecutor are different, both must be, and must appear to be, fair and impartial in the execution of their duties. When an Assistant State’s Attorney, as in this case, is engaged in an ongoing pattern of criminal activity, by purchasing and possessing cocaine and cannabis, while he is at the same time prosecuting criminal cases on behalf of the people and the State’s Attorney, the administration of justice is prejudiced. The Respondent demonstrated disrespect and disobedience to the law by engaging in criminal conduct himself, failed to take action against those who he knew were unlawfully delivering cocaine and cannabis, failed to take action against another Assistant State’s Attorney who he knew was unlawfully possessing cocaine and cannabis, and then continued to prosecute others for crimes similar to those he himself was committing. Clearly, there was 'the appearance of impropriety' and citizens would be concerned about an Assistant State’s Attorney continuing to serve as a prosecutor while engaging in criminal conduct himself. In other words, the administration of justice is prejudiced when an attorney is both a prosecutor and a criminal. "
The hearing board considered lack of candor and a failure to understand the seriousness of the misconduct as aggravating factors. (Mike Frisch)
January 23, 2008
The South Carolina Supreme Court imposed a nine-month suspension on an attorney who took advantage of a vulnerable client. The client retained the lawyer in a custody dispute. The client suffered from depression and an eating disorder. Further, the client "desired a prompt resolution of her case because she was concerned her husband would use her health against her on the issue of custody." The lawyer continued to handle the matter after he and the client had commenced a sexual relationship. The court found that the relationship violated Rule 1.14 (client under disability). There were a number of instances of questionable judgment found by the court, including a heated encounter with the husband and a situation between the lawyer,the client and a friend of the client from which the friend emerged with a broken nose. Clearly, the lawyer's personal involvement with the client impaired his professional judgment. After a confrontation with the husband while the client was at the lawyer's home, the lawyer withdrew from the case and self-reported to the Office of Discipinary Counsel.
One rather disturbing passage from the opinion:
"Finally, respondent’s judgment is called into question for not only failing to inform the family court of Client’s problems with substance abuse, eating disorders, and other self-destructive behavior, but also for affirmatively supporting Client in her custody dispute in August 2004 when he knew of her problems. By filing an affidavit in support of Client, respondent let his personal feelings for Client get in the way of his responsibilities as an attorney and officer of the court. His decision to get involved in a legal matter to support Client’s bid for custody of two small children despite her numerous problems demonstrates that respondent’s professional judgment was seriously hampered by his personal feelings for Client. "
I hope the court did not intend to suggest that a lawyer is precluded from pursuing a client's objective to seek custody if the lawyer knows of the above-recited conditions. Isn't a lawyer ethically obligated to "affirmatively support" the client's position so long as that position is not frivolous as a matter of law? It does not appear from the opinion that the lawyer violated an ethical obligation of disclosure to a tribunal. Further, it appears that the client prevailed in the custody matter. (Mike Frisch)
Harvard Law Center on Profession Has Talk 2/4 On Being a Corporate Lawyer
Presentations On Being a Corporate Lawyer
A talk by John Coates
PLP faculty memeber John Coates will deliver a lecture on the occasion of his appointment as the
John F. Cogan Jr. Professor of Law and Economics.
January 22, 2008
Appearance of Impropriety
A hearing officer in a worker's compensation claim adjudicated the merits of a carpel tunnel syndrome case. Six years earlier, the hearing officer had been represented by the same law firm that represented the claimant in a claim that had been defended by the same law firm. The hearing officer had lost in the earlier case, which also involved a carpel tunnel claim. Notwithstanding the hearing officer's claim (accepted by the court) of a lack of bias and of not remembering the lawyers and firm firms from the case, the Delaware Supreme Court found that the situation created an appearance of impropriety and reversed the decision of the hearing officer. (Mike Frisch)
Sixth Sanction Is Disbarment
An attorney who has been suspended since 2002 as a result of his fifth disciplinary sanction was disbarred by the Maryland Court of Appeals. After his former wife had passed away in 2005, a will was located and admitted to probate. The estate's attorney discovered a trust fund worth almost $100,000 that had been held by the attorney and the ex-wife as tenants by the entireties. By law, the account was coverted to tenants in common by the couples 1985 divorce. After being contacted by the estate's attorney regarding the fund, the attorney had the account retitled in his sole name. His explanation that he did not understand the consequences of such a transfer was rejected: "Having been an attorney for more than 40 years, it is more than likely that [he] had a basic knowledge of property law when he transferred the Fund to himself." However, no intent to defraud was found; rather his intent was to retain control rather than to cheat the estate. The funds were not depleted or otherwise misused. However, the court majority found that he had made misrepresentations to disciplinary authorities. Both majority and dissent opinions found disbarment appropriate given the prior disciplinary history. (Mike Frisch)
Client Under Disability Rule Revisions Proposed In Massachusetts
In the wake of a decision in the case of Care and Protection of Georgette, 439 Mass. 28 (2003), Massachusetts has proposed revisions of its Rule 1.14 (client under disability). The key changes are summarized below:
"Paragraph (b) is based on the model rule provisions but with two changes. The addition of the phrase "that prevents the client from making an adequately considered decision regarding a specific issue that is part of the representation" is intended to define the initial threshold for when the actions authorized in paragraph (b) will apply. Although the committee believed that the phrase was implied by the language of paragraph (a), it chose to insert the phrase for clarity. The further addition of the phrase "in connection with a representation" in paragraph (b) is intended to make explicit that the lawyer would take protective action in connection with the representation. In the Committee's earlier proposal, paragraph (b) ended with a phrase taken from the current rule, but upon consideration the Committee decided that the point was adequately covered in the revised comments."
Proposed new comment seven sets out a "four option" approach to the representation of a disabled client. There is an interesting dissent of Bar Counsel Connie Vecchione that takes issue with the majority formulation. (Mike Frisch)
Florida Bar Sued
Public Citizen has filed suit against the Florida Bar's advertising rules alleging that the provisions violate the First Amendment. The announcement from Public Citizen's web page links to documents relating to the litigation. (Mike Frisch)
January 21, 2008
Legal Ethics Conference in Australia in mid-July 2008
Posted by Alan Childress
Here is news about a conference on legal ethics, including international issues, in Queensland, Australia this summer (well, winter).
The Third International Legal Ethics Conference will be held on Australia's beautiful Gold Coast on 13-16 July 2008. ... The conference will be designed to cater for both scholars and legal practitioners, with a designated "practitioners’ day" which will include papers, presentations and discussions of particular relevance to practising lawyers.
The conference themes embrace international perspectives, and will provide delegates from Australia and abroad with opportunities to hear and share ideas and arguments that have implications for "lawyering" across jurisdictions.
It is hosted by the TC Beirne School of Law (University of Queensland) and Griffith Law School (Griffith University). Sounds like a great idea for U.S. scholars and lawyers, too. And for the colorful conference brochure: Download legal-ethics-conference-brochure.pdf
January 20, 2008
The "Interdisciplinarity in Non-Elite Law Schools" Debate
Posted by Jeff Lipshaw (cross-posted at Concurring Opinions)
I mentioned to Dan Solove at Concurring Opinions (in praise of his post) that I am giving a talk to the Suffolk Business Law Association with the title "How to Be a Great Business Lawyer Even if You Majored in Philosophy," and he invited me back for an encore post. The connection here is that "law" and "philosophy" are in the same sentence, so it must have something to do with interdisciplinarity in the legal academy, which has, by virtue of Brian Tamanaha's post, become a matter of widespread discussion in the blogosphere. I'm not going to try to link up to all or even most of them - Dan did it recently, and, as I mentioned to Larry Solum in an e-mail yesterday on one's ability to predict, his "post" on the subject ten, and maybe even two, years ago would have been an unread essay in the Journal of Legal Education; today it is read by thousands of people within hours of his writing it.
I feel like I ought to say something on this issue not because I was in practice for so long, but because of what I was doing in practice for so long, which was managing, as much as doing, legal work, and hiring lawyers. Hiring lawyers, both those who will work in-house, and firms to do work at varying levels of sophistication, is an endeavor at the polar extreme from most of what lawyers learn and do. You can use all sorts of rules of thumb (for the practitioner audience) or heuristics (for the professorial audience), but making a commitment to a person by which one entrusts the myriad judgment of a deal or a case or a business has more judgment and less analysis than almost anything one studies in theory or doctrine in law school (and it's part of my thesis for the talk).
Having said that, I agree with another blogo-pundit that Brian has intertwined two issues - the fate of non-elite law schools and their graduates, on one hand, and the rising (and, from a practice standpoint, arguably irrelevant) inter- or multi-disciplinarity of the law school professoriat. Here, for what it's worth, are four observations:
1. There's something to be said for the Luhmann-Teubner theory of social systems in law - that is that law is a closed system that has points of interconnection with the rest of society, but is "autopoietic" in that it self-generates its own principles, standards, processes, results, etc. I would posit that legal academia is autopoietic even within law. To put it more bluntly, practicing lawyers don't care what the law professors are thinking or writing about, as long as the professors are churning out law grads with the basic doctrinal training (that training that Larry Solum aptly says fits like a glove). Or to put it another way, Larry Solum and I are almost the same age, so his essay describing what it was like to be a legal academic from the late 70s until now is fascinating; I was a hard-nosed practitioner over the same period, had no concept or even awareness whatsoever of anything Larry described, and, trust me, was absolutely no worse for the wear as a lawyer!
2. With everything that can or should be done to improve legal pedagogy, in fact, you do learn a lot in law school about the law. It's a sad statement that the worst irrelevancy offender is the course I have taught - contracts - because rarely do you ever litigate or worry about the issues taught - offer and acceptance, consideration, etc. But even having said that, there's something about the history, tradition, thinking process, whatever, of the closed system that one does learn. And I can testify that some or all of the following courses I took in law school were not a waste of time when I got into practice (and I'm sure there were others I can't recall offhand): torts, civil procedure, constitutional law, property, trusts and estates, securities regulation, tax, evidence, real estate transactions, business associations.
3. I'd be careful about painting the non-elite school with too broad a proletarian brush. I don't know if my school, Suffolk, turns out policy-oriented lawyers on a national scale, but I do think we have a significant relationship with state and local government in Massachusetts, and a role to play in that arena. On the subject of the cost-benefit, and without minimizing the plight of today's young lawyers saddled with debt, it's hard to believe the market won't sort this one out. If there's no real or perceived return on the degree, are students really that gullible that they would incur $100,000 of debt just because law schools would like the revenue? I'm familiar enough with the behavioral economics of this (over-optimism, etc.), and this is awfully rational choice of me, but if you amortize $100,000 of debt over a forty-year career, the debt service is $5,000 a year. So you only have to improve your earning capacity by that much a year to make it a rational decision. Right?
4. The history Larry Solum traces of the trade school/professional school/social science model is fascinating and rich and deserves more attention than I will give it here. Personally, I think Larry is onto something with the Ph.D. in law, because the fact of the J.D. as terminal degree for academics and practitioners has two effects: (1) it fosters the practice-academy divide because academics feel an even greater need to close their system to highlight their differences from mere practitioners, and (2) it is something less than "real" scholars in sister disciplines would expect. Larry mentions political science as an area to which one might compare this dilemma; I think there are even more: business administration, public administration, medicine, dentistry, journalism, to name a few. At least looking at those areas would tell us how much of legal academic angst is unique to legal academia.