Friday, October 24, 2008
Posted by Alan Childress
I made a pitch earlier this week for taking advantage of early voting opportunities in the many states that allow it, if only to avoid the diabolic Diebold fate of Homer Simpson seen here. The site Rock The Vote provides a clearinghouse of information and links (including further links to dates, sites, and ID requirements) for those states. Here is their Louisiana page, for example. Here is a link to student voting information and guidelines from NYU Law's Brennan Center for Justice. Very informative.
Like Diamonds and Discarded Plastics: Second Circuit Refuses to De-Publish Sanctions Order After Parties Propose Settlement
Posted by Alan Childress
An interesting story is on Law360.com here (for full article, free trial reg. req'd -- or Download sanctions.doc). It is entitled A Blot on Careers: Sanctions Can Haunt Lawyers. In it, author Sara Stefanini reports on a decision this week by the Second Circuit, rejecting a motion by attorneys seeking to erase a sanctions order of over $64,000 in exchange for a settlement with the complaining party. Settlement was made on the condition that the Second Circuit vacate the sanctions and direct Westlaw, Lexis, and others to de-publish all record of the sanctions.
The court refused. Stefanini writes, "While it is not unusual for attorneys to ask that their names be removed from sanctions orders or appeal the actual decisions, attorneys found it interesting that the lawyers in this case had attempted to use the settlement to overturn the sanctions, as opposed to appealing the actual decision to punish them." Much of the article is about the extent to which public sanctions affect careers in the long run. One view quoted was our own Mike Frisch's:
The attempt to eliminate the sanctions from the Internet is understandable, but the appeals' court's response comes as no surprise, legal experts said.
“Obviously in the modern world where there's just a ton of easy access to sanctions decisions and they get on the Web quickly, so it can affect the reputation,” said Michael Frisch, an adjunct professor of law and ethics counsel to the Georgetown University Law Center. “But I think the Second Circuit was right in saying that they can't be telling LexisNexis and other publications to undo what has been done.”
An attorney convicted of intentional disobedience of a court order of protection "by leaving a series of letters, cash and gifts at a woman's residence" was placed on probation and later charged with violation of the probation conditions. He failed to appear and his whereabouts are unknown. The New York Appellate Division for the Third Judicial Department disbarred the lawyer in light of the conviction and his "disinterest in his fate as an attorney" as evidenced by his non-participation in the bar proceedings. (Mike Frisch)
Thursday, October 23, 2008
Just out by Aspen Publishers is the problems casebook by Nathan Crystal of the University of South Carolina, entitled Professional Responsibility: Problems of Practice and the Profession, Fourth Edition, 2008. Its link here. Here is part of the blurb: "this concise problem-based casebook continues to offer students the opportunity to hone their judgment skills and to develop a philosophy of lawyering that can become a credo for dealing with the hard ethical issues that are part of their chosen profession."
The Georgia Supreme Court disbarred a lawyer convicted of three federal felony offenses involving money laundering and conducting transactions over $10,000 in criminally derived property. The convictions arose from his dealings with a former bankruptcy client who was unable to obtain a bank account. The lawyer used his escrow account to assist the client, charging a percentage of the funds deposited as his fee. He had received letters and subpoenas that "put [him] on notice that his client's funds were criminally derived." The deposits were in a total amount over $8 million. Findings that the lawyer "generally does a competent job handling matters for his clients" and had cooperated in the criminal investigation did not outweigh the aggravating factors. (Mike Frisch)
The Virginia Bar Council has voted in favor of an increase in the administrative charge imposed as part of the costs of a disciplinary prosecution or reinstatement proceeding. The state bar web page reports:
The assessment changes are:
- subcommittee cases: from $200 to $500;
- district committee cases: from $500 to $750;
- Disciplinary Board and three-judge court cases: from $750 to $1,000;
- reinstatement cases from $750 to $1,500.
The administrative charge for reinstatement cases is higher than other Disciplinary Board matters because those cases are more labor-intensive and expensive to administer. These fees apply only to members who have been sanctioned and petitioners seeking to be reinstated. The new fees are effective immediately.
The Louisiana Supreme Court ordered the admission to practice of an applicant with a misdemeanor criminal conviction. The Board of Bar Examiners had opposed, but the court had granted, permission for the applicant to sit for the bar examination. After the applicant had passed, the court directed that Disciplinary Counsel conduct an investigation of his character and fitness to practice. A hearing was then held before a commissioner, who recommended admission. (Mike Frisch)
The Florida Supreme Court declined to recognize the tort of "false light invasion of privacy" in a lawsuit brought against Jews for Jesus by a plaintiff who had sued based on the allegedly false assertion (made in a newsletter by her son, who was a believer) that she was a convert to their beliefs. The question at issue had been certified to the court, which analyzed the issue under the header "To Recognize or Not to Recognize - That is the Certified Question." (Mike Frisch)
The proposed removal of a town court justice was adopted today by the New York Court of Appeals. The misconduct involved presiding over or intervening in matters involving relatives and otherwise presiding over matters where his interests required recusal. The court found the violations intentional and was unmoved by the justice's suggestion that he believed he could be '"very, very fair'" in the matters.
In an unrelated matter, the court ruled against Bianca Jagger in a case involving ejection from rent-stabilized housing. The court held that a foreign national on a tourist visa cannot claim primary residence in New York for rent regulation purposes. (Mike Frisch)
When the D.C. Court of Appeals recently amended its rules of disciplinary procedure, one of the best reforms was the removal of a role for the Board on Professional Responsibility in uncontested reciprocal discipline matters. In the past, all such cases were sent to the board whether or not the attorney had responded to the court's order to show cause why reciprocal discipline should not be imposed. Now, the court can impose discipline in such cases without a referral to the Board.
So far as I am aware, this order entered today is the first matter resolved under the new rule. The attorney was disbarred as reciprocal discipline based on a Maryland consent to disbarment. Without wasting the time and resources of Bar Counsel and the board, identical discipline was imposed nine weeks after the Maryland order. It used to take a year or more with briefs from bar counsel and a board order.
It does my heart good to see discipline imposed in an efficient and sensible manner. (Mike Frisch)
As a D.C. bar prosecutor and now interested observer of bar discipline, I have never seen a situation where a remand from the D. C. Court of Appeals to the Board on Professional Responsibility served any purpose other than delay. The Board on remand uniformly reasserts its previously held view of the matter and submits a new report that at best can be described as unhelpful to the court.
The above assertion is exemplified by a decision issued by the court today. The case involved an attorney who had evaded process in the bar case. In its original report, the board made up hypothetical excuses for the conduct ("The noises that [the process server] heard inside the house might have been coming from a minor not authorized to accept service, someone who had no idea who was at the door and declined to open the door to an unannounced stranger, or for aught we know, an animal") and declined to recommended that the lawyer prove fitness to practice in order to be reinstated. The court remanded, seeking a fresh recommendation in light of its conclusion that the attorney had deliberately evaded service.
The Board on remand "purported to follow the court's instructions" (the court's words) but in fact simply continued to make up excuses for the lawyer devoid of any basis in the record, concluding that the evasions were the product of his "[h]opelessness and perhaps despair." In today's decision, the court states that Bar Counsel's arguments that the Board engaged in the speculation condemned in the remand "have a great deal of force...There is no doubt that the Board followed our instructions grudgingly. The excuses it posits for [the lawyer's] failure to respond are merely hypothetical and unsupported by any input from [the lawyer] himself." Nonetheless, the court adopted the revised recommendation of the board as to sanction.
The court's criticism of the board here is unusually blunt and pointed, as well as entirely justified. I long ago learned that you can lead a horse to water, but you can't make him drink. (Mike Frisch)
Wednesday, October 22, 2008
This is a follow-up to our April posts here and here on the statistical info behind passing the MPRE (minimum passing score, average score, standard deviation, etc.) and Jeff's own musings about coming out of ethical hiatus to take the exam as a certified AARP member (and his commendable result). Now consider this student blog's post and reader comments on the recent August 8, 2008 exam administration, studying for it, and sweating out the results. Those who blogged it out seemed to agree the questions were nearly incomprehensible, but they inexplicably passed anyway. The students did not address Jeff's most acute piece of advice: "#13. Don't drink a Venti Starbucks thirty minutes before you start the exam."
Consider also this older epinions post and comments, Advice on How to Pass the MPRE from Someone Who Just Did Last Month. Another student wrote, a year ago, that the exam prep needed more than she was led to believe: friends "simply reviewed the material the day before the exam. To quote my dear friend Mirenda aka Ma Henny, 'Whatevva Hunney'." As Mike has written, one point shy is not enough. The official NCBE exam website is here.
The Tennessee Court of the Judiciary reprimanded a judge who had refused to make findings of fact in a case that had delayed the right of a litigant to pursue an appeal. In another matter, the judge had recused himself from a case and then signed a series of orders in the matter.
In an unrelated matter, a judge was suspended on an interim basis as a result of his indictment on charges of official misconduct. A story from the Camden Chronicle concerning the charges is linked here. (Mike Frisch)
In an opinion issued today, the Indiana Supreme Court held that the reformation of trust provisions in two wills to comport with the testators' intent to avoid adverse income tax consequences had been proper. The suit had been filed by beneficiaries against the firm that had drafted the wills. The court here held that there had been a mistake in the trust language of the original wills, that the true intent was to avoid taxes and that the trusts had been reformed consistent with Indiana law.
The trial court had concluded that the IRS must accept the reformation and that the beneficiaries suffered no damages. The court here held that the beneficaries had expended time and money dealing with the consequences of the alleged drafting negligence and that these costs might establish damages even if no tax penalty is assessed. Further, "[w]hat is less clear...is what the reaction the federal authorities will have to all of this. More precisely is there some reason the I.R.S. may find to avoid the effect of the reformation in spite of this Court's opinion? We have no way to know one way or the other, and decline to speculate." Thus, the trial court's grant of summary judgment was inappropriate. (Mike Frisch)
Posted by Alan Childress
Voting "the day of" is a scarce resource in many precincts, especially those with long lines and for voters whose jobs or responsibilities make it hard or impossible to wait more than a half hour. So I regard using early voting as a near necessity in states that offer it, and voting the day of potentially as a wasteful exercise or at least a luxury item. I will go further and make the claim that those who can vote early have a citizen's ethical responsibility to do so, at least in areas at serious risk of having long waits or administrative disruptions that prevent others in good faith from voting.
I don't think that is a Versus issue (democrat: republican, conservative: liberal). It is a citizen's thing, in a democracy that holds its elections on workdays and cannot equally ensure short lines. Give Louisiana (yes, Louisiana!) some credit on this front: we have Saturday elections for the local races except when coupled to a mandatory federal date. That is another one of Huey Long's gifts that keep on giving. Since states are unable (or unwilling) to give everyone the same feasible wait times, and even in the best of circumstances Muurphy's Lwa may kick in or machines can malfunction -- witness Homer Simpson's efforts to vote this year for a President -- every precinct is at risk of essentially turning away intended voters. Some predictably more than others, which is where I think the ethical duty lies to vote early if possible.
I came to this conclusion in response to U Miami's Professor Michael Froomkin's interesting musings on his blog as to whether to vote early in Miami. To me, especially for him in Florida, it is a no-brainer. I get his point: he waxes nostalgic about the collective emotional feel of participation that he has long felt the day of elections, walking to his polling place (and makes a nice aside about the fact that it is a Catholic church) and waiting his turn. He writes, "I’ve never voted early — there’s something about the democratic ritual of the polls, plus the convenience of the local site, only a few blocks from home, that makes it very appealing." I hope he will develop a new fond memory with the early voting process.
I actually share that sense of "day of" excitement and do not belittle it. I totally get that and can easily remember my first time too. I think many of us feel that way. But nowadays such participation is a luxury that runs the risk of hording a finite resource at the expense of others. Think of it this way. It feels luxurious because it is a luxury. If you vote the day of, you will be one extra person in a line. Someone less committed to this election than you (or just someone who has a job that allows a short window of voting time) will see that line and walk away. (I am not talking about minor inconvenience where you just fail to accommodate the tepid voter who has zero patience.) The more all of us can do to make the lines shorter that day, the more that others can vote. Especially in places like Florida, that matters. Until voting officials make it easy for everyone to vote on election day without lines, the opportunity to vote that day is a scarce resource that should not be horded or enjoyed for the luxury that it is (for anyone who can vote early).
If you can vote early and manage the inconvenience of that, why not help out the voter who cannot, and runs this risk of facing a long line the day of while thinking of their kid sitting on the front stoop at school.
An order granting summary judgment to the defendats in a legal malpractice case was affirmed by the New York Appellate Division for the First Judicial Department. The plaintiff had alleged negligence in the prosecution of a workers compensation claim. The court concluded that there was insufficient evidence that the alleged failure to obtain medical records caused damages:
While an issue of fact exists as to whether defendants were negligent in failing to obtain plaintiff's medical records relating to the intervening 1990 accident, plaintiff adduces no evidence that but for such negligence the Board would not have rejected her reopened claim for the 1983 accident (see Russo v Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, 301 AD2d 63, 67 ). There is simply nothing in the record to indicate the content of the medical records in question, and whether, as plaintiff claims, they would have shown that the intervening accident had no effect on her claimed present inability to work. Failure to demonstrate an issue of fact as to proximate cause requires dismissal of a legal malpractice action regardless of whether the attorney was negligent (id.). We have considered plaintiff's other arguments, including that defendants' failure to obtain the medical records should be sanctioned as a form of spoliation, and find them unavailing.
Tuesday, October 21, 2008
The New York Appellate Division for the First Judicial Department disbarred an attorney who practiced in Michigan. The attorney had been disbarred in Michigan as a result of a plea of no contest to one felony count of driving while intoxicated. The court here concluded that summary disbarment was appropriate in New York even though the crime is not the "mirror image" of the analogue felony offense in New York. So long as the two crimes are essentially similar, the conviction requires disbarment in New York. (Mike Frisch)
The Vermont Professional Responsibility Board has admonished an unnamed deputy state's attorney for making a frivolous statement to a court in violation of Rule 3.1. The issue before the court relating to the timing of a request to the police of discovery sought by defense counsel. When pressed, the prosecutor "spoke as if his file contained a letter documenting the date that his office forwarded to (sic) original discovery request to the police department. In fact, the file contained no such letter."
The admonition states that the prosecutor did not intend to mislead the court or opposing counsel. Rather, "his response was based on his understanding of office practices not on documentation in his file."
Terminology is important here. The disposition characterizes the assertions as "frivolous" but not as knowing falsehoods (Rule 8.4) or false representations to a tribunal (Rule 3.3). Thus, the prosecutor escapes more serious sanctions and the disclosure of his identity to the public. (Mike Frisch)
A lawyer retained to pursue a habeas corpus petition on behalf of an incarcerated client was suspended on consent for five years. The attorney and client had spoken on the telephone twice. In the first conversation, the lawyer told the client (incorrectly) that the filing deadline was the next day. The lawyer discovered his error and filed the petition on the following day by forging and notarizing the client's signature. The petition was dismissed and, in the second telephone conversation, the lawyer agreed to seek reconsideration but not to appeal. He never filed the reconsideration motion
The lawyer and client gave differing accounts of the two conversations. The lawyer submitted his false account to the bar in response to the complaint. It turns out that both conversations were recorded and that the truthful account was that of the client. As is so often the case in bar discipline matters, the cover up was as bad if not worse than the underlying ethical transgressions. (Mike Frisch)
Monday, October 20, 2008
An Arizona hearing officer has recommended a six-month suspension, followed by probation for two years, in two matters involving fees for legal services. In one, the lawyer falsely advised a mediator that his firm had incurred over $200,000 in fees and fabricated bills. The second matter also involved fabricated bills.
The misconduct was discovered by a paralegal and led to his resignation from the firm. The attorney also made false statements to the bar in the course of its investigation, claiming that his billing conduct had been approved by a supervisor at his firm. The attorney presented evidence of a bipolar disorder and that he was not taking medication when the misconduct took place. The hearing officer found that the condition "caused, but did not excuse" the violations and was a basis to mitigate the otherwise appropriate sanction. (Mike Frisch)