Friday, October 31, 2008
[By Bill Henderson, crossposted to the ELS Blog]
Over the years, a lot has been written about the risks of blogging during your pre-tenure years. See, most recently, Verity Winship, "Blogging without Tenure." Well, I blogged quite a bit as an untenured faculty member. And fortunately, earlier this week I was recommended for promotion and tenure by my Indiana colleagues. It is unlikely that blogging damaged my career because (I am told) the vote was unanimous.
As a blogger, I want to publish the following section of my P&T personal statement, so that others that come after have at least one concrete data point to consider:
My inclusion of blogging under the scholarship heading is not meant to test the proposition that blog posts are scholarship. Rather, blogging has generated a wide range of professional opportunities for me and enhanced my visibility among legal academics. Since the spring of 2006, I have been a regular blogger with the Empirical Legal Studies (ELS) Blog. In June 2008, I also joined the Legal Professions Blog. Collectively, I have more than 200 blog postings, a substantial number of which discuss issues related to my legal scholarship. Many of my ideas for scholarship originally appeared in some form on the ELS Blog and were further refined by reader comments. Several references to my work in the mainstream media were the result of reporters perusing the blogs. I believe that blogging has been a very good investment of time and has generated increased visibility for Indiana Law. A complete list of my posts is located in Attachment 7.
So there you have it. I blogged because I wanted to be fully engaged in the world of ideas. I also followed a few simple principles, which I will continue to follow: (a) don't post half-baked ideas that attack serious ideas -- bake them fully, and then post; (b) blog about ideas I want to specialize in (with a few exceptions), which creates synergies with serious scholarship; (c) treat other people will respect and be ready to concede when someone else has the better of the argument or evidence -- getting it right is more important than being right.
Of course, Dan Drezner remains a cautionary tale that goes in the other direction ... though Dan came of the process with his self-respect and a tenured job at another school within few short weeks. Despite the folklore, intellectual timidity is not necessarily the best strategy for getting tenure or, more importantly, being comfortable in your own skin.
Two of my valued colleagues at Indiana who joined the faculty with me in 2003 also got the good news this week -- we went 3 for 3!
The New York Appellate Division for the Third Judicial Department denied the third petition for reinstatement of a suspended attorney who now resides in Colorado. The applicant had been interviewed by three members of the court's Committee on Character and Fitness, who had filed a report recommending against reinstatement based on concerns about the applicant's debts, practice intentions and candor during the interview. (Mike Frisch)
Thursday, October 30, 2008
A Pennsylvania lawyer has consented to disbarment as a result of his criminal conviction for arson and related offenses. He had set fire to the house of his estranged wife, which was also occupied by his minor daughter. The daughter suffered from cerebral palsy and was severely injured because the condition made it difficult to escape the conflagration. Three firefighters also were injured in responding to the fire. The house and the daughter's medical equipment were destroyed.
The Pennsylvania Supreme Court accepted the lawyer's resignation and imposed disbarment by consent. It is hard to imagine a lawyer more deserving of the sanction.
The Connecticut Appellate Court affirmed the reprimand of an attorney who was defending a claim brought by a mail carrier who had suffered a dog bite. The mail carrier had sued the dog owners, who retained the lawyer. The lawyer sought medical records and scheduled the deposition of the medical services provider. The disciplinary charges had alleged that the lawyer made a false statement to a tribunal about the alleged failure of the deponent to attend. The court here rejected claims that the evidence failed to establish a false statement to a tribunal and conduct prejudicial to the administration of justice. (Mike Frisch)
In a case involving misappropriation of client funds, the Minnesota Supreme Court ordered suspension rather than disbarment. The attorney had made full restitution of the funds. One notable aspect of the court's decision is that if reinstatement is sought, the lawyer must be reinstated to "permanent retired" status. Never seen that before. (Mike Frisch)
The Arkansas Court of Appeals affirmed a sanction award against a pro se plaintiff who had sued her former attorney for malpractice. The plaintiff had simply refiled the lawsuit after it had been dismissed on the merits and the dismissal had been affirmed on appeal. The court concluded that pro se litigants who engage in frivolous litigation are not entitled to special benefits because of their non-lawyer status. Although the doctrine of res judicata may be unfamiliar to a layperson, one who proceeds without counsel does so at their own peril. (Mike Frisch)
The Vermont Professional Responsibility Board declined to disbar an attorney who had been convicted of felony extortion and misdemeanor stalking, noting that "[t]he facts in this case break down into three distinct chapters and each chapter has a significant impact on our decision." The board imposed a one year suspension.
The first chapter was the uneventful rise of a bright young attorney who took a job in a Vermont firm. He became romantically involved with a paralegal, decided to move move with her to California and went alone to join a San Francisco law firm.
The second chapter began when therte was a delay in the start of his new job. An old friend intorduced him to crystal meth and he became hooked. His girlfriend broke up with him as a result and the criminal offense occured in the wake of the rejection. This period began in 2001 and continued through 2006.
The third chapter is described in the board's opinion:
We now come to the third chapter of this story which begins on New Year’s Day 2007. The lawyer who represented Respondent in the drug charge told him that it was either “treatment or jail.” It was then that Respondent realized that he needed to do something, and on New Year’s Day he stopped taking drugs, initially without the help of any drug treatment program. He later ended up spending two months in jail and at that point started to come around. He began attending twelve step meetings and reading the Bible. In June of 2007, he was placed in an intensive court drug diversion program which involved daily twelve step meetings and counseling. He acknowledges that the drug program was very beneficial to him. It allowed him to deal with his denial of the reality of the situation he had created in Vermont. As he testified, in his mind he was “the victim of all that was happening in Vermont.” He learned to become accountable, to admit that he was an addict. He got strength from speaking up at AA meetings, began attending church and a faith based support group.
In November of 2007, Respondent signed up for the Lawyer’s Assistance Program in California. It is a voluntary five year program designed to help lawyers with substance abuse problems. It involves individual and group therapy and random drug testing for the five year period. Respondent testified that both the individual and group counseling have helped him to understand that he made serious mistakes and to develop a new perspective on life. He has found support, friends and a rekindled hope that he might once again practice law. He believes that this program is well designed to help attorneys get their lives back on track; it is serious, intense and closely monitored.
In March of 2007 Respondent married. His wife had refused to marry him until he dealt with the drug problem. She organized a family intervention and has been supportive of his efforts at rehabilitation.
In March of 2008 Respondent completed the drug diversion program in California, and the charges were dismissed.
Respondent has no fear of relapse and has no drug cravings.
Respondent also testified about his radically different view of the break up with Ms. Gaboriault. He now realizes that he took her backing away as rejection and became vindictive. He blamed her, but he now acknowledges that it was fully his fault. He feels ashamed of the things that he did while using drugs and finds it hard now to understand what he was thinking at the time.
As to sanction:
Were we to disbar Respondent, he would no longer have access to the California Lawyer’s Assistance Program, a program which he has clearly embraced as a lifeline to continuing to live drug free and to his possible resumption of the practice of law. This program will be available to him in the case of suspension. Thus, for Respondent, a disbarment has consequences which go beyond the mere question of when and whether he can return to the practice of law, but also affects his ability to access the programs he needs to continue his recovery.
We must also consider the effect of our failure to disbar Respondent for a felony conviction on the public and its confidence in the integrity of the legal system. We hope that this decision will be viewed not as an incidence of leniency to a fellow attorney, but as an indication of the great flexibility built into the law of sanctions. Since punishment is not an appropriate response to misconduct, we hope that those reading this opinion will acknowledge that exceptional leniency is appropriate in exceptional circumstances and that the public’s confidence in the legal system will be enhanced rather than diminished.
It was Respondent’s testimony alone that convinced us that our decision is the correct one. We have no doubt that he now more fully understands the nature of his conduct while on drugs, that he takes full responsibility for his actions, and is committed to turning his life around. We were impressed by the fact that not only has Respondent stopped using drugs, but has actively sought out the support and treatment options open to him, and, it appears, used them to the fullest extent available. He has gained knowledge of himself that he did not have in the past, and he is willing and eager to share his understanding of the nature of drug addiction with others in similar circumstances.
He passed the first hurdle presented to him when he recently completed the drug diversion program which resulted in the dismissal of the California criminal charges. He has also entered into the Lawyer’s Assistance Program for drug users in California, and we are inclined to share his optimism that he will complete it successfully.
The dispostion will require the attorney to petition for reinstatement and establish that he is drug free and on the recovery path. (Mike Frisch)
Wednesday, October 29, 2008
In light of our post earlier today about the consequences on non-compliance with the terms of a suspension order, a decision from the Oklahoma Supreme Court that deals with a lawyer who had engaged in unauthorized practice in violation of a suspension order may be of interest. The court, dealing with the issue in the context of a reinstatement petition, found the lawyer's error a product of legitimate confusion and ordered a back-dated six-month suspension which in effect grants immediate reinstatement. The court states:
Here, we are not presented with an individual blatantly ignoring the rules by which he is governed. Rather, when the attorney realized he did not fully understand the language of the opinion imposing discipline in Combs I, he made multiple inquiries of the Bar Association in an attempt to keep him from violating his suspension and then later inadvertently engaging in the unauthorized practice of law for failure to have followed the rules applicable to a suspension for less than two years. He did not receive appropriate direction from the Bar Association. It is important to look at these factors and circumstances. It is uncontested that when Combs returned to the practice of law, he was convinced that he had satisfied all conditions of his suspension. Once he was informed that his name continued to be on the list of suspended lawyers, he immediately self-suspended himself and filed an application for reinstatement. A lawyer's state of mind may be considered in fashioning discipline.
We recognize that the facts of this cause are unique. The language in the original disciplinary opinion may arguably have led the attorney to believe that there were no conditions precedent to his resumption of the practice of law after the expiration of his suspension other than the payment of costs. The Bar Association did not specifically direct Combs or his counsel to the rules relating to his situation nor did it explain the requirements of the rules. Finally, the attorney completely failed to familiarize himself with the rules related to his suspension and to comply with the specific requirements of those rules. Nevertheless, Combs acted in ignorance rather than in rebellion against disciplinary authority. Furthermore, it is not alleged that any clients suffered harm because of the attorney's actions.
A dissent isn't buying:
This suspended attorney has continued his course of not following the law and the ethical requirements imposed upon members of the Bar. He now seeks to blame this Court for confusing him with its footnotes. He seeks to blame the Oklahoma Bar Association for not advising him of his responsibilities. He was responsible for knowing and following the law and the rules. Once again, he has fallen short of that requirement. I would impose a period of suspension that is not retroactive.
This decision does reinforce, albeit with a gentle tone, the point concerning the importance of an attorney reading, understanding, and complying with the terms of a court-ordered suspension. The court finds the conduct to be an ethical violation but considers state of mind in granting nunc pro tunc treatment to the second suspension order. (Mike Frisch)
The Illinois Review Board overturned a hearing board finding that a lawyer had violated ethics rules by soliciting personal injury clients through an agent in one instance while sustaining that charge in other circumstances. The decision discusses the proof required to sustain the charge:
The Administrator presented evidence that Respondent paid approximately $100,000 to the individuals named above but he had no record of the specific work they performed. Respondent admitted that several of them referred cases to him. Respondent gave testimony explaining the payments he made, but the Hearing Board did not find his explanations credible. The Hearing Board’s credibility assessment did not shift the burden of proof to Respondent. As we set forth, supra, the Hearing Board was not required to accept Respondent’s explanation simply because it was not directly rebutted.
Moreover, contrary to Respondent’s contention, the Hearing Board did not ignore the evidence pertaining to the work that Mejia performed. The Hearing Board acknowledged that Mejia probably performed some services for Respondent, but Respondent’s evidence did not explain the substantial payments that he made to Mejia. Ultimately, Respondent cannot overcome the Hearing Board’s finding that he was not credible. The Hearing Board properly relied on the circumstantial evidence presented by the Administrator and the reasonable inferences that it drew from that evidence in finding that Respondent committed the misconduct charged in Count II. While it would have been possible for the Hearing Board to come to the opposite conclusion, it is not appropriate to reverse the Hearing Board's findings just because an opposite conclusion could have been reached or is reasonable.
The review board recommends that a sixy day suspension be imposed for the misconduct found, with a dissent in favor of a reprimand. (Mike Frisch)
Reciprocal discipline was imposed by the South Carolina Supreme Court based on the lawyer's suspension in a federal bankruptcy court. The lawyer had incompetently represented a client and been ordered to disgorge his fees in 24 matters. The court concluded that a two-year suspension was the appropriate sanction:
We find that the sanction imposed by the Bankruptcy Court is most similar to a two (2) year definite suspension with the requirement of repayment of unearned attorney’s fees or costs under the RLDE. See Rules 7(b) (sanctions) and 33 RLDE (provisions regarding reinstatement following definite suspension from nine months to two years). Further, we find that the same sanction is proper as reciprocal discipline in this matter...Accordingly, we hereby suspend respondent from the practice of law in this state for two (2) years, retroactive to August 16, 2006, the date of his interim suspension. In the Matter of Edwards, supra. In addition, respondent shall repay the twenty-four bankruptcy clients as ordered by the Bankruptcy Court’s orders. Within fifteen days of the date of this opinion, respondent shall file an affidavit with the Clerk of Court showing that he has complied with Rule 30, RLDE, Rule 413, SCACR.
The affidavit of compliance, required by most courts in suspension cases, generally requires the attorney to demonstrate that all courts, opposing counsel and clients have been notified of the lawyer's suspended status and consequent inability to proceed as counsel. In my experience, many suspended lawyers fail to file such an affidavit. In D.C., that results in the suspension deemed not to have started for reinstatement purposes. The failure to file the affidavit thus results in a suspension without end. (Mike Frisch)
Tuesday, October 28, 2008
An action brought against a law firm that had served as escrow agent of payments made for vacation property use was dismissed by the trial court, an action affirmed by the New York Appellate Division for the First Judicial Department. The firm had acted properly in disbursing funds held in escrow:
Contrary to plaintiffs' contentions, the "Punta Esmeralda" development agreement was an authorized purpose because it constituted a binding contract. It contained an exchange of promises and "all of the essential terms of the contract". Accordingly, the escrow agreement authorized those disbursements. Moreover, the escrow agent properly disbursed some escrowed funds before the parties had fully satisfied their obligations under the Punta Esmeralda agreement or other payment triggers had occurred, since the escrow agreement required that defendant disburse "the amount evidenced by such agreements" for "contractually committed expenditures."
Plaintiffs' contention that defendant improperly released the entire rent amounts for residences that the sponsors had leased in Punta Esmeralda and in the Time Warner Center in New York is equally unavailing, as the leases obligated the sponsors to pay the full amount due on them, even if installment payments were permissible.
The invoices for furnishings and related expenses constituted enforceable agreements between the sellers and the sponsors and accordingly constituted proper documentation for authorized expenditures under the escrow agreement. Although some of the invoices were unsigned, the sponsors' transfer instructions, which accompanied each and every invoice to defendant, provided sufficient evidence of the venture's intent to be bound by them. (citations omitted)
An interesting decision from the Vermont Professional Conduct Board concludes that a Vermont lawyer had not properly handled the recordkeeping requirements with respect to the lawyer's escrow account. The attorney is admonished and placed on probation for a six-month period subject to specified conditions. Notably, the identity of the attorney is kept confidential.
Dean Wormer would be proud, although I recall that the motto of Faber College was "Knowledge is good." (Mike Frisch)
The New Jersey Appellate Division has held that the New Jersey Board of Medical Examiners acted within its authority to reprimand a doctor in conjunction with the grant of a medical license in the state. The reprimand related to the applicant's interaction with a patient in California, and had not been determined to be misconduct in California.
The applicant is "nationally-recognized for his work in endocrinology and infertility." The incident at issue involved a colleague (a radiologist in Atlanta, Georgia) who contacted the applicant to discuss fertility procedures. The consultation led to friendship, the administration of fertility treatments by the applicant, an intimate relationship and pregnancy. The applicant then ended the affair and a lawsuit ensued, which was settled without admission of wrongdoing.
The court deferred to the board, which had balanced the harsh result of denying the application altogether with its conclusion that the conduct could not be ignored. (Mike Frisch)
The Ohio Supreme Court has proposed new rules for judicial misconduct proceedings. The changes are summarized on the court's web page:
The Supreme Court of Ohio will accept public comment until Dec. 31 on proposed changes for how to handle grievances against Supreme Court Justices.
The most significant change to Gov. Jud. R. II would provide for the appointment of trial court judges, by the Chief Justice of the Courts of Appeals Judges Association, to conduct hearings on formal allegations of misconduct by Supreme Court Justices. As outlined in the rule, the Chief Justice of the association would designate at least 10 trial court judges each year to be appointed to serve on a three-member hearing panel. If the rule is adopted, this would be the first time trial court judges would be involved in the process.
The proposed amendments are based in part on recommendations from a 2006 report by a Court of Appeals Judges Association ad hoc committee. The proposed amendments also:
- Eliminate conflicts of interest that arise from a judge’s service on multiple review panels related to the same alleged misconduct.
- Reduce the number of appellate judges from 13 to seven that would review a hearing panel’s report.
- Limit the role of the Chief Justice of the association to the performance of ministerial functions.
- Provide clearer standards governing the review of grievances and formal complaints.
- Provide procedural clarity and uniformity throughout the rule.
- Place time limits on investigations of misconduct.
The link to the proposals may be found here.
Nevada has proposed amendments to its Code of Judicial Conduct. (Mike Frisch)
The New York Court of Appeals today upheld an order of removal from judicial office of an elected family court judge. The court sustained five charges of misconduct relating to his "violation of litigants' rights when he entered defaults and sentenced them, in absentia, to jail...as a consequence of [his] disregard of fundamental rights, five litigants were sentenced to significant terms of incarceration and at least three served several months in jail on the unlawful sentences he imposed." The judge had testified that "he wouldn't have handled any of the cases any differently."
The court noted that the removed judge "continues to believe that his actions were a permissible exercise of the ' wide discretion' given Family Court judges 'for dealing with the complexities of family life.' He fails to grasp that with such discretion comes grave responsibilities to the litigants before him as well as to their children." (Mike Frisch)
Monday, October 27, 2008
Here is a link to an interesting CNN.com story on attorney advertising and new bar regulations, in Louisiana and other states. "The rules prevent Louisiana lawyers from promising 'results' or referring to 'past successes.' They also can't use nicknames or mottos that imply an ability to get results." In: screening of ads by a bar committee. Out: "Losing is not an option."
[Alan Childress, with Hat Tip to Ashlee Cassman and Colin Ley]
A rather unusual order was entered in the Michigan Supreme Court appointing a district court chief judge. The unusual part is a dissent that notes that another candidate for the position had withdrawn from consideration and stating that the Chief Justice of the court had advised the other candidate that she did not have the votes to prevail. The dissent calls this conduct "another example of [the Chief Justice's] unprofessional, improper, and unfair conduct as chief justice." The dissent further accuses the Chief Justice of mismanagement of the court and lack of transparency: "The Supreme Court should not be a secret club run for the benefit of justices and judges."
The dissenting justice has a "personally funded" website. From the web page, the following endorsement;
I know Betty Weaver. She threw me in jail...But I would vote for her, because she straightened me out, and the sentence was just.
-Former convicted juvenile offender
"I know Betty Weaver. She threw me in jail....But I would vote for her, because she...straightened
An Illinois hearing board has filed a report recommending the dismissal of all disciplinary charges against an attorney alleged to have converted client funds. The board found the lawyer credible and rejected the testimony of the client:
Respondent earned all of the money he used from the D.C. Services account. On June 1, 2004, Lunn [the client] signed an engagement letter agreeing to pay Respondent $15,000 per month for his services. That agreement was never modified or revoked. In the fall of 2004, Lunn and Lunn Partners were being pursued by several creditors and at least one multi-million dollar judgment was entered against them. By November 2004, the Lunn Partners employees, including Respondent, were not being paid. Respondent continued to work for Lunn until October 2005. Based on Respondent’s engagement letter, between November 2004 and October 2005, Respondent should have been paid $180,000. According to Administrator’s allegations, and the admitted facts, Respondent received $159,000 from the D.C. Services account. Therefore, Respondent earned all of the money he received and, in fact, was paid less than he was owed for the period of time in question.
We also find that Lunn authorized Respondent to use the money in the D.C. Services account. It is clear to us that Lunn knew about the account. In fact, Lunn agreed to open a separate bank account to fund the operations of Lunn Partners. It is undisputed that there was nothing illegal or improper about opening this account. In December 2004, Respondent opened the D.C. Services. Not only did Lunn know about the account, it is undisputed that he gave Respondent the Peer Pederson check in the amount of $106,000 to fund the account, and specifically told Respondent to pay certain expenses with that money, including Respondent’s salary.
We further find that Lunn authorized Respondent to collect other funds belonging to Lunn Partners and to use that money to pay expenses, including Respondent’s salary. For example, in an effort to keep Lunn Partners operating, Leaders Bank agreed to lend it up to $135,000. Schuster testified that the Kelly family had invested one million dollars in Lunn Partners, and thought it could protect its investment if Lunn Partners continued to operate. The Kelly family was a part owner of Leaders Bank. The Bank did not want to lend the money to Lunn, so as a condition of the loan, Lunn executed a power of attorney, which gave Respondent broad powers over the business operations of Lunn Partners and 16 other Lunn business entities. On December 1, 2004, Respondent deposited a check in the amount of $45,000 from Leaders Bank into the D.C. Services account. In January 2005, two additional loan checks from Leaders Bank, totaling $40,000, were deposited into the D.C. Services account. Based on these facts, we find that Lunn knew about the loan and authorized Respondent to use those funds.
Additionally, Respondent testified that he discussed with Lunn all of the checks he received and deposited into the D.C. Services account, and how he used the money. Accordingly, Respondent was authorized to use the money and Lunn knew he was using it. We find Respondent’s testimony credible, and because it is credible, we find the Administrator failed to prove that he engaged in conversion. In re Smith, 168 Ill. 2d 269, 283, 659 N.E.2d 896 (1995) (the Hearing Board is in the best position to determine the credibility of the witnesses).
In finding Respondent’s testimony credible, we find Lunn’s testimony, on almost every material fact, not credible. Lunn testified that he did not know about the D.C. Services account, but also stated that when he gave Respondent the $106,000 Pedersen check, Respondent told him he would go through his brother so they could use the money. In fact, Lunn testified that in December 2004, he gave Respondent the Pedersen check with the "understanding that he [Respondent] would be able to figure out some way to deposit the check with something his brother had. Some entity his brother had." Lunn also admitted he authorized Respondent to use the money to pay Lunn, Respondent and other bills...
One interesting note is that one of the judgment creditors of the client (a financial advisor who ran several business entities that experienced financial losses) was one Scottie Pippen, who is not identified as the noted basketball player. The board also criticizes the Adminstrator for pursuing charges not contained in the disciplinary complaint. (Mike Frisch)
The Tennessee Supreme Court affirmed a decision of the Chancery Court to suspend an attorney for six months. The attorney had served as public guardian for Davidson County, reviewing hundreds of cases involving conservatorships and guardianships. The disciplinary charges involved three cases. In one, he repeatedly transferred funds from his escrow account to the consevatorship account "in a hodge podge manner without proper documentation of the ownership of the funds." He engaged in multiple transactions that led to him owing $25,000 to the conservatorship. He had failed to act with reasonable diligence in the other two matters.
The court rejected a due process claim based on the purported finding that the attorney had violated an bar ethics opinion: "A Formal Ethics Opinion is not a disciplinary rule." the court found that aggravating factors such as a pattern of misconduct and substantial experience justified the suspension. (Mike Frisch)
The Louisiana Supreme Court has entered three orders (linked here, here and here) granting conditional admission to practice law. In each matter, the attorney is now subject to a five year term of conditional admission that requires continuing cooperation with the bar's program of lawyer assistance. The orders are somewhat notable for the length of the probationary terms. (Mike Frisch)