November 7, 2008
Disregard Of Suspension Order Alleged
An interesting complaint filed by the Illinois ARDC alleges that an attorney, in anticupation of his suspension in an earlier case, hired an inexperienced associate and continued his practice in violation of the suspension. The complaint alleges:
In or about January 2008, in anticipation of a possible suspension, Respondent hired...a 27 year old, 2007 graduate of the John Marshall Law School, who was admitted to the practice of law in Illinois on November 8, 2007. Respondent hired [her] as an associate to assist him in handling the day to day operation of his legal practice during his suspension, including but not limited to court appearances, communication with clients and opposing counsel, and drafting and filing pleadings.
After the suspension, it is alleged:
Respondent had daily contact with [the associate] and his secretary/receptionist, Sara Marudecki ("Marudecki"), through his cellular phone, home telephone, by the use of a facsimile and via email. During these conversations, emails and faxes, Respondent requested information from and directed [the associate] and Marudecki to take action on various client files. These requests and directions included, but were not limited to a daily report, each afternoon, of what faxes, letters, emails, telephone messages, pleadings and checks had come into the office, arguments to be made and orders to be requested by [the associate] in court hearings, directing language to be used and statements to be made by [the associate] in oral and written communications with clients and opposing counsel, and status reports on discovery and hearings in pending cases.
If the charges are proven, I would not be suprised to see significant discipline imposed for this sort of circumvention of an order of suspension. (Mike Frisch)
Hunting Clients Leads To Permanent Disbarment
The Louisiana Attorney Disciplinary Board has recommended the permanent disbarment of two attorneys for what the board characterizes as serious violations of client-solicitation rules as well as paying non-lawyers to drum up personal injury business. The board noted that the marketing tools used to solicit business included humor, t-shirts, pens and a rap song. Also unhelpful to one of lawyers was a newspaper comment that quoted him as saying that he viewed his operation as a business first and a law firm second. (Mike Frisch)
Suing Law Students
A former Rutgers law student was sued for alleged failure to pay off student loans. He in turn filed a pro se third-party complaint against the law firm that had initiated the action for alleged violation of the Federal Fair Debt Collection Practices Act. He contended that the proper venue for the original case was where he resided and that the claim had been brought in the wrong jurisdiction. Summary judgment for the firm was reversed by the New Jersey Appellate Court, which found that the initial suit had been brought in the wrong venue. The matter was remanded with instructions to vacate the grant of summary judgment on behalf of the law firm. (Mike Frisch)
Level Of Incompetence
The Pennsylvania Supreme Court has denied the reinstatement petition of an attorney who had been suspended for misappropriation of client funds. The court accepted the report and recommendation of its Disciplinary Board, which had found that the attorney had made numerous errors and omissions in the reinstatement questionaire. The petitioning attorney had contended that the various problems with his answers (including providing an incorrect date of his admission to practice in Pennsylvania) "did not rise to the level of incompetence." The board and court concluded that he had failed to establish that he was fit to be reinstasted under the circumstances. (Mike Frisch)
"Bullies may get kick out of seeing others in pain"
That is the actual Reuters headline for the shocking and "surprising" findings of a recent University of Chicago study. Reseachers proclaimed this counterintuitive. They did not attend my middle school. Apparently we had a double-blind controlled study going on at the time. Wish I had gotten the placebo.
Next up: spouses do not like it so much when you suggest they are fat, but someone you met at the office is certainly not or is just "awesome."
November 6, 2008
No Vicarious Liability For Alleged Negligence
The dismissal of a legal malpractice claim against an attorney and his former law partners was affirmed by the Washington Court of Appeals Division III. The client had consulted with the lawyer while in the partnership but had been retained after he had withdrawn. The fact that he had maintained an office at the former firm's location and had used a retainer agreement on the letterhead of the former firm was insufficient to establish partnershiip liability:
Regarding Ms. Estep's claims against the former partners, a partnership is
generally liable for a tort committed by a partner in the course of partnership business,
and all partners are liable for partnership obligations. RCW 25.05.120; .125. Ms.
Estep contends summary judgment for her is proper based on vicarious liability
because she knew of the partnership before it dissolved and she did not receive notice
of partnership dissolution. Further, she argues Mr. Hamilton acted as though he had
authority by using a partnership retainer form and working in the old partnership
location. No material fact issues remain, contrary to her alternative theory arguments.
Essential to a principal's vicarious liability is some negligence by the alleged
agent. Above we reasoned Mr. Hamilton was not negligent, so her vicarious liability
founded on apparent authority fails. We discuss apparent authority as an alternative
ground to affirm. Ms. Estep has the burden of establishing apparent authority. State v.
French, 88 Wn. App. 586, 595, 945 P.2d 752 (1997). "An agent's apparent authority to
bind a principal depends upon the objective manifestations of the principal to a third
person." Id. at 595. Ms. Estep's subjective beliefs must be objectively reasonable.
King v. Riveland, 125 Wn.2d 500, 507, 886 P.2d 160 (1994). None is shown here.
While Ms. Estep met with Mr. Hamilton and received his business card when Mr.
Hamilton was a partner with Mr. Hackney and Mr. Carroll, she did not retain Mr.
Hamilton until after the partnership dissolved. Ms. Estep points to no acts of Mr.
Hackney or Mr. Carroll after August 7, 2003 that would lead a reasonable person to
believe Mr. Hamilton was acting with the apparent authority of his former partners.
Dealings With Former Sister-in-Law Leads To Disbarment Recommendation
A Louisiana hearing committee has recommended the disbarment of a lawyer for misconduct in the wake of his brother's death in Saudi Arabia while employed by Halliburton. The violations were brought to the attention of disciplinary authorities by the lawyer's former sister-in-law and involved his dealings with her over the brother's estate. The lawyer had determined that the ex sister-in-law was the beneficiary of an insurance policy with Halliburton. He snookered her by concealing this information and used the proceeds for himself. She complained to the bar after discovering that she was the named beneficiary. The violations involved dealings with an unrepresented person, conflicts of interest and a prohibited business transaction.(Mike Frisch)
The New York Appellate Division for the Third Judicial Department today imposed reciprocal discipline based on the lawyer's resignation from the Florida bar. The resignation was a result of a criminal conviction in federal court for a racketeering offense.
Nothing unusual here except that the conviction and resignation took place in 1993. The cause of the delay was the failure of the attorney to notify New York of the conviction and resignation. (Mike Frisch)
Misuse Of Escrow Account
The Minnesota Supreme Court accepted an agreed disposition and imposed a public reprimand and unsupervised probation for two years. The court described the misconduct as depositing earned fees into escrow and paying non-client related expenses from that account, which would involve commingling. Further, the attorney had bounced some escrow checks and thus violated the prohibition against dishonest conduct. There is no mention that the bounced checks related to client matters, which would amount to misappropriation and likely would merit far harscher discipline. (Mike Frisch)
Spare The Porcupine
An interesting decision from the New Hampshire Supreme Court reversed a conviction for the offense of felon in possession of a deadly weapon. The facts:
At trial, the State introduced evidence that the defendant had a bow, with several arrows, hanging on a rack on a wall in a recreational room in his residence, and had additional arrows located within the residence. The State also presented evidence that the defendant had used the bow and arrow to shoot and kill a porcupine on his property at some point in the past.
The court majority held that the evidence was insufficient to establish that the bow and arrows were a deadly weapon. Notwithstanding the demise of the porcupine, the court was concerned that the state's theory would criminalize the possession of rat poison by a convicted felon and reach too far.
The dissent would affirm:
While I agree with the majority that to be a deadly weapon the object must have been used, threatened to be used, or intended to be used in such a manner that is known to be capable of killing or seriously injuring a human, I believe that the bow and arrow in this case meets this definition.
Here, the defendant used his bow and arrow to kill a porcupine. Using it in this manner – to kill a living thing – is a use that is known to be capable of killing or causing serious bodily injury to a person. A mouse trap would not be a deadly weapon because, even if it were used to kill a mouse, the manner in which it was used to do this is not known to be capable of killing or causing serious bodily injury to a human. A human would not be killed or seriously injured by a mouse trap in the same way that a mouse would be. By contrast, a human would be killed or seriously injured by a bow and arrow in the exact same way that the porcupine in this case was killed.
The Globalization of the Legal Profession
[by Bill Henderson, crossposted to the ELS Blog]
For anyone interested in the economic and political forces that are reshaping the legal profession, here is an event that you need to attend. On Friday, November 21, the Harvard Law School Program on the Legal Profession and the American Society of International Law are sponsoring a conference entitled "The Globalization of the Legal Profession." Conference registration is free, but space is limited. Details are online here.
Back in April, the Center for the Study of the Legal Profession at GULC put on a conference entitled the "Future of the Global Law Firm." Similar to upcoming program at Harvard, speakers included academics, practitioners, clients, and allied professionals. The shared sense of rapid and major structural change was palpable. I consider the upcoming program an important extension of that conversation.
Further, as I reflect on the proliferation of so-called "global law schools" in China and India, which are being set up to serve major US and UK legal employers (and a topic at the HLS event), I am convinced that globalization will eventually reshape the American legal education system. Now is the time to plan; in ten years, the majority of law schools could be in the uneviable position of reacting to a major structure change.
November 5, 2008
The Learning President
Posted by Jeff Lipshaw
Back in March, 2007, before I owned an Obama button (which I acquired the day of the New Hampshire primary, when I did a hour or so of phone bank calling, ugh), I posted something on the mastery or learning mindset. It came from Stanford Professor Carol Dweck, and I summarized it as follows:
The thesis is that there is an additional outlook, or mindset, wholly unrelated to intelligence, that frames how we look at problems. The distinction is between a "fixed mind-set" that sees intelligence as static, and a "growth" or "mastery" mind-set that sees intelligence as something that can be developed. The fixed mind-set about wanting merely to be smart, but the mastery mind-set is about wanting to learn. As a result, if you simply are smart but not a learner, you would have a tendency to discount effort, avoid challenges, give up easily in the face of obstacles, and be defensive, particularly about making mistakes. Learners, on the other hand, like challenges, persist in the face of setbacks, embrace effort, and tend to find lessons in mistakes. I thought one of the conclusions in a diagram of the model was interesting - it generalizes that fixed mind-set confirms a deterministic view of the world but a mastery mind-set gives a greater sense of free will.
Over at PrawfsBlawg, Ken Simons offers up the thesis that part of the reason Barack Obama won was because of his "academic temperament." I think he's on to something, but I don't think the right answer is academic temperament. With all due respect, I've met a lot of law professors, and a lot of non-law professors, and I'm still not convinced there is a greater likelihood you have the mastery mind-set because you are a law professor.
What I think I responded to in Obama from the very beginning is what Laurence Tribe describes in his touching Forbes.com essay today: "Barack Obama's unique ability to explain and to motivate, coupled with his signature ability to listen and to learn."
Honestly, I don't recall, at least since Kennedy, a learning President. And I'm not sure about Kennedy, because I think his personal peccadilloes might have disqualified him.
Non-Participation Leads To Disbarment
A lawyer charged with neglect of client matters and had failed to participate in the resulting discipline charges was disbarred by the Oklahoma Supreme Court. The lawyer's situation was described by the court as follows:
Respondent was unprepared to respond to the allegations in the grievances. Instead, she offered a number of excuses for her failure to respond. These included her "extreme medical problems" along with the medical issues surrounding her mother and grandmother, her difficulty in receiving her mail, and her divorce. She claimed that the client files that she needed to respond to the grievances were locked in the trunk of her car and the trunk would not open. When the Assistant General Counsel informed her that a Rule 10 proceeding was being considered, based on physical incapacity, Respondent denied that she was incapable of practicing law. Within a week from the time of her deposition, Respondent had a battery of psychological tests performed by a psychologist and an assessment by the physician treating her physical ailments. Both professionals concluded that Respondent was capable of practicing law.
The lawyer agreed to a diversion program but failed to follow through on the agreement. As a result, a case that should have not drawn a suspension leads to the ultimate sanction:
There is no doubt that Respondent has failed repeatedly and knowingly to respond to lawful demands of a disciplinary authority in violation of Rule 8.1(b) ORPC. It is equally clear that she has failed to submit a written response within twenty days after service of the grievances as required by Rule 5.2 RGDP. Throughout these disciplinary proceedings, Respondent was given notice of the allegations of misconduct and was afforded the opportunity to respond. Instead of responding to the grievances or the complaint however, her communications with the Office of General Counsel consisted of requests for more time and excuses for not responding.
Respondent's recalcitrant conduct demonstrates a pattern of neglect that extends far beyond her failure to respond to the grievances or the complaint. She failed to comply with the terms of her Diversion Program Agreement. Respondent failed twice to attend her hearing before the PRT. She offered to resign and an affidavit of resignation was prepared and forwarded to her. Yet, true to her pattern of neglect, she did not follow through. Respondent has entered no appearance before this Court, nor has she filed a brief. When ordered by this Court to show cause concerning the final discipline to be imposed, Respondent did not respond.
The court concluded that the disregard of court orders merited disbarment. (Mike Frisch)
The South Carolina Supreme Court imposed disbarment retroactive to the date of an interim suspension, as a result of a criminal conviction for the following misconduct:
In 1996, Respondent was indicted for common law obstruction of justice and offering a witness money with the intent to influence testimony in violation of S.C. Code Ann. § 8-13-705 (Supp. 1998) in connection with his representation of a defendant who was charged with burglary. The State presented evidence that Respondent offered the accuser money to drop the charges against the defendant and that he sent an investigator to pressure the accuser to drop the charges. The jury found Respondent guilty of obstruction of justice, but acquitted him on the statutory violation.
November 4, 2008
Massive Voting Problems in Cambridge, Mass.
Posted by Alan Childress
Blog post, updating regularly, here on how registration lists in Cambridge were incomplete and many voters were forced to vote "provisionally." I already thought Cambridge was the heart of communism so this may be some indication of that. Jeff reports that he and Alene voted without a hitch but the woman in front of them was unhappily redirected to the provisional pile.
In Louisiana, I received a text message last night on my cell phone telling me that due to long lines expected today, obama voters must wait till Wednesday to vote.
And seeing CNN right now, they just cannot get their heads around race (or past it). They are interviewing black person after black person about voting for Obama. It is as if a white person could not identify with him or see the historical moment. The white voters are certainly not being interviewed about how they "feel" about this. (It reminds me that during the convention the TV cameras always caught black delegates' reactions and ignored white ones, whenever black speakers spoke, as if Obama was the candidate for one demographic of the party. Was it Chris Rock who said the cameras do that during Oscar telecasts?) I honestly believe that most Americans, Democrat or Republican, are fairer and more mature about race than many in the media are, if only because keeping the racial-divide story going is such good entertainment for ratings purposes. Why ask a white person (or a black one, for that matter) if they prefer Obama's tax policy or McCain's stance on Iraq? Not a real story in their eyes. Too boring. Really it is appalling that many in the media just cannot see a vote for either McCain or Obama as about anything other than race. I had hoped we'd gotten past that in the primaries, but apparently not. Maybe someday, and maybe starting tomorrow.
No Need To Be Superhuman
An attorney who had engaged in a series of retail thefts from Kohl's and sold the stolen items on Ebay under the name "1legaleagle1" had her license revoked by the Michigan Attorney Discipline Board. The board rejected the suggestion that the attorney's depression mitigated the sanction:
There is no question that depression can have a serious debilitating impact on a person and can lead to self-destructive behavior. However, nothing in this record helps us find the elusive causal link pursued by the panel between respondent's depressive episode and her sophisticated theft, retail fraud and fencing operation. In short, we cannot distinguish respondent from a person without the fundamental ethical grounding that prevents one from cheating, stealing or lying when the chips are down or circumstances are dire. A member of the bar need not be impervious to stress or be superhuman, but he or she must have the character to reject the option of theft under the circumstances of this case. Accordingly, we affirm the hearing panel's order of revocation. (Mike Frisch)
There is no question that depression can have a serious debilitating impact on a person and can lead to self-destructive behavior. However, nothing in this record helps us find the elusive causal link pursued by the panel between respondent's depressive episode and her sophisticated theft, retail fraud and fencing operation. In short, we cannot distinguish respondent from a person without the fundamental ethical grounding that prevents one from cheating, stealing or lying when the chips are down or circumstances are dire. A member of the bar need not be impervious to stress or be superhuman, but he or she must have the character to reject the option of theft under the circumstances of this case. Accordingly, we affirm the hearing panel's order of revocation.
No Risk, No Contingent Fee
The Louisiana Attorney Disciplinary Board has recommended a stayed one-year suspension with a year of probation for three partners in a law firm. The core allegations related to a contingency fee agreement where there was no risk that the lawyers would not be paid. The agreement, which gave the law partners an interest in client real property, violated the business transactions rule (Rule 1.8(a)) as well as the rule relating to contingent fees. The board rejected charges of dishonesty in determining that an active suspension was not appropriate. (Mike Frisch)
A Serious Scrape
The Illinois ARDC recently filed a complaint charging the attorney with what I would describe as garden variety client-related misconduct (which is pretty serious if it is your garden that is not being tended properly) but it was a third allegation that caught my eye:
At all times alleged in this count United States Marine Corps Sergeant Michael McNulty owned a 2002 BMW with U.S. Marine Corps license plates and a U.S. Marine Corps bumper sticker.
On December 1, 2007, Respondent intentionally scraped a metal object along the passenger side of Sgt. McNulty’s 2002 BMW, scratching the paint off of the vehicle while it was parked in front of 7631 N. Eastlake Terrace, in Chicago, Illinois, and causing at least $2,500 of damage to the vehicle. Respondent said to Sgt. McNulty, "Just because you are in the military you don’t run the roost!"
On that same date, Respondent was arrested in connection with the incident described in paragraph two, above, and charged with criminal damage to property in violation of 720 ILCS 5.0/21-1-1-A. The Clerk of the Cook County Circuit Court docketed the matter as The People of the State of Illinois vs. Jay Grodner, docket number 071318441.
On January 18, 2008 Respondent stipulated to a set of facts before the Honorable William P. O’Malley, following which Judge O’Malley found Respondent guilty of criminal damage to property, sentenced Respondent to one year of supervision, ordered him to pay $600 in restitution to Sgt. McNulty by February 25, 2008, and to complete 30 hours of community service.
I'd be interested in, as Paul Harvey would say, the rest of the story. (Mike Frisch)
November 3, 2008
"The Strongest Possible Terms"
A hearing committee in the District of Columbia recently filed a 168 page report recommending disbarment as a result of misconduct findings in four matters. The hearing committee held hearings on 12 days over a three-month period. The findings and conclusions are unusually blunt:
The record in these cases reveals a pattern of behavior that is at odds with a license to practice law. Respondent has repeatedly violated his obligations to his clients and to tribunals. Even more troubling, Respondent has a pattern of violating his primary obligation as a member of this Bar: the obligation to be truthful. He has filed demonstrably false "verified" pleadings. He has lied to multiple judges. In efforts to gain an advantage or avoid a consequence, he has repeatedly denied receiving notices, orders, and pleadings that were sent to the proper addresses for him. He has repeatedly engaged in eleventh-hour attempts to frustrate or delay legal proceedings. He plainly perjured himself before this Hearing Committee.
One of the matters involved a dispute between the lawyer and his siblings over their parent's fortune. The misconduct involved instituting frivolous litigation, overcharging his mother (who suffered from Alzheimer's) legal fees and culminated in the abduction of his mother. The full story, as told by the committee, is a tale of a dysfunctional family (and a grossly unethical person as well as lawyer) that takes on the quality of a daytime television drama.
In another matter, his deposition had been scheduled and he sought to reshedule (in his words) like "a Virginia gentleman" not a "New Jerseyan asshole." The incident is discussed at page 53.
The committee recommends disbarment "in the strongest possible terms." The report lays out in great detail the gross misuse of the legal process and obstruction of the disciplinary process on the part of the accused attorney. Kudos to D.C. Bar Counsel for perserverance in the prosecution of an attorney who appears to have mastered the art of delay. (Mike Frisch)
November 2, 2008
"Basically An Extortionist"
An interesting bar discipline matter is described by the California Bar Journal as follows;
Brar [the attorney] gained notoriety in 2003 for filing hundreds of lawsuits that then-Attorney General Bill Lockyer said violated the state Unfair Competition Law, also known as §17200 of the Business & Professions Code. Lockyer accused Brar of engaging in illegal business practices and called his firm “a quick-buck racket that has inflicted financial harm on law-abiding small business owners.”
In recommending his disbarment, State Bar Court Judge Richard Honn said Brar “has engaged in a nearly continuous course of serious misconduct” since shortly after his 2000 admission to the bar. He “used the legal system as part of a scheme to extract settlements from small businesses for his own enrichment and in violation of court orders preventing him from doing so,” Honn wrote in the disbarment recommendation. The judge said Brar’s actions amount to “serious breaches” of an attorney’s fundamental ethical mores.
Brar sued more than 400 nail salon owners in Orange, San Bernardino and Riverside counties, alleging they violated health and safety codes by using the same bottle of nail polish on more than one customer. His firm, Brar & Gamulin, also sued 140 ethnic grocery stores, charging them with video piracy for not labeling videotapes correctly. In 2004, Orange County Superior Court Judge Peter Polos ordered Brar to pay nearly $1.8 million in civil penalties as well as sanctions and enjoined him from filing any more cases under 17200 without meeting requirements in the Civil Code. The judge called Brar “basically an extortionist.”
Despite the order, Brar filed three new lawsuits under 17200 within nine months, accusing 237 named defendants and 750 “Doe” defendants of not posting notices of fees charged at ATM machines in their stores. Most of the defendants owned liquor or convenience stores. There was no relationship among the defendants and no question of common fact among them. As was his pattern in earlier lawsuits, Brar sent the defendants threatening letters in which he offered to settle the matter for roughly $750 and encouraged a quick settlement in order to avoid additional fees and costs.
Polos held Brar in contempt and sentenced him to 15 days in jail.
Prior to the Orange County judgment, Brar had filed suit against 55 named defendants and 100 Does for allegedly violating the Immigration Consultants Act by failing to post a bond required by the code. Honn found that Brar filed the matters “for an improper purpose, namely to conduct volume litigation . . . with minimal overhead so as to maximize profits from settlements.” By improperly joining defendants, Brar avoided paying filing fees of $185 each for separate actions.
The bar court found that Brar committed 17 acts of misconduct: he disobeyed court orders, filed unjust actions, committed acts of moral turpitude, failed to pay court-ordered sanctions and did not cooperate with the bar’s investigation. He never paid any civil penalties or sanctions.
Brar also was convicted of five felony counts of tax evasion last July and is currently serving one year in the county jail. The bar placed him on interim suspension following the convictions. He has been ineligible to practice law since March 2007.