November 20, 2008
The New York Appellate Division for the Third Judicial Department ordered reciprocal discipline of a one-year probated suspension based on the identical sanction imposed in Texas. The attorney had taken child-support payments due to his client as fees:
Respondent's client had retained him to modify a child support order. The resulting order required the client's ex-husband to pay child support and also required him to pay to the client, at the rate of $75 per month, respondent's earned legal fees, unreimbursed medical expenses, and child support arrearages. Contrary to the relevant court orders, respondent and the attorney for the ex-husband agreed that the $75 payments would be sent directly to respondent, who applied them against his earned legal fees. When respondent's client learned of the arrangement, she demanded restitution of the $75 payments. Respondent made restitution and the Texas bar charged him with professional misconduct. (Mike Frisch)
Respondent's client had retained him to modify a child support order. The resulting order required the client's ex-husband to pay child support and also required him to pay to the client, at the rate of $75 per month, respondent's earned legal fees, unreimbursed medical expenses, and child support arrearages. Contrary to the relevant court orders, respondent and the attorney for the ex-husband agreed that the $75 payments would be sent directly to respondent, who applied them against his earned legal fees. When respondent's client learned of the arrangement, she demanded restitution of the $75 payments. Respondent made restitution and the Texas bar charged him with professional misconduct.
Perils Of Co-Judging
A city court judge who had permitted partners in the law firm of her co-judge to appear before her was censured by the New York Commission on Judicial Conduct:
It is well-established that the law partners and associates of a part-time judge who is permitted to practice law are barred from practicing law in the judge’s court (Jud. Law §471). This statutory prohibition is reflected in the ethical rules, which provide that such a part-time lawyer-judge “shall not permit his or her partners or associates,” or those of a co-judge, to practice in the judge’s court (Rules, §100.6[B]). Public confidence in the courts is diminished by the appearance of favoritism when a judge presides over a case in which a party is represented by the law partners of his or her judicial colleague.
For nearly four years, in 81 criminal cases and nine civil matters, respondent allowed to appear before her in the Binghamton City Court law partners and associates of her co-judge, Robert C. Murphy. In 45 of the criminal cases, she actively facilitated these improper appearances by assigning Judge Murphy’s partner or associate to represent the defendants. By permitting these attorneys to appear before her though they were statutorily barred from doing so, respondent was complicit in persistent violations of the law.
The Commission concluded that the violations were not intentional in that the judge was unaware of the prohibition. Howver, the Commission called the decision to censure rather than remove from office a close call.
Another judge was admonished for similar misconduct involving law partners of the same judge. The Commission noted that the practice deemed unethical here had predated the assumption of the judicial post by the judge who was subject to the admonition. The judicial position is a part-time one. (Mike Frisch)
Appeal Rights Forfeited
The North Dakota Supreme Court held that a mother who had fled the jurisdiction with her children had forfeited any appeal rights in connection with an adverse custody determination. The court analysed and applied the so-called "fugitive dismissal" rule. (Mike Frisch)
"One Man Band Of Competence"
An attorney who was disbarred for misuse of funds entrusted to him in his capacity as treasurer for a county Democratic Party sought reinstatement after his disbarment. The Vermont Professional Conduct Board recommended that the petition be granted subject to completion of continuing legal education. The attorney had pursued an interest in computer law issues after losing his law license:
Prior to the disbarment Lane had developed an interest writing and lecturing on issues relating to computers and the law. In 1996, after the passage of the Internet Decency Act, he put together a book proposal which was accepted. He spent two years writing the book, Obscene Profits, which was published in 2000. He has since written two other books, The Naked Employee, published in 2003, which deals with employer surveillance of employee's computer use, and The Decency Wars published in 2006 the idea for which was sparked by the FCC's reaction to perceived indecency during the Super Bowl entertainment in 2004. He has recently had a book proposal accepted for The Court and the Cross which will focus on the religious right and the legal system.
In order to assist with the research for his books, Lane subscribes to Loislaw, a case law database similar to Westlaw. He especially reads cases from the U.S. District courts on issues relating to first amendment rights and technology issues.
During the past several years, Lane has written regularly for Newsfactor.com, a website relating to technical computer issues. He typically writes two short articles per day and is paid by the article. He chooses his own subject matter and tends to write about legal issues relating to computers. He is presently on leave from this job to write his next book, but could return at any time.
The publication of the books has led to seminar presentations for lawyers, which Lane is now doing on a regular basis. This in turn has led to requests to act as an expert consultant. Attorney James Murdoch testified about his use of Lane's services as a consultant. Murdoch, who works as a family and criminal attorney, has known Lane since the mid-1990s when they worked together on a case involving computer privilege. In recent years he has associated with Lane several times as a computer expert on issues of privacy and First Amendment rights in cases involving employee embezzlement and computer pornography. He has found Lane to be always up to date on the technical as well as the legal aspects, and that he is an articulate expert witness. Murdoch believes that there is no doubt that Lane has stayed current with the law relating to the First Amendment and free speech. He characterized Lane as an "extra-ordinary one man band of competence."
The Board concluded that sufficient evidence of moral rehabilitation had been presented to justify his reinstatement. (Mike Frisch)
Religion and Money: Pushing a Point Too Far
Posted by Jeff Lipshaw
Daniel Henninger, who comes out from behind the black curtain of the Wall Street Journal editorial page each week, had a column today that had me nodding in agreement until the last overstated conclusion.
My thesis has always been that neither economic models nor legal models will supply judgment; there's something irreducible about judgment that requires engagement with fundamental assumptions about the way the world works. Models, for example, of risk and reward, only describe pieces of the world, not the world itself. So Henninger is correct when he says that the three Rs of responsibility, restraint, and remorse "are the ballast that stabilizes two better-known Rs from the world of free markets: risk and reward."
I'm okay with that.
Northerners and atheists who vilify Southern evangelicals are throwing out nurturers of useful virtue with the bathwater of obnoxious political opinions. . . . The point for a healthy society of commerce and politics is not that religion saves, but that it keeps most of the players inside the chalk lines. We are erasing the chalk lines.
Huh? The challenge in 2008 is not to save boardrooms and management suites by fundamentalist appeals to Jesus before taking each decision. I'm not aware of anything in the Sermon on the Mount directly on point when I'm trying to figure out an optimal debt level. And why Southern evangelicals? My daughter and son-in-law were married at the Society for Ethical Culture on the Upper West Side of New York City, no doubt within shouting distance of a couple Northerners and atheists. Amazingly enough, there are a few of us (even here in Cambridge) who know that Adam Smith wrote both The Wealth of Nations and A Theory of Moral Sentiments.
No, the real challenge is demonstrating the practice of wisdom, which is something different either than adherence to a risk algorithm, davening each morning and afternoon, or singing on Sunday mornings in the choir. There's no doubt that religion can provide the source of a moral code, but I'm troubled by one that might say that God caused the Dow to fall 4,000 points to punish atheists, homosexuals, and East Coast liberals.
November 19, 2008
Settlement Remorse Fails To Move Court
An attempt to set aside a settlement agreement by a former client of a law firm was rejected by the New York Appellate Division for the First Judicial Department:
Defendants' contention that the portion of the settlement agreement requiring them to sign general releases is unenforceable is without merit. Upon application by defendants, then represented by able counsel, the trial court signed an order embodying the terms of a settlement agreement negotiated among all parties, including the McCallion firm and Grobman, defendants' former attorneys in this action. Notwithstanding defendants' unsworn protestations that they never agreed to execute general releases in favor of McCallion and Grobman, they are bound by the terms of the settlement agreement because their counsel had actual and apparent authority both to negotiate the settlement on their behalf and to apply to the court for an order embodying the terms of the settlement agreement... Moreover, with actual knowledge of the terms of the settlement order, defendants accepted and made use of the substantial benefits accruing to them under the settlement agreement, thereby implicitly ratifying the terms of the agreement.
The District of Columbia Bar is sponsoring a program on the ethical implications of lawyers engaged in lobbying activities:
Faculty experts...will use hypothetical scenarios to address the following important questions confronting lawyer-lobbyists: When is lobbying governed by ethics rules? What are the ethical implications for law firms with nonlawyers engaged in lobbying? What issues arise for law firms that lobby and have law offices in different jurisdictions? And how do conflict-of-interest rules apply to lobbying matters?
The panel also will tackle nonwaivable, personal, and other conflicts of interest that come up in the lobbying context; lobbying and the rules preventing contact with represented parties; confidentiality and the attorney–client privilege; and advance waivers and lobbying.
The program will be presented on December 4 at 6 p.m. (Mike Frisch)
An attorney who had acknowledged neglect of client matters agreed to a fully-stayed suspension of a year and a day that was imposed by the Pennsylvania Supreme Court. Of particular interest is a psychotherapist's report attached to the Disciplinary Board's recommendation setting forth the basis for mitigation and the treatment proposal that warranted a supervised probation sanction in lieu of an active period of suspension. (Mike Frisch)
Bonus Promise Enforced
In a case involving a dispute between a law firm and a former associate attorney, the Connecticut Appellate Court held that the law firm had breached an employment agreement and that the trial court had improperly struck a statutory claim based on withheld wages. The former associate had sued after departing for withheld wages and an unpaid bonus: "the evidence demonstrates that the [law firm's] promise of a substantial bonus was more than a mere gratuity...[t]he fact that the parties were indefinite as to the amount of the bonus does not render the promise unenforceable." (Mike Frisch)
November 18, 2008
Hold the Pepperoni
An attorney was suspended for a four year period by the Pennsylvania Supreme Court. Some of the misconduct findings involved unauthorized practice while suspended for non-compliance with continuing legal education obligations. The Disciplinary Board had found 339 discrete acts of unauthorized practice. The remaining problems related to his operation of the Italia Restaurante and Pizza Company in Philadelphia. He was convicted of failure to pay income taxes and related violations and had failed to report the convictions to bar authorities in Pennsylvania and New Jersey. His expressions of remorse in the bar proceedings were deemed "insubstantial and unconvincing." (Mike Frisch)
"A Professional and a Gentleman"
An Arizona Hearing Officer found that an accused attorney had not violated ethics rules and recommended that charges be dismissed in a matter where the attorney had served as personal representative of a deceased client's estate. The lawyer, who had no PR experience, hired his law partner as his counsel. While no conflicts check was initially done, it later was discovered that at least three estate creditors were firm clients. The beneficiaries, one of whom was an attorney, testified that the attorney "conducted himself like a professional and a gentleman."
The deceased had no estate save for a life insurance policy. He did compose songs and lyrics onto cassette tapes that the beneficiaries had sought, but the attorney withheld the tapes believing they had potential value. The family also believed that when the deceased died, "he fell against a grandfather clock which stopped in time." The clock was sold at an estate sale after notice to the beneficiaries. This aspect of the case calls to mind a song we used to sing in ninth grade choir.
The Arizona Court of Appeals had held in the underlying probate matter that the attorney had not violated ethics rules, as he had no duty to the beneficiaries. A complaint against the lawyer was filed by an attorney for the beneficiaries and was dismissed. The bar filed charges ten years after the initial complaint had been filed. Charges of conflicts of interest were filed but withdrawn. The hearing officer found no violation of rules prohibiting deceit and dishonesty. The accused had relied in good faith on the advice of counsel in performing his duties as PR. (Mike Frisch)
Perils Of Vanity Plates
We recently reported a summary from the Virginia State Bar's web page on the suspension of a lawyer for felony fleeing from the police. The decision of the Disciplinary Board has now been posted and provides some interesting details.
The attorney blamed her boyfriend, who she claimed was blackmailing her and had engineered the filing of the criminal charges. She denied knowingly fleeing and claimed that she did not understand her no contest plea in the criminal case. She also claimed health problems from an earlier accident.
The police officer testified that he had pursued the attorney's car but gave up the chase after he hit 80 miles per hour. He was able to observe part of the license plate, which read "DIVA." The attorney's plates were "DIVA EVA." The car had hit a stop sign but was able to get away before police arrived. The attorney had prior convictions for credit card fraud and destruction of property.
The board imposed suspension for a year and a day. A dissent noted that the attorney's testimony before the board was "combative and less than candid and forthright" and would revoke the license (law, not drivers). (Mike Frisch)
Why I Don't Facebook Very Much - The New Etiquette
Posted by Jeff Lipshaw
One of my relatives was recently upset because she thought I "ignored" her friend request to me on Facebook. I don't go on Facebook very much, and this all confirmed why. Indeed, I had been "ignoring" her friend request because I never looked at my friend requests. As soon as I saw it, I confirmed that I indeed was willing to be her friend.
In the meantime, I learned from looking at my friends page that the spouse of a well-regarded contract theorist at the law school which is a part of the institution that has the "Leibo" award named after Jon Stewart of The Daily Show wanted said theorist to get home because one of their children had spread pink Oreo filling goo all over the house.
A Fee Too High
The Illinois Review Board found that an attorney had charged an unreasonable fee and improperly divided the fee with another lawyer, but rejected charges of incompetent representation and recommended a 30 day suspension. The Administrator had not appealed the finding regarding incompetent representation but had sought a one year suspension. The lawyer had represented a client in a "large scale, high profile" federal criminal matter and had charged fees totaling $150,000. The Administrator called an expert witness to establish that the fee was unreasonable:
Attorney Marc Kadish testified as an expert witness for the Administrator. Kadish has an extensive background in criminal law. However, much of his practice has been devoted to representing poverty-level clients, either through a law school clinical program or as director of a large law firm’s pro bono program.
Kadish considered $150,000 to be a significantly excessive fee. In his opinion, it should have been apparent when Nagelberg was retained that Winniczek should have continued to cooperate with the government and plead guilty, rather than go to trial. Kadish opined that $25,000 – 50,000 would have been a "very handsome" fee for the case.
Kadish acknowledged, however, that a client had a right to change his mind and decide to go to trial. He also testified that it was not always apparent at the outset of representation whether a case would go to trial or end in a guilty plea. Kadish had not seen Nagelberg’s file and did not know the extent of Nagelberg’s work.
Kadish testified that criminal attorneys usually charge a flat fee, typically in whatever amount the market will bear. Hourly rates for the partners in Kadish’s firm, as well as some independent attorneys, were in the range of $400 – 600.
The attorney had charged a flat fee and kept no time records. He had returned $50,000 to the client after the bar charges were filed. The board concluded that the isolated incident did not warrant a period of probation. The fee was not excessive when charged but "[i]n hindsight, and only in hindsight, the fee proved excessive." (Mike Frisch)
Beetles, Frogs, and Lawyers
Posted by Jeff Lipshaw
Several weeks ago, I was provoked (in a good way) by Usha Rodrigues' reference to Ronald Gilson's 1984 article on how transactional lawyers create value as the "reigning academic account." I wrote a quick little essay and let it sit until this weekend when Gordon Smith reported on a clever quip from Professor Gilson about lawyers who become professors, and in the classic line: "I resemble that remark." I decided to update the little essay a bit and it is now on SSRN as Beetles, Frogs, and Lawyers: The Scientific Demarcation Problem in the Gilson Theory of Value Creation. Here's the abstract:
Recently, Ronald Gilson described a transactional lawyer turned law professor as someone who was a beetle, but became an entomologist. This is not the first non-mammalian metaphor used by an economically inclined legal academic to demarcate those who study and those who are studied. As Richard Posner so colorfully explained rational actors as they appear to economists studying them objectively: "it would not be a solecism to speak of a rational frog." In this short essay, I suggest that both say something about the prevailing view of theorizing that is entitled to privileged epistemic status in the legal academy. I assess Professor Gilson's classic 1984 article on value creation by lawyers in terms of its implicit claims to (social) scientific truth.
November 17, 2008
No Disbarment For Misprison Of Felony
An attorney convicted of misprison of felony was suspended for a period coterminous with his federal probation and until further court order. The facts:
Respondent admitted that he knew and failed to report that a tenant in a building that he owned was growing marihuana plants on the first floor and in the basement of the building.
The New York Appellate Division for the Fourth Judicial Department concluded that automatic disbarment was not required as there is no comparable felony under New york law.
The link takes you to the court's web page. This case is Matter of Price. The case in today's earlier post is Matter of Ciccone. (Mike Frisch)
Failure To Remit Draws Censure
An associate attorney in a law firm who had failed to remit a legal fee paid to her that was the property of her law firm was censured by the New York Appellate Division for the Fourth Judicial Department. The court considered a number of mitigating factors:
We have considered the matters submitted by respondent in mitigation, including that the misconduct was an aberration and occurred at a time when her judgment was affected by severe stress that she was experiencing as a result of personal problems. Additionally, we have considered that respondent has made restitution to the firm as well as her submission in mitigation setting forth that she had arranged for a loan that would have enabled her to pay back the retainer fee even before her misappropriation of those funds was discovered. Finally, we have considered the previously unblemished record of respondent and her expression of extreme remorse for the misconduct. Accordingly, we conclude that respondent should be censured.
The evidence showed that the fee had been deposited in the associate's former operating bank account. No indication from the opinion how the misconduct came to light. (Mike Frisch)
Moved, Left No Forwarding Address
The Louisiana Attorney Discipline Board has recommended that an attorney who had abandoned his law practice after accepting fees (which he did not earn) from five clients be disbarred. The lawyer had failed to participate in the the disciplinary proceeding and thus defaulted on the allegations of misconduct. The clients were involved in domestic relations matters and had relied on the lawyer for help:
In the course of failing to prosecute his client’s matters, failing to properly withdraw from cases, and failing to return his clients’ property, Mr. Hatfield has violated duties owed to his clients, to the legal system, and to the profession. His conduct was both knowing and intentional, as the record reflects he essentially abandoned his practice and later failed to cooperate with ODC’s requests for information. The injury was serious or potentially serious. For example, one of the domestic law cases Mr. Hatfield agreed to handle, but failed to advance, was the interdiction of someone who suffered from a mental disability and who was unable to care for himself. The record provides no basis to support any finding in mitigation. The Board therefore adopts the Hearing Committee’s findings to that effect.
A Difficult Time
An attorney suspended for neglect of four client matters was reinstated by the Pennsylvania Supreme Court. The misconduct had taken place during a difficult period of the attorney's life, when his marriage was deteriorating, his mother passed away and he was suffering from Crohn's disease. His interest in the law and abiliity to practice had been established, justifying his reinstatement. (Mike Frisch)
November 16, 2008
New 10th Edition of Morgan & Rotunda Available for Spring
I got an email stating that the new edition of the problems casebook by Tom Morgan (GW) and Ronald Rotunda (now at Chapman) is now available for spring 09 adoption, via this link.