Saturday, December 6, 2008

Well, Yeah...

Teacher sorry for binding girls' hands, feet in slavery lesson
                             --Yahoo! News headline this morning

Number of times in teaching Torts that a very young Childress answered a 1L's question about the difference between assault and battery with a physical demonstration:  One.  Explaining myself to the dean:  priceless.  [Alan Childress]

December 6, 2008 in Teaching & Curriculum | Permalink | Comments (0) | TrackBack (0)

Final Links and Resources From Harvard's Conference on Globalization of the Legal Profession

Harvard Law School's Program on the Legal Profession has put up a useful webpage organizing sessions and materials presented at its intensive Nov. 21 conference.  Links to conference materials are included, and for several sessions you can view their presentations (see their webpage near the bottom for these links).  Also linked and credited (twice) is Jeff Lipshaw's own live blogging of the event, all as organized at a final post Jeff helpfully provided.  [Alan Childress]

December 6, 2008 in Conferences & Symposia | Permalink | Comments (0) | TrackBack (0)

Friday, December 5, 2008

Running For Judicial Office

In a case where the Kansas Supreme Court answered five questions certified by the United States Court of Appeals for the Tenth Circuit, the court dealt with the propriety of a candidate for judicial office in responding to a written questionnaire about the candidates views. The court concludes:

...judges and candidates for judicial office may choose to answer issue-related questionnaires (though they are not in any way required to do so) to the extent that the questionnaires call for the candidate's personal views on disputed legal or political issues. Canons 5A(3)(d)(i) and (ii) do prohibit a judicial candidate from answering issue-related questions, however, when giving responses would bind the candidate as a judge to a resolution of a particular case, controversy, or issue within a particular controversy. We stress that in answering any questionnaire, it is advisable--as the code's comments explain--that a candidate who makes a public statement "should emphasize . . . the candidate's duty to uphold the law regardless of his or her personal views" and to remain ever mindful of the impartiality that is essential to the judicial office.

The court further opines that a judicial candidate may not personally solicit signatures for a nominating petition:

  The underlying facts in this case illustrate the importance of determining whether a judicial candidate's conduct amounts to a solicitation of public support. When a judicial candidate engages in conduct discussed previously by personally seeking signatures on a nominating petition (rather than having his or her campaign solicit such signatures), such conduct is impermissible in this state, as it amounts to a personal request for the signor's endorsement of the judicial candidate. But when a newspaper or other media source submits questions to a judicial candidate and the candidate responds, and this exchange results in an endorsement, we conclude that the candidate is not actively seeking support or endorsement in violation of the canons. In the first example, the judicial candidate is actively seeking an endorsement. In the second, the request originated from the media source, not the candidate.

  Judges and judicial candidates are not permitted under the solicitations clause to personally and actively seek endorsements of their judicial candidacies. Judges and judicial candidates may respond, however, to requests regarding their viewpoints on disputed issues, as long as such responses do not otherwise violate the canons.

(Mike Frisch)

December 5, 2008 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Moving On

An attorney convicted of seven counts of lewd and lascivious behavior was suspended for six months by the Kansas Supreme Court, which rejected a proposed suspension of one year. The attorney, who had self-reported the conviction through counsel, had been found in violation of a statute that provides:

Publicly exposing a sex organ or exposing a sex organ in the presence of a person who is not the spouse of the offender and who has not consented thereto, with intent to arouse or gratify the sexual desires of the offender or another.

The decision notes that the attorney has withdrawn from active practice and moved to Las Vegas. (Mike Frisch)

December 5, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Legal Profession Blog Re-Named To ABA Journal's Top 100 Law Blogs

Posted by Alan Childress

Thank you to the ABA Journal for -- like last year (Jeff's funny post in 07) -- naming our blog to its 2008 Blawg100_2008_2 edition of Top 100 blawgs of interest.  We were one of just five Law Professor Blogs Network sites so named. For readers so inclined, here is the link to vote for LPB on the ABA website.  Voting ends Jan. 2. Their summary:

       Sometimes the legal ethics-oriented law profs at Legal Profession Blog slip off topic. But even in those instances, their commentary generally centers around the ethical business practices that apply to lawyers. The bread-and-butter posts here involve lawyer dis­cipline, though anything that involves lawyer conduct and the practice of law is fair game.

Not true, stories are always relevant (right). And BTW, I remoted across Driving Miss Daisy for about Img139 eight minutes the other day on some TV station and found it to be nearly unwatchable, something I had only vaguely remembered from seeing it originally.  Deference and knowing your place!  And Roll Tide tomorrow, as well. Also.

At the voting site, the ABA displays a tiny picture of one of Mike's posts plus repeats their review -- but omits the last sentence about bread-and-butter topics.  This clearly indicates the "slip off topic" remark is directed at Mike.  Learn to stay on topic Mike.  Oh, our family's first dog was named Mike, after our cousin Mike.  Some of our teachers at Tulane use a mike in the classroom now.  But I do not.

December 5, 2008 in Blogging | Permalink | Comments (5) | TrackBack (0)

Not Every Trackback We Are Asked To 'Publish' Is Reputable

" Free Networking Digree Online Course " :   I deleted this one.  This is worse than those blogs on capital punishment that had used Google AdSense and suddenly found they were advertising lots of mobility scooters (electric chairs).  [Alan Childress]

December 5, 2008 in Teaching & Curriculum | Permalink | Comments (0) | TrackBack (0)

Outbursts Violate Rule 8.4(b)

A Virginia lawyer was admonished for violating Virginia's version of Rule 8.4(b), which prohibits a criminal or "deliberately wrongful" act that reflects adversely on honesty, integrity or fitness to practice law as a result of two incidents. The lawyer had sued a former client for defamation. While leaving the courtroom, opposing counsel counsel accused him of defaming the client. The lawyer called opposing counsel a "f***ing liar" and suggested they "take the matter outside." A court bailiff and a law partner prevented further escalation of the encounter.

Later, the lawyer arrived at opposing counsel's office for the former client's deposition and was advised that the deposition had been canceled. He threw items down on the secretary's desk and said that he "did not have to take this bulls**t."

Other charges that had been brought in the matter were dismissed. (Mike Frisch)

December 5, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Exclusive Authority

In a judicial misconduct matter where an interim suspension had been imposed, the Mississippi Supreme Court held that the Commission on Judicial Performance had exceeded its authority by entering into an agreement to settle the matter, as the authority to resolve judicial misconduct cases resides exclusively with the court. The court did not severely criticize the commission, noting that lack of clarity in the rules had caused the issue to arise. The underlying case, which involved alleged misconduct in issuing an arrest warrant and holding the accused on no bond without probable cause, was dismissed as moot because the judge is no longer in office. (Mike Frisch)

December 5, 2008 in Judicial Ethics and the Courts | Permalink | Comments (3) | TrackBack (1)

Pondering the Heuristics of Baseball Players, CEOs, Lawyers, and Toothpaste

Posted by Jeff Lipshaw

Over at Concurring Opinions, the always insightful Lawrence Cunningham ponders the seeming immunity to the present financial crisis in the world of baseball salaries.

Baseball salaries versus CEO salaries have always been something of a mystery to me.  Why is there not the same populist outcry?  Sports salaries are the example I use regularly when we talk about having legislation that limits compensation in any particular area.  One could speculate that the difference is performance:  baseball players have clear metrics for performance, and they aren't rewarded for destroying value, except that they are!  See, e.g., Edgar Renteria, who just signed with the San Francisco Giants for $18.5 million for two years, after having been a complete bust with the (my) Detroit Tigers last year.  This is not to defend excessive executive compensation (whatever that is), or excessive law professor compensation, for that matter, but only to wonder about market forces generally.

Here's a quick off-the-cuff theory:  the heuristics are such that it doesn't take much to put you in a particular orbit, and once you are in the orbit, it's sticky.  Case-in-point:  Matt Cassel, who never started a game in college (he was the back-up quarterback his entire career to Carson Palmer and Matt Leinart) Images will go on the market after one moderately successful year as the fill-in for Tom Brady, because the predictors of success are so opaque that one good year does it.  (You heard it here first, by the way.  The Detroit Lions, having done this once before with Scott Mitchell, who parlayed one good year filling in for Dan Marino, will bid for Matt Cassel, proving once again that those who fail to learn from history are doomed to repeat it.)

I suppose I ought to tie this back to the legal profession, and I think I can.  When I used to be in the business of hiring law firms, I asked myself regularly why we would pay 3X or 4X to a Wall Street law firm, when we could pay X or 2X to a fine firm in St. Louis or Indianapolis or Detroit to do equivalent work.  And, indeed, one strategy was to work against the tendency to pay for the premium brand, when, if you looked at the ingredients on the label, the generics were made of the same stuff.  Oops, sorry to compare Harvard-Yale-Stanford educated lawyers at, say, Skadden and, say, Baker & Daniels to toothpaste, and even more to use the brand of the law schools to compare the quality of the ingredients!

December 5, 2008 in Lawyers & Popular Culture | Permalink | Comments (0) | TrackBack (0)

Court Clerk Censured

The Chief Clerk of the King's County Surrogate's Court was censured by the New York Appellate Division for the Third Judicial Department. After a rule had been enacted limiting fee payments to 6% of an estate, the clerk had routinely approved fee petitions in the amount of 8%. The court notes that "[s]omewhat disconcertingly" he professed to be unaware of the 1993 enactment of the fee limitation, which had been enacted to address abuses in fee payments. The court also rejected the argument that, because the clerk position did not require him to be an attorney, professional standards for lawyers were inapplicable.

The misconduct related to two orders of discipline that we had posted yesterday. (Mike Frisch)

December 5, 2008 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Mitigating Factors

The Ohio Supreme Court adopted findings of misconduct but rejected a proposed indefinite suspension in favor of a two year suspension with one year stayed on condition in a bar discipline case where the attorney had advised his client that he had filed suit, obtained a settlement of $300,000 and that the first payment of $150,000 had not received because the defendant was in jail. None of this was true. The court found mitigation, noting that the attorney was in his 50s but had only been admitted in 2003, had no prior discipline and was suffering from the effects of the murder of his son. (Mike Frisch)

December 5, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, December 4, 2008

Nice Things About Mickey Maurer

Posted by Jeff Lipshaw

Bill Henderson and others have reported on Mickey Maurer's $35 million naming gift to the eponymous Maurer School of Law at IU-Bloomington.

I taught a class on Entrepreneurship and the Law at the IU School of Law - Indianapolis while I was still the general counsel at Great Lakes Chemical (spring 2005).  I cold-called Mickey Maurer (we had several mutual friends but had never met each other), then the director of the Indiana Economic Development Corporation (appointed by the then new Governor Mitch Daniels), and asked him if he would be willing to talk to my eight-person class for a couple hours about what it was like to be an entrepreneur.

He got back to me with a "that sounds like fun," showed up at the appointed hour, spoke to the students about his experience starting up the Bank of Indianapolis, and took questions with all of the energy and down-to-earth good sense and enthusiasm for which he is beloved in Indianapolis.

He is also a crossword constructor, and has contributed puzzles to Will Shortz that have been published in the New York Times, including one that is in Shortz's book of best ever NYT puzzles.

December 4, 2008 in Teaching & Curriculum | Permalink | Comments (0) | TrackBack (0)

Indiana Law Receives $35 Million Naming Gift; University Foundation Provides 100% Matching Funds

[posted by Bill Henderson]

Mauer Today is pretty special.  Indiana Entrepreneur Michael Maurer (IU Law '67) has donated $35 million to the Law School, henceforth renaming it the Michael Maurer School of Law.  During the press conference, Indiana University President Michael McRobbie reported that the gift is eligible for Indiana University matching funds, "effectively doubling the $35 million gift."  This builds upon the $25 million Lilly Foundation gift we received last year, which also resulted in additional matching funds from the University. 

Michael ("Mickey") Maurer stated that scholarship money he received as a second year student at Indiana Law, which came from a law firm with several successful alumni, was the inspiration for the gift.  The full story from the Indiana Business Journal (a publication Maurer owns) is here.

December 4, 2008 in Hot Topics | Permalink | Comments (2) | TrackBack (0)

Excessive Fee Sanction

An attorney found to have charged excessive fees for a period of several years in his capacity as counsel to the public adminstrator of Kings County was suspended for two years and until further court order by the New York Appellate Division for the Third Judicial Department. The court described the misconduct as follows:

In his capacity as counsel to the public administrator of Kings County, respondent charged and collected excessive fees, in contravention of SCPA 1108 (2) (c) and in violation of the Appellate Division disciplinary rules (see Code of Professional Responsibility DR 2-106 [a], [c] [3] [22 NYCRR 1200.11 (a), (c)(3)]) (charge II). Specifically, respondent was appointed counsel to the public administrator in 1997 and then, for a period of about five years, he failed to comply with a 1993 amendment to SCPA 1108 (2) which requires that before any fee is considered and approved by Surrogate's Court, counsel to the public administrator must submit an affidavit of legal services detailing the services rendered, time spent, and the method or basis by which compensation is requested. The 1993 amendment was part of a reform effort stemming from an investigation of abuse of compensation to such counsels by the New York State Attorney General and Comptroller. During the five-year period, the Surrogate awarded respondent $8,613,009.35 in legal fees. Of that amount, a little less than one fourth was net income to respondent (see Matter of Feinberg, 5 NY3d 206, 213 [2005]). In May 2002, after respondent learned that an article was about to appear in a newspaper concerning his receipt of excessive fees, he met with the Surrogate who directed him to submit, nunc pro tunc, affidavits of legal services detailing the work respondent completed on estate files from the date of his appointment. He did so, but not a single fee was adjusted by the Surrogate.

The court also sanctioned the public administrator, who had earlier been removed from judicial office, and herein was disbarred:

...he repeatedly disregarded the clear statutory mandates of his office over the course of more than five years and 475 proceedings, educating himself on the SCPA requirements only in response to the newspaper's investigatory series. According to the Court of Appeals[in the removal proceeding], the record reflected not mere lapses or errors in judgment, but a wholesale failure of respondent's duty, an indifference, if not cynicism, toward his judicial office, and a debasement of his office that eroded public confidence in the integrity of the Judiciary. The Court of Appeals also concluded that the taint of favoritism in the case was strong.

(Mike Frisch)

December 4, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

"A Long Way To Go"

An Illinois hearing board has recommended denial of a petition for reinstatement of a former attorney convicted in federal court of multiple counts of bribing judges. In one of the matters, the lawyer's client had threatened to kill him if he was sentenced to prison. The lawyer secured acquittal by paying the judge $10,000.

The board concluded:

We are not in a position to suggest what Petitioner must do to satisfy this requirement for reinstatement, but we can say that based on the seriousness of his misconduct, he has a long way to go. See In re Wood, 07 RT 3004, M.R. 21816 (September 16, 2008) (an attorney who was disbarred after convictions for selling cocaine was reinstated after he acted as a government informant, was active in drug prevention and treatment groups, established support groups in areas of the state that needed them, engaged in extensive volunteer work and was employed in a position of responsibility).

Moreover, we are also not convinced that Petitioner is currently knowledgeable of the law. Petitioner presented evidence that he has read legal materials while in prison and after being released; however, that evidence is vague and inadequate to prove that he is currently knowledgeable of the law. Importantly, Petitioner has attended no continuing legal education courses.

We give little weight to the character testimony presented by the Petitioner. All of the witnesses were either close friends or family members of Petitioner, and stated that Petitioner has lead an "exemplary" life since leaving prison. None of them, however, gave details to support their conclusory statements, and we find no facts in the record. As noted, Petitioner has made amends with his family, but that is only one facet of showing that he is changed. Petitioner has presented no evidence that relates the legal profession or the community in general.

(Mike Frisch)

December 4, 2008 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Corporate Privilege

In a case involving interpretation of Rule 1.9 in the context of a motion to disqualify counsel on an interlocutory appeal, the New Hampshire Supreme Court remanded for further hearings. The case involves questions of privilege in the context of a corporate transfer. The court held:

We today adopt [a] "practical consequences" framework for analyzing what entity has dominion over the attorney-client privilege. Such framework furthers the legal principle identified in Weintraub, in that the corporate actor who gains control of an establishing corporation secures authority over its pre-existing attorney-client privilege. With respect to the matter at hand, the trial court used the "practical consequences" standard, and, accordingly, identified the proper test for determining whether CAS [the law firm] shared a valid attorney-client relationship with new T&M.

Further:

The trial court’s conclusion here, that the plaintiffs "failed to meet their burden of proving that [new] T&M continue[d] to exist as it did under Morgan Goodrich’s management," misses the mark. Whether old T&M continues to exist "as it did" under prior ownership is not the linchpin of the "practical consequences" standard. See In re I Successor Corp., 321 B.R. at 652-53 (criticizing district court’s decision that relied upon Weintraub for proposition that acquiring control of attorney-client privilege requires an effort to reconstitute or operate the pre-existing entity). Rather, the proper focus is upon whether control of old T&M passed with the transfer of ownership to [the new owners].

The litigation involves children suing parents. (Mike Frisch)

December 4, 2008 in Clients | Permalink | Comments (0) | TrackBack (0)

Does Bankruptcy Trump Restitution?

A lawyer who had been admitted to practice at age 39 was suspended by the Ohio Supreme Court for two years with 18 months stayed. The attorney had taken over a medical malpractice case from an experienced attorney that he was not competent to handle. When the case was lost for failure to adequately respond to motions for summary judgment, the client sued for legal malpractice but was unable to secure a recovery because the lawyer had failed to notify his insurance carrier. The lawyer avoided the judgment by declaring bankruptcy and securing discharge.

A conncurring/dissenting opinion would require restitution as a condition of reinstatement, concluding that bankrupcy discharge is no impediment to such an order. A dissenting opinion would impose an active suspension of one year. (Mike Frisch)

December 4, 2008 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

No Interim Suspension

The rules governing bar discipline in the District of Columbia require immediate suspension when an attorney is convicted of a felony offense, with a provision that the suspension may be set aside on a showing of good cause. In a rare instance finding such a showing, the D.C. Court of Appeals decided against an interim suspension:

We conclude that respondent has shown good cause for the court to stay the interim suspension. His prior unblemished record as an attorney; his plea of guilty to what amounts to a strict liability offense involving no scienter or moral turpitude; and the fact that his violation arose from conduct outside of his normal legal practice all suggest a very low degree of risk that permitting him to practice in the interim will harm the public. For the same reasons, but subject of course to development of a factual record in the disciplinary process, we think that the likelihood that respondent will receive a significant sanction, i.e., a suspension (if at all) of more than brief duration, is very small. Stated differently, there is a reasonable possibility on this record that interim suspension might exceed the sanction that will eventually be imposed on respondent. Considering, finally, the harm to respondent’s livelihood and ability to support his family that interim suspension may entail, we conclude that respondent has met his burden to show good cause for why the court should stay its hand.

The offense at issue involved a violation of D.C. law prohibiting engaging in the business of money transmission without a license.

It has now been pointed out to me that the court had declined (with Bar Counsel's blessing) to impose interim suspension in a case involving a criminal conviction for misdemeanor theft. Under the court's rules, such an offense is deemed a "serious crime" and requires suspension absent a showing of good cause. These two cases suggest to me that the court is more inclined to let an attorney maintain a license after conviction than it had been in the past. (Mike Frisch)

December 4, 2008 in Bar Discipline & Process | Permalink | Comments (4) | TrackBack (0)

Wednesday, December 3, 2008

Law Studies Are Not Voluntary Impoverishment

An interesting case decided today by the Maryland Court of Special Appeals dealt with a motion to modify child support filed by the mother, who had left a doctorate program at Johns Hopkins and enrolled in law school at the University of Virginia. The parties married in January 2001, had twins in February 2003 and separated in July 2003.

The mother took out student loans as well as a loan from her father, choosing a top tier law school to increase her chances for a job with significant earning potential. She got a summer job at Clifford Chance and was paid $3,017 per week for 12 weeks. She was offered and has accepted full-time employment at the firm when she graduates, at a salary of $160,000 plus discretionary bonus. The key issue before the master was whether she had "voluntarily impoverished" herself by returning to law school after the summer job and should be treated as having imputed additional income based on the summer salary. The master and circuit court so found.

The court here rejected that conclusion, finding that any impoverishment was not voluntary:

...the Mother's relentless and unremitting purpose was not to impoverish herself but to improve her financial position....The Father in this case seems to be bemoaning the fact that the Mother is not remaining in her graduate studies at Hopkins with a stipend of $2,000 per month but is engaged in a career change that will in short order result in a significantly improved financial situation to the benefit of all parties...Although ranging over a broad swath of child support law, this entire battle between Mother and Father has been waged over the limited issue of who was going to pay what percentage of the cost of child care. The Mother sought to have the Father pay a share of child care while she attended the University of Virginia Law School. She lost in that regard. The Father, for his part, sought to have his share of the cost of child care during the Mother's summer associateship reduced, through a roundabout series of rulings, from about 53% to about 20%. He lost in that regard. Unless this peripheral struggle is now encouraged to take on a life of its own, this controversy over the respective shares of responsibility for child care costs will, within a very few months, be history, even if not quite ancient history. It seems to us that that is where it belongs.

(Mike Frisch)

December 3, 2008 in Law & Society | Permalink | Comments (1) | TrackBack (0)

Sanction For Prosecutorial Misconduct

A hearing board in Illinois had recommended a 30 day suspension of the State's Attorney of Wayne County for ethical violations in a criminal prosecution. The board found:

In this case, the Respondent not only failed to disclose information favorable to the defendant in pre-trial discovery, but he also failed to correct false testimony during trial, and then he made false statements in closing argument. The Respondent's misconduct pertained to the credibility of a crucial witness and, thus, deprived the defendant of a fair trial. The Respondent made it appear to the jury that Brian Asher had no self serving motive to testify on behalf of the State when, in fact, Asher had entered into an agreement with and had received a benefit from the State. Asher was permitted to pled guilty to a Class 4 felony, and a Class 1 felony charge against him was dismissed; Asher's sentencing hearing was continued until after Sutton's trial and Asher was to receive a maximum sentence of no greater than three years if he cooperated with law enforcement officials, which included the Respondent; and Asher was released on his own recognizance following his guilty plea and agreement to cooperate. In fact, at Asher's sentencing hearing, the Respondent recommended a sentence of "30 months of probation," and pointed out that Asher had cooperated by testifying at Sutton's trial. The jury was entitled to know about "any understanding or agreement" the Respondent had with Asher but the Respondent's conduct kept this important information from the jury and improperly enhanced the credibility of Asher.

One board member favored a censure rather than suspension. (Mike Frisch)

December 3, 2008 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)