December 3, 2008
World's Greatest Edit. Ever.
This Sunday is Pearl Harbor Day, actually falling on a Sunday no less. New Orleans is the home of the DDay Museum, which has really exapnded into a magnificent collection on World War II generally. There are lots of other New Orleans sites to see on a visit, but put this on your list. It is even walkable from downtown, or off the streetcar, since it is near Lee Circle off St. Charles Avenue. I see that it in fact is now congressionally known as America's "National World War II Museum."
The museum displays the speech FDR read the next day by radio address to the nation and to Congress. (It may be a copy or on loan from the FDR Library in Hyde Park.) You can see where the draft originally says, "a date which live in world history." The museum also provides by Pdf this lesson plan for educators who want to teach students the speech along with its context and impact. (Please teach them the edit, too!)
Better edit than whoever removed the comma in "Call me, Ishmael."
If you go, look for my uncle Joe Gillion's brick on the sidewalk just outside the coffee place. He parachuted in, somewhere near Normandy, on DDay.
Getting You Where You Live
A lawyer who was a former member of the Louisiana House of Representatives was suspended for six months with all but 60 days deferred in favor of unsupervised probation in a matter where the lawyer had been charged with providing a false "domicile address" on his certifed statement of candidacy for city council. The bar charges had been filed in the wake of a judicial decree that had declared him ineligible as a candidate for office on the New Orleans City Council. A puiblished dissent would find the statements were not false and would impose no discipline, noting a distinction beween domicile and residence. Another dissent (without specifying reasons) would impose more severe discipline. (Mike Frisch)
Resign Before Running
The Louisiana Supreme Court affirmed findings of misconduct against a justice of the peace made by the Judicial Commission of Louisiana but rejected the proposed sanction of removal from office in favor of suspension without pay. The misconduct involved the failure to resign from the judicial office while seeking a non-judicial elective post. The court concluded that conscious intent to violate the judicial canons was not required to establish a violation and concluded that the misconduct cast a negative light on the judiciary. In mitigation, the court that the justice of the peace had never been the subject of prior discipline. (Mike Frisch)
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio has suspended the law license of attorney Frank J. Simmons Jr. of Toledo for one year, with the last six months of that term stayed, for representing clients in two Michigan courts in 2006 while his Ohio law license was under an administrative suspension. Simmons is not licensed as an attorney in Michigan.
The Court adopted findings by the Board of Commissioners on Grievances & Discipline that Simmons falsely represented himself as a member of a joint law practice with his sister, who is licensed to practice in Michigan, and signed his sister’s name without her knowledge or permission on court documents that identified the sister as counsel of record in the cases where he appeared and requested that the court allow Mr. Simmons to appear in her place.
The court's opinion is linked here. (Mike Frisch)
ABA Ethics Teleconference 12:00 Today and "Value Billing"
December 2, 2008
Effect of "High Score" Rule on Volume of LSAT Repeaters
[posted by Bill Henderson, crossposted to ELS Blog]
A couple of years ago, Paul Caron flagged an obscure ABA rule change that required law schools to report the highest LSAT score of an admitted student versus the prior practice of averaging. Paul and Moneylaw blogger Tom Bell foresaw a likely surge in the number of repeat test-takers -- but without any appreciable benefit. Repeat scores are, in fact, less accurate in predicting law school grades -- though, let's not kid ourselves, law schools are not looking at the LSAT anymore for predicting 1L performance. It also costs a lot of time and money. And if upper class white kids are better able to afford test preparation courses, it is likely to exacerbate the racial performance gap.
Well, the data is in for the October 2008 cycle. It is indisputable that applicants are figuring out the implications of a low LSAT score in the US rankings era (fewer admissions letters, few scholarship dollars) and the potential upside/no downside of taking the exam again. Despite a -1.7% drop in first-time takers, the repeater volume is up 16.8%. In the Northeast, where the positional competition is the most intense, there has been a staggering 33.7% increase.
From an individual perspective, I know it makes sense to take the test a second or third time. Indeed, it is comforting to many to have that option. But in the aggregate, this policy really just opens the door for a protracted zero sum game. If law schools were making better decisions because of the second or third scores, the additional time and expense could be justified. The second scores, however, are less reliable than the first and second combined.
Understanding these dynamics, the regulator (the ABA Section on Legal Education and Admission to the Bar) is supposed to set rules that are in the best interests of the students and the profession -- not law schools or testing agencies. Sam Stonefield of Western New England Law wrote a very detailed objection to this policy. He was prescient. I appreciate the time he took to spell it all out.
Help Wanted at the Wharton School
My good friend David Zaring alerted me to these job postings in the Legal Studies and Business Ethics Department at The Wharton School:
A Difficult Client
An opinion issued today by the North Carolina Court of Appeals tells the tale of a particularly difficult client in a criminal case involving felony breaking and entering and rape offenses where the victim was married to the defendant. By my count, the client had discharged three lawyers (another had withdrawn due to a conflict of interest) and a standby counsel. The first appointed lawyer received a letter stating YOU ARE FIRED (emphasis in original). The second lawyer was accused of "racial tensions" and "insignificant counsel." The third withdrew because he had represented one of the state's witnesses. The fourth was discharged after the client filed a complaint against him with the Bar. The client complained that appointed standby counsel was "no help." He decided to represent himself and waived his right to counsel.
On the eve of trial, the client had second thoughts and sought to revoke his waiver. The trial court denied the request and the court here affirmed the conviction: "The trial court did not abuse its discretion...Furthermore, defendant may not claim on appeal that his self-representation was inadequate." (Mike Frisch)
Student Privacy Rights Opinion
A recent opinion of the North Dakota Attorney General in response to a newspaper request for student disciplinary records concludes:
FERPA [the Family Educational Rights and Privacy Act] does nor prohibit the release of disciplinary proceedings if an educational institution can adequately remove all personally identifiable information from those records. The University of North Dakota violated the open records law when it incorrectly responded that FERPA prevented the release of all disciplinary records and because it failed to consider whether the requested records could be released after removing all personally identiable information.
The newspaper had sought records relating to any sanctions imposed on a student based on allegations of taunting a fellow dorm resident concerning his Jewish heritage, writing anti-Semitic graffiti in an elevator with ice cream and possession of a mock weapon. The names of the students involved had already been reported by the newspaper and released by the local prosecutor's office. (Mike Frisch)
More On DUI Sanctions
From the web page of the Virginia State Bar:
On September 26, 2008, the Virginia State Bar Disciplinary Board suspended [an attorney's] license to practice law for eighteen months based on a conviction in the City of Richmond Circuit Court of driving under the influence - third offense. The suspension is effective retroactive to April 24, 2008 - the date that his license was summarily suspended by the board pending a disciplinary hearing.
As we have previously noted, the sanctions for this form of criminal conduct vary widely from state to state. (Mike Frisch)
BMW? What BMW?
A hearing committee in Louisiana has recommended a public reprimand and ethics school based on a complaint filed by a former client and alleged "runner" who the committee found to be "evasive and at other times contentious, with much of his testimony of questionable credibility." The committee found that the lawyer had made improper loans and advanced living expenses to the complainant but insufficient evidence that the complainant had secured clients for the lawyer or made false statements in the bar investigation. The bar had charged that the lawyer lied in denying that he had purchased a BMW for the complainant. (Mike Frisch)
Nice Work If You Can Get It
In a case that involves claims of unconscionable fees, the New York Court of Appeals affirmed the Appellate Division's determination that the claims could not be resolved by motion to dismiss. The client had sought a revised retainer arrangement in an estate matter after being billed over $18 million in fees. A settlement occurred. The client brought suit to rescind the revised agreement and for return of all fees paid over a 22 year period and also claimed that bonuses and gifts to the lawyers violated attorney ethics rules. The court here held:
In light of the applicable standard of review in resolving a motion to dismiss a petition, we conclude that the facts and circumstances surrounding the revised retainer agreement have not, at this time, been sufficiently developed to determine whether or not the agreement was unconscionable at the time it was made. Petitioner Graubard Miller has not had the opportunity to lay bare admissible proof as to, among other things, whether the revised retainer agreement was fair, reasonable, and fully known and understood by Mrs. Lawrence. Further, appellants have not submitted admissible, conclusive proof that the firm’s petition is somehow deficient and/or that dismissal is otherwise warranted.
December 1, 2008
The Michigan Attorney Discipline Board rejected claims of mental disability related mitigation and upheld a panel order of revocation in a matter involving theft and conversion:
Respondent was a partner at Varnum Rittering Schmidt & Howlett LLP ("Varnum"). He joined the firm in 1983 and left in July, 2006 to go to the Grand Rapids office of another firm. He was a corporate lawyer with a substantial income and book of business. He was described in testimony at the hearing as a "superstar." His clients included the Gainey Corporation and its principal, Harvey K. Gainey, Sr. Respondent was active in the management of Varnum, serving as the Corporate Practice Chair and managing and developing the firm's consulting group. He was active in community organizations and on boards and, according to a 2003 evaluation, he managed many key relationships profitably and effectively. It was also represented to the panel that the personal fees billed and collected by respondent were the highest in the firm. The firm recognized this with a $60,000 bonus which, with similar bonuses in other years, brought his annual compensation from the late 1990's forward to a range scaling from $400,000 to in excess of $500,000. Records from 2005 also show that respondent was a successful rainmaker for his firm and had significant personal production and managed a very significant amount of legal work.In 1986, respondent incorporated Covesco, Inc., which he characterized as a "shell company" and which functioned as respondent's alter ego, according to Varnum. Respondent admitted that prior to July 2006 he transferred to Covesco credits and trust account balances belonging to Gainey Corporation and Varnum. The amount of client credits and trust account .proceeds transferred to Covesco were estimated to be in the range of $40,000 to $45,000 by Terrance Bacon, Varnum's general counsel.
Respondent also took money from his firm through fraudulent or improper expense reimbursement requests. He entered into an agreement, after a review of records with Mr. Bacon, in which he admitted that he was paid by Varnum for unjustified expense items based on Oosterhouse having falsely described the expenses as incurred for the benefit of clients or Varnum, and in which he admitted that the unjustified expenses requested by and paid to or for Oosterhouse over a ten year period likely fell within the range of $50,000 to $80,000.
The panel found that respondent engaged in "sophisticated manipulations of client invoices, credits on client fees that were diverted to Covesco, and other devices which hid [his] activities," citing, as one example, that respondent "carefully orchestrated the transfer of excess legal fees from flat fee assignments to the Covesco account, and then applied those credits to other lawyers' time so that they appeared to perform statistically at a better level."
As for the mitigation, the board found that the panel had applied the proper legal standard to the mitigation claims and that probation (as the attorney had sought), rather than revocation, would be contrary to the public interest. The board agreed with the panel's conclusion that the misconduct reflected a character flaw rather than an inability to assimilate into the law firm's culture of integrity:
A disposition toward honesty does not depend on acceptance into a law firm culture in a person's mid-twenties or, if it does, that might be referred to as a character flaw.
The Grand Rapids Press reported earlier this month that the lawyer was recently appointed as the chief operating officer of the now bankrupt Gainey Corporation. (Mike Frisch)
The Louisiana Attorney Disciplinary Board has recommended a two year suspension and ethics school for an attorney for neglect and dishonesty (false assurances to the client and false statements in the bar investigation). The attorney, who is now living in Florida and not practicing law, had asserted as mitigation the dislocation caused by Hurricane Katrina. Bar Counsel had contended that the mitigation claim was, pardon the pun, overblown:
ODC argues in its Initial Brief that the hearing committee placed too much emphasis on the effect that Hurricane Katrina had on the Respondent as it relates to his alleged misconduct. ODC argues that much of the Respondent’s neglect of Mr. Bolling’s case occurred between the March 29, 2004 filing of the lawsuit and the August 29, 2005 date of Hurricane Katrina. ODC maintains that by the time the hurricane struck, Mr. Hebert’s failure to act with due diligence and failure to communicate accurately and truthfully with his client had already caused harm to Mr. Bolling. Moreover, Mr. Bolling’s complaint was received by ODC in April of 2005, it was delivered to Respondent’s office on April 27, 2005, and the Respondent filed his misleading response to the complaint on May 12, 2005, all before the time the hurricane struck. According to ODC, the only post-hurricane misconduct of the Respondent occurred at the March 3, 2006 sworn statement, where Respondent continued to provide the same false and misleading information that he had provided in his May 12, 2005 pre-hurricane response. Because of this, ODC apparently maintains that the mitigating factor of personal problems should not be given the amount of weight it was given by the committee. Instead, ODC suggests that the correct legal conclusion is that the aggravating and mitigating factors balance out one another, and that there is no basis upon which to deviate from the baseline sanction of a two year suspension.
The board agreed that the mitigating and aggravating evidence balanced out. (Mike Frisch)
An Arizona hearing officer has recommended the reinstatement of an attorney suspended by consent for two years and six months in the wake of a federal conviction for wire fraud and conspiracy to commit wire fraud. The attorney had been released from prison in June 2004. After his release, he worked as a paralegal and development consultant. The criminal scheme also had involved "the son of a highly respected Baptist minister in Branson, Missouri" and "an attorney with a major law firm in New York" as well as a purported representative of a major Wall Street investment firm, who turned out to be an FBI agent.
The hearing officer found that the attorney was candid, remorseful, had a clear understanding through psychiatric treatment as to why he had done it and that "[h]e stated that under no circumstances would he ever engage in such conduct again..." The hearing officer further discounted the criminal conduct as "a 'paper crime' which, admittedly through no act of the Applicant, never came to fruition and thus injured no one." (Mike Frisch)
A notice recently posted on the web page of the Pennsylvania Bar Disciplinary Board provides access to a new informational video that will assist consumers of legal services in understanding the disciplinary process:
The Disciplinary Board of the Supreme Court of Pennsylvania recently released an informational video, posted on its Web site www.padb.us, entitled Assuring the Citizen Access to the Commonwealth’s Legal System. The video provides an overview of the Disciplinary Board and the activities that occur within the organization. It’s been designed to simplify what is a complex process, and to make it easy for both attorneys and consumers to understand the policies and procedures within the Disciplinary Board.
Led by a host and narrator, the viewer is provided a step-by-step understanding of the structure, various office locations, and rights afforded to the citizens of the Commonwealth when filing a complaint regarding the performance of an attorney. Of particular interest is the set of the video, shot primarily within the Chambers of the Supreme Court of Pennsylvania, which is located within the State Capitol building in Harrisburg.
I applaud any effort to provide ready information about the lawyer discipline process. Kudos to Pennsylvania. (Mike Frisch)
Duty To Disclose
A hearing committee of the District of Columbia Board on Professional Responsibility found that a member of the North Carolina Bar had engaged in misconduct by failing to disclose a pending complaint in applying for D.C. admission:
Respondent...is an experienced practicing attorney who applied for admission to the District of Columbia Bar on the strength of her North Carolina Bar membership, but failed to provide honestly and completely the information that the District of Columbia Committee on Admissions had requested. Respondent knew that there was at least one grievance pending against her in North Carolina, and that three additional fee disputes were "ripening into" grievances due to Respondent’s failure to cooperate with the fee dispute program in North Carolina.1 Respondent did not disclose these North Carolina disciplinary proceedings to the Committee on Admissions, and falsely stated in a notarized Supplemental Questionnaire on the eve of her swearing-in that there were no pending "charges or complaints" against her.
The committee recommends a nine-month suspension with a requirement that the attorney petition for reinstatement. (Mike Frisch)
November 30, 2008
Non-Compete Not Enforced
The Iowa Court of Appeals declined to enforce a non-compete provision against a physician who had left his employment at the College of Medicine of the University of Iowa after concluding that he would not obtain tenure. From the summary on the court's web page:
Dr. Thomas Warren was employed as an assistant professor with the College of Medicine at the University of Iowa. He was primarily engaged in research, but saw patients one day each week at Cancer Care of Iowa City. He signed a non-compete agreement which prohibited him from practicing medicine within two years or fifty miles after he left the University. Dr. Warren came to realize he was not going to achieve tenure, and he resigned his position with the University. He became employed with Iowa Blood and Cancer Care, P.L.C. (IBCC), in Cedar Rapids. The University filed an action against Dr. Warren seeking an injunction to prohibit him from practicing medicine in violation of the non-compete agreement. The district court denied the University's request for an injunction, and it appeals. OPINION HOLDS: The University has not met its burden to show the restriction was reasonably necessary for the protection of the University's business. Dr. Warren had limited contact with patients while at the University. He arranged to transfer his patients from Cancer Care to other physicians there. We conclude Dr. Warren did not attempt to solicit or "pirate" the patients of Cancer Care. The University has not shown it suffered or will suffer a loss of business due to the practice of medicine in Cedar Rapids by Dr. Warren. We also find the restrictive covenant is prejudicial to the public interest. There was evidence that the federal government had designated Cedar Rapids as underserved by physicians. Based on these findings, we conclude we need not decide whether the restrictive covenant is unreasonably restrictive of the employee's rights. We affirm the decision of the district court.
Not All Lapses Breach Fiduciary Duties
In an appeal of the dismissal of an action brought by a criminal client against his former public defender, the Missouri Supreme Court remanded the action. The allegation involved the failure to call certain witnesses in a post-conviction proceeding. The former client sued on a theory of breach of fiduciary duty, which the court here rejected based on its conclusion that not all lapses by a lawyer violate such duties. The lawsuit did not allege confidentiality or conflicts violations that would establish a basis for such a claim. Nonetheless, remand was required because the pro se plaintiff had not been given adequate opportunity to amend his pleadings. (Mike Frisch)