Legal Profession Blog

New Works on Ethics - "Deal with It!"

Posted by Jeff Lipshaw

The rage now in ethics, if you judge by the number of times it has shown up in the popular press, is experimental philosophy, and particularly what is rapidly coming to be known as "trolleyology."  The basic hypothetical tests the limits of utilitarian thinking by positing, on one hand, the circumstance where you save five people, but allow one to be killed, by throwing the switch to redirect the runaway trolley, and on the other, where you are able to throw one very fat person in front of the trolley in order to save five.  The experiments seem to show that people would sacrifice the one person to save five in the first case, but not in the second, there seemingly being something morally different (and less benign) about the action taken in the second.

First, I want to give credit where credit is due.  Even though Marc Hauser published a book on the subject called Moral Minds, and even though the New York Times ran a Sunday magazine article a couple weeks ago by Stephen Pinker on "The Moral Instinct," the person in legal academia who was out ahead of the curve on this issue is John Mikhail at Georgetown.  But when you pick up your New York Times Book Review section sometime between now and tomorrow morning, you'll see a favorable review of another treatment on the same issue by the well-known philosopher Kwame Anthony Appiah, Experiments in Ethics.  I haven't read the book yet - only the review - but my intuition accords with what appears to be Professor Appiah's take on all the experimental work:  the experiments are ultimately going to fail to capture the complexity of moral decision-making in our lives.

Second, in my usual unambitious way, I have fixated recently on the concept of justice, at least in the mundane kinds of non-life-and-liberty-threatening contexts I've spent most of my professional life dealing with.  There's a line from the book review that appeals to me.  Appiah says, "In life, the challenge is not so much to figure out how best to play the game; the challenge is to figure out what game you're playing."  The reviewer, Paul Bloom, a Yale psychology professor, says in response, "This is bad news for those who hope for a simple and elegant account of moral life, which includes many of us engaged in experimental philosophy."  I continue to be intrigued by the way moral philosophy spins endlessly around unresolvable paradox, full account of which takes us either to a priori truths that precede experience (and hence testable scientific theory), or scientific conclusions about instinct that themselves seem so close to the a priori that the conclusions are barely testable.  (My friend, Frank Pasquale, has dipped into this from time to time as well!)

Where does this all take us?  I wish I knew.  Notwithstanding the efforts of Plato, Aristotle, Hume, Rawls, Del Vecchio, and a host of others, all of whom are stacked up on my desk right now, nobody (not surprisingly) has nailed the issue.  My own inclination, apparently like Appiah, is that there is something permanently unresolvable and non-algorithmic about any judgment, much less moral judgment, and the correct answer to the theorists seeking either a non-testable truth or a reductivist solution goes like this:  "deal with it!"  And, much to my great pleasure, on the subject of "deal with it," my very occasional but very important (whether she knows about it or not) intellectual mentor, Susan Neiman (pictured above), has a new book coming out in May, a follow-up to Evil in Modern Thought, entitled Moral Clarity: A Guide for Grownup Idealists.  Here's a taste from the preface:

Looking back at traditional uses of moral concepts is not a search for foundations. I believe most of the interesting things philosophy can say about that search were already said by Immanuel Kant, who argued that the validity of our concepts cannot possibly be proved from outside experience, since they shape the possibility of experience itself. Not even this much can be said of moral concepts, since Kant held they were not about truth at all: truth tells us how the world is; morality tells us how it ought to be. Those who were dissatisfied with his answer spawned a small but tenacious industry devoted to proving our concepts are legitimate, the dominant business of twentieth-century philosophy. It may be possible to continue examining the problems with foundationalism or the nature of relativism forever. But for anyone more likely to be moved by Dylan than Descartes, the hour is getting late.

In short, as to the concurrent unprovability yet apparent decidability of moral issues, "deal with it."

UPDATE:  Susan Neiman also has an op-ed in today's Sunday NYT on the nature of the Holocaust memorials in Germany.

Follow-Up to Bernard Goetz Example of 'Mediation With a Mugger,' Plus Fashion Week Update

Posted by Alan Childress

A few days ago I posted on the value of litigation -- the power of declaring rights, and right and wrong, through judicial decree and not just dispute resolution.  That post was picked up and challenged by Victoria Pynchon in her Settle It Now ADR and mediation blog, in a post linked here.  Her view is that there is still a place for mediation, properly done, in norm-enforcing and social statements, plus it is clear that the adjudicative wing of this important endeavor has to be improved too.  She also has a nice, fairly long excerpt from the classic Alschuler article on Goetz's case itself, which I had not linked.  Ms. Pynchon also links to the meditor blah... blah... blog, which has the absolute best blog title of 2008 (maybe the century), and something never ever heard at family Thanksgivings or at faculty meetings:  Alan Childress makes a good point.

Neither source discussed my mediation post's rant on Jeff's rant against subway 'earspill' from iPods. I guess the consensus may well be that Jeff is right (gulp), as my ridicule could easily have been joined and yet was not.  This is especially so since the blah...blah... blog post does not reference my making good points plural.  Jeff wins this time, but the year is young yet.

And in an unrelated follow-up to my post on NYC Fashion Week, I now link the official photos from the Catherine Holstein runway show, plus rave reviews and stories from Elle, Style, FWD, FashionIndie, Nylon, DailyCandy, and Glamour.  And, interestingly enough, from none other than The Huffington Post.  ("Alan" and "fashion" also not said around family gatherings.)  Here is the original New York TImes story on Cate's debut, and the law (Skadden) connection.

La. Supreme Court Extends Legal Malpractice Suit Statute of Limitations and Discusses Duty to Insured Client

Posted by Alan Childress

Thank you to Ray Ward of the Minor Wisdom blog for letting us know:  the Supreme Court of Louisiana today ruled that a legal malpractice claim did not start to run, for purposes of the statute of limitations (called "prescription" in the civil law), just because the client was aware of the negative result (a settlement of which he disapproved).  The underlying matter was settlement of the plaintiff's medical malpractice lawsuit (in which the plaintiff here, a doctor, had been the defendant).  Here is the majority opinion and a dissent: Download 07C1384.opn.pdf.   The dissent notes that the insurance contract did not require the insured's consent to settle, so there should be no malpractice actually committed.

Ray put the larger issue well in email to me (which I hope he does not mind me quoting):  The court "expounds on a lawyer's duty to the insured client in an insurance-defense context, and to top it off, lays down some law on peremption of a legal-malpractice claim and what constitutes discovery of the malpractice."  Ray can also be read on the blog The New Legal Writer.

Little Insight

A lawyer was indefinitely suspended by the Kansas Supreme Court for engaging in an improper business transaction with a client arising out of the attempts of the attorney and his wife to either invest in or purchase the client's business, a bar known as the Red Kitten. It appears that the attorney was a patron of the bar as well as its attorney in an eviction action. Further, the attorney had been convicted of a number of criminal offenses, some of which involved alcohol-related traffic violations.

The attorney did not make a favorable impression in his argument before the court:

"we note that Respondent's demeanor and statements at oral argument before this court only amplified our concern about his health and his ability to practice law. Despite the alarm Respondent's numerous criminal convictions and diversions should raise and despite his familiarity with Olberding's evaluation results and recommendations, Respondent appeared to have little insight into his problem with alcohol. He exhibited even less interest in solving it. Under these circumstances, and in view of the harm already done to one client, the majority of this court believes indefinite suspension to be necessary. A minority would impose a less severe sanction." (Mike Frisch)

More On Qualcomm Decision

The web page of the California State Bar has a report about the much-blogged about Qualcomm decision.As we had suggested in the immediate wake of the decision, the resolution of the disciplinary referral of the magistrate judge may have to await the conclusion of the underlying litigation:

"Scott Drexel, the bar’s chief trial counsel, would not comment on the   case but said typically, the bar awaits the outcome of litigation before taking   any disciplinary action against attorneys. 'We do not want to interfere   or have an impact on a pending case unless it’s absolutely necessary,' he   said." (Mike Frisch)

If It's Not Conversion, It's Not Disbarment

An attorney was charged with 35 counts of professional misconduct in the course of representing a client in a matrimonial matter. A New York hearing panel that reviewed a referee's report sustained 26 of the charges and recommended a suspension of 2 1/2 years plus restitution. A majority of the Appellate Division for the First Judicial Department accepted the proposed discipline:

"With regard to sanction, we note that the breadth of respondent's misconduct is troubling, for at almost every turn throughout the matrimonial matter, respondent committed some form of misconduct, whether it be false notarizations, disregard of a court order, charging an exorbitant fee, threatening her client to pursue that fee, or using client funds that were in dispute. In light of this, we conclude that respondent should be suspended from the practice of law for a period of two and one-half years (citation omitted) and she is directed to make restitution to her client in the amount of $30,464.

We disagree with the dissent with regard to the severity of the sanction to be imposed, and in that vein, note the mitigating factors present, including respondent's 28-year legal career, which was previously unblemished by any disciplinary history, and the fact that she is 68 years old, suffering from a variety of ailments, and is the sole means of support for her divorced daughter and grandson. We also take into account the Referee's finding that respondent has accepted responsibility for her actions and is remorseful. More importantly, and as the dissent also notes, the Committee "did not characterize" respondent's conduct as conversion; indeed, while the Referee's report states that respondent's actions "could be deemed a conversion of funds," no finding of conversion, or venality, was made, a fact apparently not lost on the Referee, or the Hearing Panel, when their recommendations for sanctions were made. Given the totality of the circumstances presented and the absence of an opportunity to contest the allegation of intentional conversion, we disagree with the dissent's recommendation of disbarment."

The dissent finds misappropriation and would disbar:

"...respondent, over the course of approximately three years, made multiple withdrawals totaling over $30,000 from two accounts containing funds belonging to Mr. Tebbetts. Respondent knew that the money in those accounts belonged to Mr. Tebbetts; two court orders and a judgment clearly required that the funds respondent used for her own purposes were to be given to Mr. Tebbetts to reimburse his 401(k) plan. Thus, respondent repeatedly and intentionally used Mr. Tebbetts' escrowed funds for her own purposes without Mr. Tebbetts' permission...and our rule requires disbarment absent "extreme mitigating circumstances" (citation omitted)

That the Committee did not characterize as "conversion" respondent's conduct in misappropriating Mr. Tebbetts' money is immaterial. No authority or principle of law requires such a characterization or allegation to trigger our general rule that an attorney who intentionally uses on multiple occasions a client's money should be disbarred. Indeed, the applicable disciplinary rule, DR 9-102(A), does not itself use the term 'conversion' ('Prohibition Against Commingling and Misappropriation of Client Funds or Property. A lawyer in possession of any funds or other property belonging to another person, where such possession is incident to his or her practice of law, is a fiduciary, and must not misappropriate such funds or property or commingle such funds or property with his or her own').

Until now, the determinative inquiry, as we stated in Matter of Nitti (268 AD2d at 42), has been whether the lawyer 'repeatedly and intentionally use[d] clients' escrowed funds for h[er] own purposes without permission' (emphasis added). When that misconduct is committed, '[t]his Court has clearly established that, as a rule, disbarment is called for' (id.). Unfortunately, the majority forsakes this substantive inquiry and stresses that a particular label was not used by the Committee. Similarly focusing on form instead of substance, the majority disregards the fact that respondent knew she was being charged with misappropriating Mr. Tebbetts' money and relies on 'the absence of an opportunity to contest the allegation of intentional conversion.'

Moreover, no extreme mitigating circumstances are present warranting a departure from the typical penalty of disbarment..."

(Mike Frisch)

Losing Control

The New York Appellate Division for the Second Judicial Department disbarred an attorney for, among other things, allowing non-lawyers to exercise control over his law practice. He had entered into a written agreement with a business to give the company "complete authority to accept or reject personal injury clients for him and to establish legal fees...[he] agreed to accept 10% of any contingent legal fee that he received while [the company] took 90%." He had no prior disciplinary history and a number of character witnesses, but:

"The respondent explained his reasons for expanding his practice into the personal injury field, his initially unsuccessful forays into the personal injury field at a time when his practice was not going well and he was in the midst of a divorce, and his discussions with non-attorney/medallion cab entrepreneur Simon Garber, which, unfortunately, developed into the business arrangement which led to this disciplinary proceeding. Although the respondent had some ethical concerns about the agreement he entered into, he admittedly did not do enough to resolve those concerns. According to the respondent, his lackadaisical approach to 'this patently foolish arrangement' was in sharp contrast to the manner in which he had previously and subsequently conducted his law practice.

Notwithstanding the absence of harm to any clients and the respondent's professed lack of venality, he is guilty of serious professional misconduct including allowing non-attorneys to exercise control over his law practice, maintaining escrow funds in a non-escrow account, and falsely holding himself out as an partner with another attorney who has since been disbarred. Despite the respondent's characterization of his ethical breaches as isolated misjudgments, it is evident from the time frame of the charges and his total abdication of control over his practice to non-attorneys, that the misconduct involved was pervasive. Under the totality of the circumstances, the respondent is disbarred for his professional misconduct."  (Mike Frisch)

Advanced Issues In Client Confidentiality

A recent ethics opinion from the Maine Board of Overseers of the Bar deals with the ethical propriety of using third-party vendors to process and store electronically held law firm data. The opinion concludes:

"With the pervasive and changing use of evolving technology in communication and other aspects of legal practice, particular safeguards which might constitute reasonable efforts in a specific context today may be outdated in a different context tomorrow. Therefore, rather than attempting to delineate acceptable and unacceptable practices, this opinion will outline guidance for the lawyer to consider in determining when professional obligations are satisfied.

At a minimum, the lawyer should take steps to ensure that the company providing transcription or confidential data storage has a legally enforceable obligation to maintain the confidentiality of the client data involved. See ABA Ethics Opinion 95-398 (lawyer who allows computer maintenance company access to lawyer's files must ensure that company establishes reasonable procedures to protect confidentiality of information in files, and would be 'well-advised' to secure company's written assurance of confidentiality); N.J. Sup. Comm. Prof. Ethics Opinion 701 ('Lawyers may maintain client files electronically with a third party as long as the third party has an enforceable obligation to preserve the security of those files and uses technology to guard against reasonably foreseeable hacking.') ."

Expert Witnesses In Bar Proceedings

A lawyer admitted to practice in 1955 was disbarred today by the Supreme Court of Washington. The court notes that the attorney is "no stranger to the disciplinary process" and that "the actions...mirror those in prior cases." The court rejected the suggestion that the attorney was denied the opportunity to call and examine expert witnesses:

"Mr. Burtch contends the hearing officer denied him the opportunity to call
expert witnesses to establish the standard of care in the legal industry and
interpretation of the RPC.  The WSBA argues that expert testimony on the RPC is
not admissible in disciplinary hearings.  Mr. Burtch was allowed to call Judge
Kirkwood, John Farra, and Steven Johnson as expert witnesses and was allowed
leniency to conduct questioning concerning their interpretations of the RPC.  Judge
Kirkwood's testimony was limited once it was established he has been retired from
the practice of law and the judiciary for 24 years.  John Farra's expert testimony
was limited after the hearing officer recognized that in a prior disciplinary
proceeding he asserted the position on behalf of Mr. Burtch that "'[i]t is obvious

that the rules of lawyer discipline are only general guidelines . . . .'"  In re Burtch,
112 Wn.2d at 21 (quoting Br. of Resp't at 14).  As we recognized in Mr. Burtch's
prior proceeding, the rules regulating a lawyer's conduct state the minimum level
below which no lawyer can fall, not general guidelines.  Because Farra did not
appear to respect this basic premise of our ethical rules, and Judge Kirkwood was
not familiar with current ethical standards, these witnesses may not have qualified as
experts and it was within the hearing officer's discretion to limit their expert
testimony.

       Under Evidence Rule (ER) 702, an expert may testify if the testimony would
assist the trier of fact.  The party calling the expert must demonstrate that the
witness qualifies as an expert based on 'knowledge, skill, experience, training, or
education.' ER 702.  Mr. Burtch called two lawyers and Judge Kirkwood as expert
witnesses, and was given the opportunity to demonstrate their expertise.  Neither
lawyer had a specialty in ethics or any other specialty that would assist the trier of
fact in this case, the hearing officer, also a lawyer."

In sum, the court states:

"In Mr. Burtch's previous disciplinary proceeding, we found that mitigating
factors and Mr. Burtch's profession of learning valuable lessons from the charged
misconduct justified leniency.  Burtch, 112 Wn.2d at 28.  It is regrettable that today
we are discussing another decade of misconduct and ethical violations for similar
behavior.  It is clear that Mr. Burtch did not take the opportunity given him in the
last proceeding to rectify his behavior and has caused further injury to his clients. 
The Board was correct in disbarring Mr. Burtch.  We uphold its decision." (Mike Frisch)

                                 

                                             

Unlike A Fine Wine

I have previously noted my dismay at the inordinate amount of time bar discipline cases take in the District of Columbia, particularly in matters involving reciprocal discipline and/or criminal convictions. After all, once final discipline or a criminal sentence is imposed, it should not be too difficult to figure out the right result. Well, in a case decided today, the court dealt with an attorney who had pleaded guilty to felony insider trading in 2001. Final discipline was imposed in Virginia in 2002 and in California in 2005. After the criminal judgment was filed in D.C. in May 2002, it took almost six years to disbar the attorney based on the Virginia order and dismiss the criminal and California bar cases as moot.

The court is not to blame here--it entered the order two weeks after the case was submitted. The court is, of course, ultimately responsible for the system it created. (Mike Frisch)

NYC Fashion Week -- Today's Must-See Runway Show -- Has Connection to Legal Profession Blog

Posted by Alan Childress

I am still smarting from a student review I received yesterday that says I "should buy a comb and a mirror" if I teach morning classes (whereas I think -- the path of least resistance -- they should ban morning classes).  And I was not assuaged by the smiley face icon after the sentence.  So anyone who knows me would be surprised to find me and NYC's Fashion Week (much less "hipsterest" or "Olsen") in the same blog post (this one).  Still, here is a post from Fashionista blog, Who's Catherine Holstein?, featuring and picturing my sister in law Cate [with congrats to her and Victoria & Hattie]:

"When we were getting our Fashion Week thoughts together, we barely registered the name "Catherine Holstein" on the line up, but had a vague enough memory of her cute/retro designs in Teen Vogue to know it might be fun to go.

Then we noticed her slot's kicking off the hipsterest day of them all, also known as next Thursday.

Now, we hear her presentation was such a popular request for next week, it's officially closed off to any more people who think they can snag an invite.

One year ago, no editor could have picked this girl out of a line up of blonde designer wannabes, and now it looks like she might be the next leader of the Parsons Mafia.

Guess it pays to be friends with sisters whose names end in Traina or Olsen."

A Second Probation

I had wondered in an earlier post whether there has been any attempt to study the success rate of probation in bar discipline cases. Here's another failed probation case-- the attorney had been placed on probation in October 2006. The conditions required that the attorney "abide by all of the terms of his criminal probation for driving while intoxicated and maintain abstinence from alcohol and other mood-altering chemicals." He thereafter "consum[ed] alcohol to intoxication, as verified by a breath test..." and failed to notify the bar of the violation of criminal probation. Sanction: public reprimand and two years' unsupervised probation, imposed by order of the Minnesota Supreme Court. The attorney also must maintain total abstinence and attend weekly AA meetings.(Mike Frisch)

Settlement Remorse

After trial had commenced in a domestic relations case, a settlement was reached between the parties. A few days later, the husband had second thoughts and directed his attorney to seek to have the agreement set aside. The lawyer filed the motion, which was denied. The husband then sued the lawyer for malpractice. The Idaho Supreme Court held that the husband was charged with full awareness of the terms of the settlement and was estopped from bringing the malpractice claim. (Mike Frisch)

Limited Indemnification

The New Jersey Supreme Court held that a private attorney who is serving as solicitor for a board of education is not entitled to indemnification in defense of a civil suit under a policy that provides for the indemnification of "any person holding any office, position or employment with a board of education." The attorney also served as secretary pro tem of the board and thus was entitled to indemnification to the extent he was acting in that capacity in connection with the claims brought against him.

There was a dissent in part that finds the majority interpretation "crabbed" and states "I cannot agree that [the attorney], who was appointed by the Board as Solicitor, who served it faithfully and was sued as a result, did not hold a position under the Board." (Mike Frisch)

Arrest Leads To Discovery Of False Bar Application

An attorney who had failed to disclose a number of alcohol-related driving offenses was indefinitely suspended by the Kansas Supreme Court. The failure to disclose was discovered as a result of a post-admission arrest and conviction for driving under the influence. There was a disagreement between members of the Board for Discipline of Attorneys as to the appropriate sanction. The board majority rejected probation as a sanction because "[d]ishonest conduct cannot be corrected by probation." This is a truth that I fondly wish other jurisdictions would recognize.

A  board dissent would disbar:

"With respect to my perhaps more wise colleagues on the Hearing Panel, my recommendation would be for disbarment in this instance. Mr. O'Neill omitted six arrests and/or convictions which should have been disclosed on his application for admission to the Bar. The application was made under oath. This constitutes a violation of KRPC 8.1(a). While this violation may seem remote and may never have been discovered had the Respondent not been convicted of felony driving under the influence of alcohol, the pattern started by the Respondent by the omission of information in 1986 appears to be reoccurring by the Respondent's failure to report the October, 2005, driving under the influence of alcohol arrest pursuant to the informal monitoring agreement. The Respondent allowed his attorney at the disciplinary hearing to offer Exhibit A knowing that information contained therein was not accurate. This pattern of dishonest behavior toward his substance abuse problem, and attempt to conceal it, distinguishes this factual scenario from that in the case of In the Matter of Joseph M. Laskowski, No. 96,886 [282 Kan. 710, 147 P.3d 135 (2006)]. In that case, indefinite suspension was ordered by the Kansas Supreme Court. It is my opinion that the facts in the present case are more aggravated and that disbarment would be the appropriate discipline."

As always, the lesson is that disclosure at the time of the application for admission is preferable to post-admission discovery of a lack of candor. (Mike Frisch)

Bad Law Firm Rejection Letters

Posted by Alan Childress

A follow-up to our posts (Jeff's and then mine) on really bad letters of rejection sent by law firms or other prospective employers, or by law reviews:  here is a student blog's email from a Hawaii law firm or legal employer, which gives a reason for the rejection:

I regret, Hawaii has too many attorneys as it is, and the work just is not there, this is across the board….I suggest Hawaii is the worst legal market possible for any lawyer.

1Ls: Bouncing back from less than stellar grades

Posted by Alan Childress

In law schools, it's that time of year when many students are (understandably) concerned about their first set of law grades, and professors are beginning the educational process of deconstructing all this for curious students.  The truism that it is a marathon and not a sprint may be cold comfort, yet it is true (hence a truism).  Here is a good post on the subject from a law student at the Frugal Law Student weblog, and a somewhat painful endorsement of that advice from The Shark, a cal law blog.

NY Times On Correlation Between Judges' Votes and Campaign Contributions

Posted by Alan Childress

Great story this morning in the New York Times, Looking Anew at Campaign Cash and Elected Judges, by Adam Liptak in his Tuesday column on legal matters.  This one is on correlating campaign finance for state court judges and their later decisional voting patterns.  This issue was already heating up because of the recent mess in the West Virginia Supreme Court noted by Mike here and also at Legal Ethics Forum, but surprisingly the Times does not explore that obvious and direct example.  Instead it deals with more subtle patterns found by statistical methodology in Louisiana and another notable example from 2006 in Ohio. 

    The Times' Louisiana example features a study coauthored by my colleague Vernon Palmer, and quotes him to good advantage in the article.  Very interesting stuff, and all should look forward to Vernon's article appearing next month.  The "article's conclusions, to be published next month in The Tulane Law Review, are not pretty.  In nearly half of the cases they reviewed, over a 14-year period ended in 2006, a litigant or lawyer had contributed to at least one justice, sometimes recently and sometimes long before. On average, justices voted in favor of their contributors 65 percent of the time, and two of the justices did so 80 percent of the time."

    Not pretty, indeed.

Depression Did Not Cause Misconduct

An attorney admitted to practice in 1964 and who had never been previously disciplined was suspended for eighteen months by the Wisconsin Supreme Court. The misconduct involved the mishandling of three probate estates. In one matter, he had failed to file fiduciary income tax returns for more than 6 1/2 years, filed a false final accounting, failed to appear at hearings and made false statements to a court. Another matter involved similar issues where the estate was open for 9 1/2 years as a result of the attorney's inaction. The third case also involved a lack of diligence and failure to timely deposit estate checks.

As to sanction, the court stated:

" The referee considered a number of factors, including Attorney Losby's testimony demonstrating sincere remorse.  Although Attorney Losby testified as to his past medical condition of depression, the referee found that the medical evidence failed to indicate any connection between Attorney Losby's medical condition and his misconduct.  Also, while the absence of prior discipline may be regarded as a mitigating factor, the referee considered that Attorney Losby's misconduct caused harm to the heirs of the estates.  We agree that the seriousness of Attorney Losby's misconduct warrants license suspension and the recommended 18-month license suspension is necessary to protect the public and deter similar misconduct."

The finding that dishonest behavior is not caused by depression is worth noting, as some courts tend to find that such a condition explains, if not justifies, all the ethical lapses. The court also ordered restitution as part of the sanction. (Mike Frisch)

Overworked Public Defender Sanctioned

A part-time public defender for three South Carolina counties had an annual caseload of over 700 cases. He was the subject of eight complaints and defaulted on the ensuing bar charges. Thus, the hearing was limited to a determination of appropriate discipline. Over the objection of disciplinary counsel, the attorney was permitted to present evidence through a witness that some of the underlying criminal matters were favorably resolved. The South Carolina Supreme Court held that this evidence was improperly admitted. Noting that it was appropriate to give "some consideration to respondent's heavy caseload and the systemic problems with the public defender system" (quoting the sub-panel), the court concluded:

"We agree with the parties that a nine-month suspension, with participation in a law office management program and payment of costs, is the appropriate sanction for respondent.  We caution the Commission in the future to carefully weigh the continuance decision when, as in the present case, the parties present surprise evidence without prior notice to the obvious disadvantage of the other party."  (Mike Frisch)