January 29, 2008
Fees In Booze
In a case where the lawyer already is serving a lenghty suspension, an Illinois hearing board recommends a two-year and until further court order suspension for failing to act with diligence and to return an unearned fee. After personal service of the charges, the accused attorney failed to file a response. On the day of the hearing, he faxed an emergency motion to continue the hearing, claiming that he had not had actual notice of the hearing until his father told him about it and that he could not attend due to his father's medical condition. He also claimed that his father was "possibly having heart surgery" to a bar investigator. The father told the bar investigator that he knew nothing about the disciplinary hearing, had a scheduled doctor's appointment but no plans for heart surgery. Continuance denied. Default entered.
As to the fresh, client-related misconduct, the client had a misdemeanor battery charge and a related civil matter. The attorney asked for his fee in cash "because he was in the process of a divorce and wished to hide his money from his wife." He thereafter took fees in liquor rather than cash (the client owned a liquor store) and once in Vicodin. He misled the client into believing that he was working diligently on the case. (Mike Frisch)
January 28, 2008
The New York Appellate Division for the Second Judicial Department affirmed an order of the Supreme Court denying a motion to vacate dismissal of a legal malpractice claim. The plaintiff failed to establish a meritorious cause of action. Further, the plaintiff failed to file a note of issue within 90 days and had been warned that the case would be deemed dismissed for failure to comply. Reason for the failure to comply? The court states:
"With regard to reasonable excuse, the plaintiff's counsel offered nothing more than that 'the failure to timely file the Note of Issue was due to law office failure.' However, 'a conclusory and unsubstantiated claim of law office failure will not rise to the level of a reasonable excuse' ...Thus, the plaintiff failed to establish a reasonable excuse for his failure to comply with the certification order. "
When a lawyer is retained to sue another lawyer for malpractice, it is a good idea to carefully follow the rules and procedures that apply to the claim. (Mike Frisch)
The Value of Litigation: Against Settlement and Mediation
Posted by Alan Childress
Back when he was just a pup of a newsman on MSNBC and did hilarious impressions of Reagan and others on Leno, Brian Williams predicted that Bob Dole could not beat Clinton: to too many young people, Dole was that guy standing on his front porch -- fist clinched -- yelling at you, "Get off my lawwwwnn!"
Jeff Lipshaw's rant on iPods and ambient noise in subways worries me that he has reached that stage in life where he is becoming That Guy. It is worse than that. If there is any meaningless legal rhetorical device more overused than "rule of law," it is "slippery slope," but I will say it now. Jeff's rant shows all the tragic signs of entering the slippery slope toward Bernard Goetz. There are much worse things in the world than earspill, such as the analog carspill that causes physical vibration of my car (a battery?, I should ask my 1Ls), and there are much worse things than increasing deafness, which has saved many a marriage. Long live earspill on the T! Most of all, I laugh (mockingly, not "with" him) at the notion that Jeff seems to think the T should sound like a library (that is so Jeff), or that all the "ambient noise" he notes is somehow fatally worsened by the slightly marginal impact of tinny earspill. Jeff is not Goetz, then, he is the earily gifted Horton, who hears The Who.
Which brings me to my point about Bernard Goetz. Before his notorious vigilante subway stint, Goetz was once actually mugged. And then rather than watching the perp be prosecuted and brought to justice, he was forced to go through a mediation process with his mugger. It is quite possible that Goetz was not snapped by subway crime or 'kids today,' but rather by a legal system that no longer wants to state right or wrong, or enforce norms, just dispute-resolve. And let's be sure to do it in an efficient (cheap) manner. (Stoneridge, anyone?) The Goetz example was used well to argue that law and courts have important social value, in many kinds of cases, that go way beyond dispute resolution, or even trendy alternative dispute resolution, in a classic article by Albert W. Alschuler, Mediation with a Mugger: The Shortage of
Adjudicative Services and the Need for a Two Tier Trial System in Civil Cases,
99 HARV. L. REV. 1808 (1986). I could not find it free online, so you may have to read this one in your library (or the subway).
Law School Plagiarism And Bar Admission
The Georgia Supreme Court denied bar certification to an applicant who "had submitted a paper at the end of his second year of law school that was a virtually verbatim reproduction of sections of five previously published sources, none of which was cited in the paper." The Board to Determine Fitness of Bar Applicants "by clear implication did not believe his account" of the circumstances of the plagiarism. The applicant "has never accepted full responsibility for what he did, and he has not yet been rehabilitated."
Lesson? If there is something like this in an applicants past, bar admission will be denied absent an acknowledgment of the misconduct and evidence that he or she has undergone a sufficient moral rehabilitation such that the admitting court will have a reasonable degree of confidence that such behavior will not recur. (Mike Frisch)
Harsh Result In Felony Drug Possession Case
An attorney admitted in Georgia in 2000 was convicted as a first offender of felony possession of N-N-dimethylampetamine, a controlled substance. He had served in the military for 18 years, has "received numerous awards and commendations and is currently a Major in U.S. Army Reserves" and had begun to wind up practice in June 2006. An evaluation revealed no serious substance abuse problem or "serious problem that would cause major difficulties in his professional work." He also has passed nine random drug screens over the past year. The "drug use was situational and not compulsive."
Sanction? The Georgia Supreme Court ordered a suspension of 24 months nunc pro tunc to January 29, 2007 with reinstatement conditioned on successful completion of the criminal case probation and the Lawyer Assistance Program. He may petition for review if the LAP director certifies that therapy is "no longer necessary." A dissent notes that the matter involves a felony conviction and would disbar. (Mike Frisch)
No Hand Wringing
I have often expressed dismay at the time and effort (and occasional bad results) that exemplifies the process of obtaining reciprocal discipline in the District of Columbia for misconduct established by another jurisdiction's disciplinary system. For better or worse, the Supreme Court of Georgia does not agonize over the final orders of a sister jurisdiction. In a reciprocal case from Arizona, where the attorney had been suspended for four years followed by two years probation, the court noted that there was nothing much in the record about the nature of the misconduct and that the lawyer had objected to reciprocal discipline. The court suspended the lawyer in Georgia until reinstatement is obtained in Arizona. In D.C., this case would have taken several years and at least one round of briefs. In the end, I'd bet that little in the way of final discipline would be recommended. (Mike Frisch)
January 27, 2008
Suspension For Neglect, Other Misconduct
An attorney who was retained to pursue an employment discrimination claim received a settlement offer that the client agreed to accept. However, the attorney did not complete the settlement process prior to the client's death several weeks later. The attorney thereafter did not complete the settlement process on behalf of the client's estate. He then sought to settle a potential malpractice claim without advising the widow to seek independent legal advice and failed to fully cooperate with the disciplinary process. The Louisiana Supreme Court imposed a nine-month suspension for the misconduct. (Mike Frisch)
The Stoneridge Decision and the Rule of Hyperbole
Posted by Jeff Lipshaw
My curmudgeonly beef today has to do with the hyperbolic use of the phrase "the Rule of Law." To be sure, misuse of this phrase does not bother me as much as the far more widespread problem of being able to hear "music" coming from other peoples' iPods even though they are standing four feet away on the other side of the subway car and there is a full rush hour's worth of ambient noise. (Somebody coined a great word for this: earspill.) God knows what they are doing to their hearing in there. I really don't want to have to pay my share of the societal cost of repairing broken eardrums over the next thirty years. For some reason I shy away from the physical confrontation it would take to tell somebody on the T to turn it down, so I'm turning to a second-best problem to grump about publicly.
Last Friday's Wall Street Journal featured an op-ed by Paul S. Atkins, an SEC commissioner, entitled "Stoneridge and the Rule of Law." As most everyone knows, the Supreme Court rejected a theory of scheme liability against peripheral actors in a securities law violation in the case of Stoneridge Investment Partners LLC v. Scientific-Atlanta. As much as I agree with the outcome of the case, however, I am not prepared to say that a result that had gone the other way would have reflected a diminution in the "Rule of Law."
To recap the bidding, the underlying facts of Stoneridge, which had to be taken as true given the procedural posture, were really nasty. Charter Communications wanted to inflate its 2000 earnings. Charter was (and is) a cable company and bought cable boxes from Scientific-Atlanta and Motorola. Charter persuaded representatives of those two vendors to engage in a scheme whereby Charter would actually overpay by $3 per box ($17 to $20) on the condition that the two vendors immediately turned around and spent that money on advertising with Charter at ad rates four to five times the normal rates. Why? Because Charter could capitalize the cost of the boxes, but bring the ad revenue directly into current earnings, with the effect of inflating earnings. For my money, it's simply impossible to believe that the S-A and Motorola people didn’t have some idea about what the purpose behind all this was.
Larry Ribstein, Elizabeth Nowicki, and others have already done a fine job of parsing the pros and cons of the Supreme Court opinion (the primary criticism of which, even from those who support the result, is that the reliance test was misplaced; instead the Court should have held that Section 10b simply does not contemplate "scheme" liability against anyone other than the hatcher of the scheme). That's not my point here. I just want to kill the hyperbole.
Commissioner Atkins applauded the recent decision as "the mark of a court that insists on predictability and the rule of law - principles that are fundamental to the protection of investors and success of their investments." I think I understand predictability, and predictability is certainly one element that theorists suggest marks the "Rule of Law," but mere unpredictability of outcomes is not the only factor in a Rule of Law analysis. Indeed, the Rule of Law question is a tough nut. First, there is some doubt whether the question "should the Rule of Law prevail in an ordered society?" is even a meaningful question. (As Andrei Marmor points out, it's either a tautology if it means that any form of social control is law, or it's a different question having to do with whether good law should prevail.) Second, lots of theorists have chimed in on the indicia of the rule of law, and we can assume they include more than predictability (see Fuller, Raz, Finnis, et al. on generality, promulgation, no retroactivity, clarity, stability, consistency, etc.). Third, even if predictability were the only criterion, it's not clear to me that a result the other way (in my view, not a good thing) would have go so far as not to uphold the Rule of Law.
Personally, I think we are all better off saving "Rule of Law" rhetoric for instances in which detainees are convicted in secret hearings without counsel or due process, in which autocratic rulers shut down fledgling democratic institutions with the temerity to challenge the fiats of the autocrat, or in which cases are decided not on argument, but by cash payoffs to the judge. If the latest outrage doesn't rise to that level, call it bad policy, call it outrageous, call it ridiculous, but leave the Rule of Law alone.