December 9, 2008
No Summary Judgment In Legal Malpractice Case
The Oregon Court of Appeals reversed an order granting summary judgment to a lawyer defendant in a legal malpractice action. The putative client had sought assistance with respect to a property division in a divorce case. It was undisputed that the client wished to limit costs. The client consulted the lawyer, who referred him to a paralegal for assistance:
In July 2001, plaintiff met with defendant. Plaintiff showed defendant the informal agreement that he and his wife had reached, and they discussed that agreement in detail. Plaintiff and defendant had several subsequent meetings, and they discussed the parties' assets and possible distribution of those assets during each meeting. During one of the meetings, defendant told plaintiff that "what [plaintiff and his wife] had agreed upon was adequate." Defendant then "referred [plaintiff and his wife] to 'Karen[,]' a paralegal who he said did good work and to whom he had referred other people." Plaintiff then contacted the paralegal and asked her to prepare the documents for the final property division.
When the agreement was drafted by the paralegal, the client had the lawyer review it. After executing the document, he later consulted with another lawyer, who advised him of problems with the agreement. The client sued the first lawyer for malpractice, contending that (1) the referral to an untrained paralegal (2) advising that the paralegal was competent to handle the matter (3) failing to determine the nature and complexity of the matter and (4) failing to advise the plaintiff to seek the advice of a competent attorney established a viable malpractice claim.
The court held that there was evidence that the defendant had suggested that the paralegal route was the "way to go" and was sufficient to create a triable issue of legal malpractice. (Mike Frisch)
"A Mild Mannered Person"
An Arizona hearing officer has recommended a censure with probation for one year of an attorney for conduct in defending a client on charges of first-degree murder and drive-by shooting. The lawyer had prevailed on a motion to exclude "prior bad act" evidence including a conviction for second-degree murder that had been vacated, carrying a concealed weapon and acts of (and a conviction for) domestic violence. In closing argument, the attorney stated:
You know a lot about Jesse through the various witnesses in this case. You know that Jesse is married, has kids, went to Apollo College. He's a masseuse. Handled a conflict or a potential conflict by writing a letter. That he has no prior, has no prior felony convictions. No evidence of trouble. A mild mannered person who has handled his problems not in a violent sort of way, but with some sort of intellectual way or by presenting some letter.
It was too late for the prosecutor to rebut the argument with the bad acts evidence. The client was found guilty of manslaughter and drive-by shooting.
The lawyer accepted a settlement that acknowledged knowingly making a false statement of fact or law to a tribunal, alluding to irrelevant or inadmissible evidence and conduct prejudicial to the administration of justice. Otherwise, "she is one of the best defense attorneys in [Pima] County." The attorney was "very remorseful" and the misconduct was "an isolated misstep in what has otherwise been a fairly long and accomplished career." (Mike Frisch)
Every Partner's Nightmare
The Kansas Supreme Court imposed an indefinite suspension of an attorney who had failed to represent a number of clients as a result of depression. The court notes the intervention of other attorneys in the firm:
The Respondent practiced law with Brad Medlin until July, 2005, when Mr. Medlin left the practice and moved to Florida. Thereafter, in September, 2005, the Respondent formed a partnership with Sarah A. Sypher.
The Respondent and Ms. Sypher remained as law partners from September, 2005, until April 20, 2007.
During the period of time the Respondent practiced law with Ms. Sypher, the Respondent failed to return telephone calls to clients, the Respondent failed to diligently represent clients, the Respondent failed to take necessary action in many bankruptcy cases and received 12 orders to show cause based upon his inaction, the Respondent accepted cases that he was not competent to handle, and the Respondent provided Ms. Sypher with false information regarding the status of cases.
On April 20, 2007, Ms. Sypher and Christopher Kuehn, an attorney, confronted the Respondent regarding the problems in his practice. Ms. Sypher and Mr. Kuehn encouraged the Respondent to seek assistance in handling what appeared to be personal problems.
At the hearing on this matter, the Respondent acknowledged that he suffers from depression, that he may suffer from attention deficit disorder, and that he is an alcoholic. Following his meeting with Ms. Sypher and Mr. Kuehn on April 20, 2007, the Respondent reported to Mirror's, Inc., for intensive outpatient alcohol treatment. The Respondent successfully completed the program and continues to participate in AA meetings. Additionally, after the Respondent ceased practicing law, the Respondent contacted Don Zemites with the Kansas Impaired Lawyers Assistance Program. The Respondent worked with Mr. Zemites in addressing his alcoholism until Mr. Zemites' death. Since Mr. Zemites' death, the Respondent has not sought or obtained assistance from the Kansas Impaired Lawyers Assistance Program.
The Respondent has not sought or obtained an evaluation or treatment for depression or attention deficit disorder.
After leaving the practice of law on April 20, 2007, the Respondent did not contact his clients, opposing counsel, or the courts in which he had pending cases to notify them that he would no longer be practicing law. The Respondent left the practice with the understanding that Ms. Sypher would take over the representation and assist his clients. The Respondent took no action to assist Ms. Sypher with the transition.
The course chosen by the partner here is far preferable to ignoring the issues in the practice. I have seen a number of cases where the failure to address the problems created by the non-functioning partner have led to disciplinary consequences for other lawyers in the firm. (Mike Frisch)
No PAC For Judicial Candidate
A new opinion from the Oklahoma Judicial Ethics Advisory Panel:
Question(s): May an attorney who intends to become a candidate for judicial office at the next election cycle (2010) establish a "political action committee" as opposed to a "candidate committee" at this time, in excess of one year before the filing period, for the purpose of soliciting support and campaign contributions?
The party requesting an advisory opinion cites Canon 5 of the Oklahoma Code of Judicial Conduct which provides that "a candidate may establish a committee of responsible persons to perform these acts on the candidate’s behalf no earlier than 90 days before an election filing period. He then points out that the Oklahoma Ethics Commission’s rules recognizes a distinction between a "candidate committee" and a "Political Action Committee."
Discussion: Canon 1: A judge should uphold the integrity and independence of the judiciary.
Canon 2: A judge should avoid impropriety and appearance of impropriety in all of the judge’s activities.
We first note that a candidate for judicial office is bound by the Canons of Judicial Ethics.
We have repeatedly stated in our advisory opinions that a judge or candidate for judicial office should always conduct his or herself in such a manner as will instill public confidence in the integrity not only of the person, but the judicial system.
Therefore we hold that it is not permissible to establish a committee by a different name, but for the same purposes and thereby circumvent the specific time frame the Canons impose on such activities cannot do anything but further the unfortunate public perception that the legal profession too often resorts to such subterfuges and could not but raise questions as to integrity and appearance of impropriety.
You Can Pick Your Friends and Your...But Not Your Family
The Massachusetts Committee on Judicial Ethics opines that a judge may not continue to serve as a court-appointed conservator absent a close familial relationship with the ward, which was not present in the situation presented:
The Committee dealt with similar issues in CJE Opinions 08-9,97-3, 00-2 and 03-3. In each of those opinions, the Committee recognized that the question of "close familial relationship" was inherently fact driven and susceptible to no single overarching test or criterion. Accordingly, we followed the lead of the Court of Judicial Discipline of Pennsylvania in the case of In re Horgos, 682 A.2d 447, 451-452 (Pa. Ct. Jud. Disc. 1996) which distinguished mere friendship from a close familial relationship by considering eight factors: "(1) intimacy of address, (2) recognition by others of a close relationship, (3) shared meals, (4) frequent contact either by phone or in-person, (5) shared holidays, (6) shared family events, (7) assistance with physical, medical, legal or emotional needs, and (8) longevity [of the relationship]." The Committee noted, however, that the presence of fewer than all of the factors would suffice where "the essence of the relationship [was] nurturing." See also Indiana Commission of Judicial Qualifications Advisory Opinion #5-89.
Consideration of those criteria leads the Committee to conclude that your relationship with the ward does not qualify as a close familial relationship. Although the ward has no other active familial relationships, you do provide some assistance with medical and legal needs, and it has been a long relationship, the lack of the other factors tips the balance into the non-familial category. There is no relationship by blood; you do not share an address; there is no recognition by others that you have a close relationship and you do not perceive the relationship as close yourself; you do not provide any "direct" assistance with physical, medical or emotional needs; you do not share meals, holidays or family events; and you are not in frequent contact.
The opinion notes that the inquirer had served for 30 years. (Mike Frisch)
December 8, 2008
MPRE Scaled Scores & Percentiles: Minimum Passing Score, NY & Other States
The MPRE scores are now out for the November 8, 2008 testing. Here is an earlier LPB post discussing percentiles and scaled scores, and a follow up post here on minimum scores in various states (including New York, California, and Utah), with further links to such charts. And this final LPB post links a great article by an NCBE official, Dr. Susan Case, on the test's difficulty and passing numbers.
Further, the comments to a post at the blog Nuts & Boalts have John Steele asking takers what topics were asked about (on the Nov. 8 administration) that came as a surprise even after good exam prep -- with several informative replies answering his query. "Partisan arbitrator," anyone?
Also, earlier this fall we linked to several real students' musings on the MPRE. [Alan Childress]
Our Friend Ficker
The Maryland Court of Appeals has reinstated Robin Ficker with an order that does not discuss either the prior discipline or any findings concerning present fitness to practice. Ficker is perhaps best known as a heckler at Washington professional basketball games. As the Washington Post reported when the Wizards moved to their present downtown location:
The Washington Wizards are moving downtown to the new MCI Center without their most notorious fan. Robin Ficker, whose heckling of opposing players forced the NBA to change its rules on fan behavior, will no longer be in the stands on a regular basis when the team, formerly known as the Bullets, takes the court this fall.
Ficker said yesterday that he did not renew his season tickets, in part because his two seats directly behind the opposing team's bench at US Airways Arena were going to be relocated to a location underneath the basket when the team moves to the new arena. The Wizards will begin playing at MCI Center on Dec. 2.
The Bethesda lawyer and former Maryland representative was a fixture at Bullets games for 12 years, often clad in a homemade Bullets T-shirt and always berating opposing players from his perch in the front row. He was known — and disliked — by players and many of his fellow fans for trying to psyche out and distract the opposing team by reading aloud passages from books about their lives, holding up rubber chickens or shouting at players through a megaphone as they huddled with their coaches. Some fans, however, enjoyed Ficker.
"I sent a letter to [Wizards owner] Abe Pollin saying it was a shame he treated loyal fans that way," Ficker said. "I told him I love the NBA players but not the owners."
The court had suspended him in June 2007 for at least a year for carelessness in the operation of his law office, where he had a high volume practice involving primarily criminal, drunk driving and motor vehicle cases. (Mike Frisch)
A Dog Named Mike
At the risk of being accused of going off topic, I found rather interesting a decision of the Oregon Court of Appeals holding that a settlement agreement resolving the breakup of a domestic partnership was not invalidated by a subsequent dispute over visitation rights of a dog with the charming name of Mike.
Following the parties' execution of the agreement, the trial court took the case off the active trial docket and placed it on inactive status. In the meantime, plaintiff developed second thoughts about the agreement. In particular, she became concerned about the provision that pertained to the dog, Mike. Plaintiff fired the lawyer who had represented her up to that point and retained new counsel, who advised her that the dog visitation provision was unenforceable. On September 25, 2006, plaintiff's new lawyer sent a letter to the court and to defendant, informing them that she was rescinding the August 30 settlement agreement and asking the court to place the matter back on active status.
The court held that, in light of a severability provision in the original agreement, the motion to undo the entire agreement was properly denied. The legal issue, i.e., whether it is appropriate to grant visitation rights to an item of personal property, was not resolved. (Mike Frisch)
An attorney (by the name of True) was suspended for three months by the Maine Supreme Judicial Court, with the suspension stayed in favor of probation. The attorney had overbilled and made false billing statements to the clients (an estate and two beneficiaries) in a transaction involving the sale of 54,000 acres of timberland valued at $25 million. Other charges relating to the operation of his escrow account and conflicts of interest were dismissed with a caution . The court appears to have given considerable weight to the fact that the attorney had self-reported the misconduct to his firm and, in turn, to Bar Counsel. (Mike Frisch)
Long Time Coming
An attorney who had been disbarred in Illinois in 1997 failed to report the order to Kansas, where he continued to register as an inactive lawyer. The attorney had been convicted of the following:
...the respondent was convicted by a jury in federal district court in Illinois of conspiracy to commit income tax fraud. Highly summarized, the conviction was based on evidence that the respondent conspired with a client to hide over $700,000 of the client's income from the IRS over a period of years. The client forwarded his business income to the respondent, who hid it in a trust account. The respondent regularly withdrew cash from the account and gave the money to the client as well as made purchases for the client. The 7th Circuit opinion provides extensive details as to the respondent's deep involvement in the criminal activity. The final hearing report herein contains a lengthy cite from the opinion. United States v. Minneman, 143 F.3d 274, 277 (7th Cir. 1998). The respondent was sentenced to 30 months in prison and was ordered to pay restitution in the amount of $25,000. The respondent appealed his conviction, and the Seventh Circuit affirmed his conviction in 1998.
The attorney admitted that he "probably" should have advised the Kansas Administrator of his conviction and disbarment rather than going on inactive status. (Mike Frisch)
December 7, 2008
Beyond IRAC: Law School Exam Taking Tips
Posted by Jeff Lipshaw
It's that time of year when law school professors (including me) procrastinate and whine about grading, even though it's one of the few burdens that fall upon us in our privileged lives. I thought I would procrastinate in a useful way as I make my way through another round of bluebooks. Here are some tips that go beyond the old IRAC/TREAC saws (even though thar's truth in them thar saws!):
1. When the professor tells you how much each question is worth, take it seriously! In particular, there is a tendency to devote disproportionately too much time to small questions at the beginning, sort of like going out too fast in the first mile of a 10K race. For example, I always assign 180 points to my three hour exams, so that the points roughly equal the amount of time to be devoted. If the first contracts law question has only 10 points assigned, it's unlikely the professor has in mind that you write the history of consideration law since the days of assumpsit - take a minute to figure out what the most obvious point of the question is, and write for 10, not 30, minutes on it.
2. When the professor asks you to consider the claims plaintiff may make against a list of potential defendants, put yourself in the shoes of the the plaintiff, and again, start with the most obvious and work your way to the more subtle. The reason is that you pick up more issues this way. What I see a lot is students picking up on the most obvious issue that springs from the facts, say, a piercing the corporate veil issue to get to the shareholders, jump right to it and forget to discuss what claims the plaintiff has against the corporation itself, thus missing a chunk of possible points. Again, put yourself in the position of the plaintiff. Who do I sue first most obviously? Where are the issues in that? Then who else do I go after?
3. Don't try to be funny. Trust me. Even though my class is one-part stand-up comedy to two parts substance, I get no comic relief from witticisms (even your repeating my own) in the exam. It doesn't hurt you; it just wastes your valuable time.
4. Organize, organize, organize. You wouldn't believe the advantage that comes from having the issues separated by paragraph headings or outline notation. Chances are that the professor has a sample answer or outline split up into issues. Even you don't write your answer in the same order, having the issues split out lets us see clearly what you got and what you didn't. (This, of course, assumes you have something relevant to say. They say in practice: when you have the law, argue the law; when you have the facts, let them speak, and when you have neither, pound on the table. The exam analog would be: (1) when you know the material, show it; (2) if you have style, use it; and (3) if you have neither, puke all over the bluebook.)
Where I notice this particularly is in big "issue-spotter" questions with complex facts in the second half of the exam, when students are already tired. This is where you really want to suck it up and resist your impulse to blow chunks all over the page. Instead, take a deep breath. Slow down for a couple minutes and write an outline of the answer in the margin before digging in.
5. For God's sake, if you have terrible handwriting, invest in a Mavis Beacon typing course. The reality is that grading is very much art surrounded by a patina of science. By and large, a couple points on the exam here and there won't make a big difference. I feel very, very confident that my exams create a representative continuum. But there are arbitrary calls at the margins, particularly when you have to turn numerical scores into letter grades. Why let that go against you because the professor got frustrated trying to make sense of a test that looks like Linear A or Hammurabi's Code in the original cuneiform? (To be clear, I have no prejudice against handwritten exams; I have given just as many As on handwritten as typed and I've seen typed exams that look like the old "12 monkeys will eventually type the Encyclopaedia Brittanica" story. But it's far more common to have unintelligible handwriting than unintelligible typing.)
Well, back to the salt mine.
P.S.: If it makes any of my students feel better, I have had the recurring dream every night this week in which it is now the end of the semester, the exam is coming up, and I realize that I have never prepared for or gone to the advanced math class that meets on Mondays at 10:00 a.m.
P.P.S.: Question for ABA Journal - Is this an example of slipping off topic?