February 9, 2008
Follow-Up to NY Times Column on Judges and Campaign Contributions
Posted by Alan Childress
We posted here on the NY Times column about judicial ethics, which had reported a study by my colleague at Tulane, Vernon Palmer, on the effect of contributions on decisions. As a follow-up, here is what the legal blogosphere is saying about the article and study:
Grisham seems to have been prescient, since just this week results of an important study of the impact of private money were released. Tulane University law professor Vernon Valentine Palmer was dismayed that Louisiana Supreme Court justices don't recuse themselves from cases involving litigants who contributed to their campaigns.
Update: Also, I have linked a prior post Mike wrote on a Florida ethics opinion on campaigning judges, which links to an opinion raising many of the same issues. Here is an article, on the NY Times story, in the ABA Journal.
February 8, 2008
Kids Cannot Wait: March 4 Is National Grammar Day!
Posted by Alan Childress
Get ready for another National Grammar Day. Don't you just hate how we celebrate it earlier and earlier every year? The malls with all their smug decorations, already up by Lincoln's Birthday! -- obviously trying to expand the retail shopping window just to maximize annual sales. Crass re-gifting after. Drinking and carousing on National Grammar Eve, and leaving out the chefs at Burger King who have to work that Eve while the rest of us party. And my kids with their endless which lists of presents.
It seems as if we have commercialized NGD so much that noone knows it's true meaning any more. At least this year March 4 falls on a Tuesday, to potentially expand the long weekend alot. Irregardless, I wonder if it's sponsors, including Microsoft, has figured out that national modifies grammar instead of day, even though I think they mean it is a national day to promote grammar rather than a day to promote a more nationally uniform grammar. Am I just being pedantistic?
Hat tip to the new legal writer blog, which intends to "party
like it’s as if it were 1999."
Regulation Of Doctors
The Missouri Supreme Court issued an interesting opinion in a case where a medical doctor had sought injunctive relief from the suspension of his hospital privileges. The court held that a hospital is obligated to comply with its by-laws, but that there is no judicial review of hospital staffing decisions:
"Finally, and despite this Court's holding, it must be emphasized that the purpose of the regulation is to implement a system of medical staff peer review, rather than judicial oversight, and it is clear that final authority to make staffing decisions is securely vested in the hospital's governing body with advice from the medical staff. This is so because the notion underlying the internal governance structure required by the regulatory scheme is that medical professionals are best qualified to police themselves. 19 CSR 30-20.021(2)(C)12 ("The medical staff as a body or through committee shall review and evaluate the quality of clinical practice of the medical staff in the hospital in accordance with the medical staff's peer review function and performance improvement plan and activities."). This Court, then, will not impose judicial review on the merits of a hospital's staffing decisions, but will act only to ensure substantial compliance with the hospital's bylaws. In this case, a cause of action in equity will lie for that purpose, but the matter of substantial compliance is a factual dispute that can only be determined on remand."
No Benefit Of The Doubt
The Montana Supreme Court rejected the sanction recommendation of the court's Commission on Practice in a case involving allegations of unethical billing practices during the course of the attorney's handling of a conservatorship. The court had issued (and provides citations to) two prior opinions that provide greater detail about the course of conduct. The court rejected a host of mitigating factors found by the commission and declined to accept the commission's "benefit of the doubt" finding that the lawyer had earned the charged fees. The court found such a benefit could not be sustained because his "billing records, the various fee agreements and [his] shifting explanations for his accounting practices raise more questions than provide answers."
The court's discussion of the rejected "mitigating factors" is particularly interesting. The commission treated as mitigation that the matter was initiated by opposing counsel. Apparently, the commission questioned opposing counsel's motives and suggested that he sought a tactical advantage. The court would have none of it: counsel had "little choice in the face of this avalanche of avarice" and should be commended for compliance with the duty to report. The "mitigating factor" that the attendant adverse publicity had destroyed the lawyer's practice was like killing your parents and asking for mitigation as a "poor orphan child."
The court imposed a 60 day suspension along with a public censure. The commission had recommended just the censure. (Mike Frisch)
Struck From The Rolls
The New York Appellate Division for the First Judicial Department found that an attorney automatically ceased to be eligible to practice law as a result of his pleas and convictions to a series of criminal offenses and struck the name of the attorney from the rolls. The offenses were described as follows:
"On October 2, 2007, respondent pleaded guilty in Supreme Court, New York County, to rape in the second degree in violation of Penal Law § 130.30(1), a class D felony, and to patronizing a prostitute in the third degree in violation of Penal Law § 230.04, a class A misdemeanor, in full satisfaction of Indictment No. 0861-2006. On that same day, respondent also pleaded guilty to rape in the third degree in violation of Penal Law § 130.25(2), a class E felony, in full satisfaction of Indictment No. 1748-2006. The charges to which respondent pled guilty alleged that he engaged in sexual intercourse with a person who was less than 15 years old and a person who was less than 17 years old, and that he patronized a prostitute who was less than 17 years old. On October 11, 2007, respondent was sentenced to a term of imprisonment of one year on each charge, to be served concurrently, and was required to register as a sex offender." (Mike Frisch)
February 7, 2008
Lien On Me
The New York Appellate Division for the Second Judicial Department decided not one but two cases involving attorney's liens. In one matter, the court held that successor counsel in a personal-injury claim failed to prove that original counsel had been discharged for cause. The court overruled the Supreme Court determination on this point and awarded 40% of the fee to the first lawyer. The second decision reached a like result, finding the discharge to be without cause and awarding fees for the work done prior to discharge. (Mike Frisch)
Boston Law Clerk Scam Gets New Blogging Attention
The disbarment of two renowned Massachusetts lawyers who scammed a judge's law clerk into a sham job interview and attempted to squeeze the clerk into spilling dirt on the judge -- which Mike Frisch exposed and explored on this blog (here, here, and here) and in his Georgetown ethics journal article -- has found its way into such mainstream law blogging sites as the 'ABA Journal online' and the 'WSJ Law Blog.' Those sites have direct links to the new opinions. Thanks, Mike, for staying on top of this fascinating story, and for giving it depth, beyond the headlines, in your article. [Alan Childress]
For Lincoln's Birthday Next Tuesday: Kentucky's Lincoln and Brandeis Speak to Young Lawyers
Posted by Alan Childress
Everyone knows Abe Lincoln was born in Kentucky, but I had forgotten that Louis Brandeis was born there too. Here is a great old post from Kentucky lawyer-blogger Ben Cowgill, 'interviewing' them both about their advice to those entering the legal profession. It is nicely footnoted and thoughtful. It is called Old Wisdom for New Lawyers. One useful exchange:
Cowgill: But I seem to recall that you refused to take vacations as a young lawyer. Did you have a change of heart?
Brandeis: I soon learned that I could do twelve months' work in eleven months, but not in twelve.
Indiana Lawyer Suspended
An attorney who engaged in ethical misconduct in two matters was suspended for at least 180 days without automatic reinstatement by order of the Indiana Supreme Court. One matter was somewhat unusual in that the court found that the lawyer violated Rule 1.1 (competence) by filing and litigating a post-conviction claim for relief. The lack of competence was based on the poor quality of the legal services. Many jurisdictions might not find the violation because the lawyer did something, however inartfully.
The second charge involved the lawyer's rebuffed attempts to kiss a prospective client who had come in to discuss a possible divorce. The lawyer filed the divorce action and thereafter tried to persuade the client to pursue the divorce when the client had advised that she did not wish to proceed. He also "sent several unsolicited sexually explicit emails" to the client. The attorney denied the attempted kisses, admitted sending the emails and "stated he did this only after she implored him to do so because she was lonely and it would make her feel like a woman."
When the bar filed an emergency petition for interim suspension, the lawyer filed a response that "contain[ed] dubious and unnecessarily explicit details of the client's personal life" and "demonstrated a willingness to lie under oath about his misconduct and to compound the distress he caused his client by attempting to shift the blame to her." Reinstatement will not be ordered until the lawyer shows "genuine remorse" and a "proper understanding of and attitude towards" the ethical standards of the profession. (Mike Frisch)
A 20 Year Oversight
A Minnesota attorney who "engaged in the unauthorized practice of law for more than 20 years while on restricted status for failing to submit the affidavits of continuing legal education (CLE) compliance..." agreed to a public reprimand and two years of unsupervised probation. The Minnesota Supreme Court accepted the proposed disposition and ordered the attorney to pay $900 in costs. Although unstated in the order, I assume that the attorney will be required to comply with CLE reporting obligations. (Mike Frisch)
The Illinois ARDC has filed an amended complaint alleging misconduct on the part of an attorney admitted in 2003. The attorney represented a father who had lost custody and control of medical decisions for a minor son. The father retained the attorney to attempt to enjoin a scheduled tonsillectomy. The effort had failed in Illinois. It is alleged that on the day of an adverse decision in the Illinois litigation, the attorney filed an action in Missouri "seeking monetary damages against the medical providers who were scheduled to perform the tonsillectomy" and sought a TRO. It is further alleged that the attorney failed to disclose the adverse Illinois decision and made false representations to a Missouri judge. Finally, the attorney is alleged to have made false statements in the disciplinary proceedings. (Mike Frisch)
Suspension Insufficient For Dishonest Prosecutor?
An Assistant District Attorney in Queens County, New York was suspended In New York in 2002. He had "failed to produce to the defense a report concerning a witness believed to have exculpatory information in a homicide case...Faced with a direct inquiry from the court before trial regarding the witness's' whereabouts, [the prosecutor] falsely stated that he did not know, despite having previously located and met with the witness at her place of employment the previous week. [He] failed to correct this misinformation at trial. As a result, the case had to be retried." The New York Second Department imposed a three-year suspension with fitness.
The sanction did not sit well with the panel that considered reciprocal discipline in the District of Columbia. Noting that Bar Counsel and the Board on Professional Responsibility favored identical discipline, the court reluctantly imposed reciprocal discipline with concurring and dissenting opinions. Senior Judge Nebeker's dissent: "As a public prosecutor, this man fraudulently and contemptuously violated his constitutional duty by failing to disclose Brady material he well knew he possessed and by lying to a trial judge in open court about it. In considering the appropriate discipline for such conduct, we must take into account the need to ensure and enhance public confidence in the prosecution of criminal offenses. In my view, a three-year suspension does not go far enough in that regard. I would, therefore, refer this matter back to disciplinary authorities for proceedings leading to possible disbarment." (Mike Frisch)
February 6, 2008
Visiting Professorship at Case Western in Professional Responsibility
Case Western Reserve University School of Law in Cleveland, Ohio anticipates hiring one or two visiting professors to teach Professional Responsibility and other subjects during the Fall or Spring semester of the 2008-09 academic year. Interested persons should contact Sharona Hoffman, Senior Associate Dean for Academic Affairs, Professor of Law, Professor of Bioethics, and Co-Director, Law-Medicine Center, Case Western Reserve University School of Law, 11075 East Blvd., Cleveland, OH 44106, (216) 368-3860.
Reform Group "HALT" Rates D.C. Bar as Best in Resolving Fee Disputes
H.A.L.T.'s Breaking News section headlines this: D.C. Leads Nation on Solving Lawyer-Client Fee Disputes. The full story reports on all 50 states and D.C., including an informative U.S. map with color-coding for grades on bar arbitration. The organization says all jurisdictions can and should improve the procedures and rules for resolving attorney-client fee disputes, and none receives higher than a grade of B. Here is the D.C. bar report card. Vermont gets an F, as do West Virginia and New Hampshire. [Alan Childress]
Occupational Hazard: Making Sense Out of Stupid Courtroom Questions
Posted by Alan Childress
I like lawyer jokes as much as the next guy, as long as the next guy telling them is not John McCain. With all the great lawyer jokes on the internet (including this site, and posts here and here on our blog), he has to pick the old lawyer:catfish analogy? And tell it with the most wooden timing possible? I much preferred his really funny and inappropriate Alzheimer's joke in 1999 (that gave him authenticity, said The Guardian), one that he was later forced to apologize for: the great thing about it is that you get to hide your own Easter eggs. I am not sure I want to live in a country where lawyering is more darkly ironic than dementia.
But lawyer jokes are so popular because there is no real union to stand up to them. It is not like we can tell stupid client jokes and people will laugh, though in fact we all have lots of stupid clients and witnesses who could be the subject of much funpoking. There is no large audience for that, especially if the general public identifies with clients and witnesses and thinks they are not so stupid.
Which is why I was not as amused as everyone else at the Super Bowl party when one of my brothers whipped out something he printed off the internet, full of "stupid lawyer questions" heard in courtroom situations. His print-out seemed to be much the same as this site I found later. I was surprised at the level of reaction that everyone else was showing. They thought these were really funny. And anytime a new person would join the party, Dad would read the same ones over again, then the new guy would really laugh too. Confounding.
I should have just laughed along, but instead I fell victim to an occupational hazard: the need to explain how several of the questions the lawyers had asked, though inartfully framed, were necessary to establish for the record -- out of the witness's mouth and not just by assumption or lawyer argument -- a fact that is an essential element of a claim or defense (like a death for a homicide case). OK, I admit I actually said "or affirmative defense" to sound more legalistic and mystifying, hoping my credibility would stop the hilarity in its tracks. It did not, but it did redirect the hilarity. The net result is that the object of their derision was no longer those pitiable (and, I insist, careful and detail-driven) lawyers quoted in the print-out. Instead now I was the object of universal group ridicule.
Last fall, two of the professional librarians at our school came to a faculty meeting and delivered their report on a candidate for the head librarian's position. Every time they spoke, the rest of the faculty had to ask them to speak up. Even after, they still spoke in such hushed tones that few of us could hear them. Like calling a golf match, I guess: that is the occupational hazard of librarians.
So if you are a lawyer, learn my lesson and resist the occupational hazard of trying to justify to laypersons the meaning of legal rules and actors. Just agree that the law is an ass, and you will be fine. If you are, worse, a law professor, here are my lightbulb jokes for this profession, which will only make sense to the academic types.
The Massachusetts Supreme Judicial Court today ordered the disbarment of Gary Crossen in the high-profile case where a sham interview was arranged of a judge's former law clerk in order to obtain evidence to overturn the judge's decision and subsequent threats to the clerk if favorable evidence was not provided. Concerning the misconduct, the court finds:
"The record leaves no doubt that Crossen was a willing participant, and at times a driving force, in a web of false, deceptive, and threatening behavior designed to impugn the integrity of a sitting judge in order to obtain a result favorable to his clients. The scope of this misconduct has scant parallel in the disciplinary proceedings of this Commonwealth. This was not conduct on the uncertain border between zealous advocacy and dishonorable tactics, a border about which reasonable minds may differ. It struck at the heart of the lawyer's professional obligations of good faith and honesty. Crossen's conduct was so egregious and extensive that no reasonable attorney could have believed it comported with the solemn ethical obligations of attorneys. It caused harm to the orderly administration of justice, as well as to the law clerk, the judge, and their families, and it harmed public confidence in the legal profession."
The court rejected a variety of contentions and found that disbarment was the appropriate sanction:
"Coaching a witness to lie on the stand is one kind of egregious violation of professional ethics. Another is conduct of the kind perpetrated by Crossen, including attempting to pry through trickery and coercion into the confidential communications between the judge and a law clerk in an ongoing case; doing so at the behest of a client who was a dissatisfied litigant in the case for the purpose of removing the judge from that case and undoing her prior decisions; creating an alternative universe of deception to accomplish these aims; attempting to entrap a third party, the law clerk, who had absolutely nothing to do with creating or inciting the alleged prejudice of the judge; causing extreme distress in the lives of the wife of the law clerk and the judge's family, who had no relationship to the case or to Crossen's client; encouraging his client's pursuit of the judge, and more. Although it did not involve suborning perjury, Crossen's behavior, in its cumulative effect on the administration of justice and the public's perception of our judicial system and on the legal profession, was unarguably damaging.
That there is no blueprint in our prior cases for the facts of this proceeding should come as no surprise, reflecting the unusual scope of the misconduct. The sanction of disbarment we impose is appropriate to ensure that the law clerk episode (or anything like it) remains sui generis."
The court, in a seperate decision, also disbarred Kevin Curry, the attorney who put the plot into motion:
"Curry was not, as he suggests, a noble crusader seeking to root out judicial misconduct by engaging the law clerk in an interview that was a pretext. He had no factual basis for attacking Judge Lopez's integrity. Curry's ultimate goal was to obtain sworn statements from the law clerk, or his cooperation, in the effort to have Judge Lopez recused from the Demoulas litigation, and then have her prior decisions in the litigation overturned. This course of action showed a breathtaking lack of respect for the administration of justice in the Commonwealth, violating DR 1-102(A)(5). See Matter of Cobb, supra at 471, quoting In re Graham, 453 N.W.2d 313 (Minn.), cert. denied sub nom. Graham v. Wernz, 498 U.S. 820 (1990) ("[C]riticism impugning the integrity of judge or legal officer" merits discipline if it "adversely affects the administration of justice and adversely reflects on the accuser's capacity for sound judgment. An attorney who makes critical statements regarding judges and legal officers with reckless disregard as to their truth or falsity ... exhibits a lack of judgment that conflicts with his or her position as an officer of the legal system and a public citizen having special responsibility for the quality of justice" [quotations and citations omitted] )."
The link to the court web page is here. My article about the case (and prediction about the outcome)may be found in the Fall 2007 edition of the Georgetown Journal of Legal Ethics under the title "Zealousness Run Amok." (Mike Frisch)
An Unremarkable Proposition
The New Jersey Supreme Court issued an opinion today concerning "the ethical propriety of a real estate transaction that the inquirer believed was a fraudulent practice perpetrated on the ultimate investor." The New Jersey State Bar Association had sought review of an opinion and subsequent clarification by the Advisory Committee on Professional Ethics. The specific practice of concern involved contract amendments intended to increase the size of the mortgage that might deceive the lender as to the true market price of the house.
The court concluded that disclosed seller's concessions to amend the contract are not "in and of themselves, fraudulent or unethical...[t]he court is confident that attorneys in this state know that they cannot participate in deceptive transactions...[the ethics opinion] stands for the unremarkable proposition that fraudulent transactions by attorneys in connection with real estate closings will run afoul of the RPCs. With that in mind, lawyers versed in their ethical responsibilities have nothing to fear from Opinion 710." The advisory committee opinion is attached to the court's ruling. (Mike Frisch)
February 5, 2008
Law Firm Prevails In Litigation Against Former Associate
A law firm in Hawai'i terminated an associate attorney and filed a complaint with the Office of Disciplinary Counsel alleging that the associate had falsified time records. The attorney sued the law firm on a variety of grounds including violation of civil rights (pregnancy discrimination), breach of implied contract and intentional infliction of emotional distress. The trial jury found for the firm on all claims except the breach of implied contract and awarded over $200,000 in special damages on that claim. The trial court granted the firm post-trial judgment on the implied contract claim and appeals ensued.
The Hawai'i Supreme Court affirmed the judgment on behalf of the firm and granted attorneys' fees against the associate. The lengthy opinion addresses a wide array of evidentiary issues raised in the litigation. As to the fee award:
"Inasmuch as the trial court entered final judgment in favor of Goodsill[the firm], Goodsill was the prevailing party for purposes of attorneys' fees and costs. Finally, as to Kamaka's [the associate's]assertion that Goodsill's abusive tactics calls for a balancing of the equities, the trial court, in its order denying Kamaka's motion for fees and costs, stated that '[e]ach of the actions taken by [Goodsill], when considered in isolation, does not amount to bad faith litigation tactics or that [Goodsill] acted for reasons of harassment, delay or other improper purpose.' Having observed, first-hand, the conduct of the parties in this litigation that spanned several years, the trial court's assessment of the equities is the most credible and should not be disturbed, especially in light of this court's conclusion that Goodsill had not violated the circuit court's discovery orders and vacated the sanctions levied against Goodsill. Cf. Stanford Carr Dev. Corp., 111 Hawai‘i at 306, 141 P.3d at 479 (stating trial judge is expert himself or herself and knows as well as a legal expert what are reasonable attorneys' fees and may proceed upon its own knowledge of the value of the solicitor's services).
Based on the foregoing, we believe there is ample documentation in the record to explain and support the trial court's award of 364,154.25 in attorneys' fees pursuant to HRS § 607-14. Accordingly, we hold that the trial court did not abuse its discretion in granting Goodsill's motion for attorneys' fees.
The link to the case appears not to work. The case is Kamaka v. Goodsill Anderson Quinn & Stifel, decided on January 24, 2008.
No Message Left
The New York Appellate Division for the First Judicial Department issued an order immediately suspending an attorney who had allowed a client's personal injury claim to be dismissed for failure to respond to discovery demands. The client thereafter filed a disciplinary complaint and legal malpractice action against the lawyer. The lawyer failed to cooperate with the bar investigation ("No message could be left on respondent's answering machine since, according to the recorded message, '[t]here was no room...to record [a] message' " ) and had failed to pay the judgment entered in the malpractice case. The suspension will be in effect until the bar's case concludes and until further court order. (Mike Frisch)
Stressful Circumstances Insufficient To Establish Mitigation
It is difficult not to have some sympathy for a lawyer who was indefinitely suspended in Massachusetts based on "the report of a special hearing officer, who recommended that [the attorney] be indefinitely suspended for the serial, intentional misuse of the funds of three clients." According to a memorandum of the Board of Bar Overseers, the attorney had had a successful private practice,taught a variety of law school courses, and had a significant record of service to the bar. The attorney had offered evidence that the misconduct was committed while in a "fugue" state as a result of the following circumstances:
"The following is a chronological list of the personal difficulties and stressors the respondent experienced during the relevant time: (1) on June 17, 2003, while boarding a gambling boat, the respondent fell, shattering her tibia and severely injuring her knee, requiring extensive surgery; she returned home about a month later, requiring a home health aide for assistance; she had to live on the first floor of her house and was confined to a wheelchair for about a year; she had to take painkilling medication, including narcotics, for a substantial period of time; (2) on her return from the hospital in July 2003, she received a notice of foreclosure on her home; (3) that same month she also received notice of an action to ban her dogs from the city due to their barking and lack of care during her hospitalization; (4) in September 2003, after removal of some lymph nodes, the respondent was diagnosed with non-Hodgkin’s lymphoma; (5) in January 2004, the respondent received another notice of foreclosure; (6) around the same time, the respondent was advised that her ninety-seven year old mother, who had lived with her, would have to be placed in a nursing home due to the respondent’s inability to care for her; and (7) in February 2004, the respondent had knee replacement surgery."
The special hearing officer rejected the suggestion that the misuse of client funds was not intentional and found that the real cause of the misconduct was "long-standing financial problems..." that were exacerbated by a "history of gambling significant sums..." The officer also rejected expert testimony offered in mitigation of sanction. An aggravating factor was an earlier admonition "for borrowing money from a client during a trip to a gambling casino." (Mike Frisch)