February 20, 2008
Also not a legal profession case, but of possible interest is a decision the other day from the Connecticut Supreme Court. Two neighbors are both cat owners. One of the cats (described as "dirty, scruffy looking, ragged and in apparent pain") apparently was well known for roaming the neighborhood and starting fights with other cats. The cat had never attacked a person.
One neighbor (who we will call the plaintiff) had her cat outside when the other cat attacked. Plaintiff attempted to intervene and was scratched and bitten on her hand. She sued. There was evidence that defendant let her cat run free because the cat was doing damage to the interior of her house. Summary judgment was granted to defendant by the trial court, but was reversed here. There was sufficient evidence that the defendant was aware of the aggressive and dangerous tendencies of her cat to defeat judgment on the pleadings. (Mike Frisch)
February 19, 2008
No Duty To Defend Or Indemnify
A lawyer who had borrowed sums of money from husband and wife clients under false pretenses and either used the loan proceeds to gamble or pay off his gambling debts committed suicide. The clients thereafter sued his estate and law firm (which had been formed after the course of conduct had begun) and sought to require the law firm's insurer to defend the case. A recent decision of the United States District Court for the Middle District of Pennsylvania concluded that the insurer was not obligated to either defend the actions or indemnify the losses. Thanks to the web page of the Pennsylvania Bar Disciplinary Board for alerting us to the decision. (Mike Frisch)
All the Justice You Can Afford
A defendant charged with child abuse resulting in great bodily harm was determined to be indigent and had counsel appointed to represent him. The family was able to scrape together sufficient funds to hire counsel but not a defense expert. The matter was brought to the attention of the trial court, who would not permit retained counsel to withdraw and would not authorize funds to pay an expert. The New Mexico Supreme Court reversed the conviction on grounds of ineffective assistance of counsel:
"This is not a case where the district court was simply a passive witness to attorney incompetence. Rather, it is a case where the court, interpreting the law as it then existed, felt compelled to deny counsel access to the necessary funding and therefore to become ineffective. Despite counsel's indications that his client could not pay for any experts and that he would be rendering ineffective assistance if he went to trial without the assistance of such experts or the ability to interview the State's experts, the court refused to allow counsel to withdraw. Thus, counsel was placed in an untenable position: refuse to proceed without an order of withdrawal and risk being held in contempt, or proceed without necessary experts. This is not a choice any effective counsel should have to make. A presumption of prejudice most certainly applies when counsel's potential ineffectiveness is expressly brought to the attention of the district court and is occasioned by the rulings of the court itself." (Mike Frisch)
"Mean-Spirited, Insensitive Jurist"
The New York State Commission on Judicial Conduct removed from office a county family court judge for violating the fundamental rights of litigants in five matters. Five litigants were sentenced to jail terms, and at least three served unlawful jail terms of several months, as a result of the misconduct. The commission concludes:
"The record in its totality shows a judge who not only callously disregarded the rights of litigants, but who continued to defend his practices after three writs of habeas corpus were issued, who changed his procedures only reluctantly after sharp criticism by the Appellate Division, and whose conduct still suggests an insensitivity to the importance of ensuring that every litigant is accorded all the protections provided by law. Significantly, respondent’s press release in response to the appellate decision in Foote declared that in the future he will simply issue written confirmations of a support magistrate’s findings rather than provide an opportunity for the parties to personally appear, as he had previously done. It was at such appearances that Ms. Foote and Ms. Smith had asked for assigned counsel. Respondent’s press release also stated that while he had changed his policy on assigning counsel in accordance with the appellate criticism, his new policy will be more costly and will also mean that 'parties seeking assigned lawyers will be less encouraged to be responsible.' That language is consistent with the mean-spirited, insensitive jurist depicted in this record who is more concerned with fiscal matters than with protecting the basic rights of every litigant." (Mike Frisch)
Confederate Flag Returned To State
While not a legal profession case, an unpublished decision issued by the North Carolina Court of Appeals may be of interest to history fans. The issue relates to a battle flag of the 18th North Carolina regiment, captured at Petersburg on April 2, 1865. The soldier who captured the flag was awarded the Medal of Honor for the action. The flag was returned to North Carolina by President Grover Cleveland and remained in the Hall of History "until at least 1953." Respondent in the proceedings "purchased the flag for approximately $10,000 around 1970 after seeing it advertised for sale in a national publication, The Shotgun News." The state brought this action as a Return of Public Records proceeding and prevailed notwithstanding the claim that they were aware of respondent's possession of the flag since at least 1975. The state "met its burden of proof of overcoming the presumption that State officials deaccessioned the flag as provided by law."
Regarding respondent's right to compensation:
" In ruling against Respondent as we have, we are cognizant that, on the facts before us, Respondent is deprived of a significant property interest. Nevertheless, [t]he public is not to lose its rights through loss, theft or the unexplained removal of  public records from the custody of the [State], nor because one of its citizens purchased the [records] in good faith, because it was his duty, as much as that of every other citizen, to protect the State in its rights." Only the Legislature may authorize compensation for the loss. (Mike Frisch)
Breach Of Duty
An attorney who had engaged in ethics violations in several matters had his law license annulled by the West Virginia Supreme Court of Appeals. While the attorney had been addicted to OxyContin for two or three years, the hearing panel subcommittee concluded that evidence "does not establish that chemical dependency caused respondent's misconduct." He also must pay restitution to one of his former clients and, if reinstated, must participate in a program and be supervised for two years.
The attorney's name is William H. Duty. (Mike Frisch)
Judge Disbarred For Misappropriation While In Practice
A attorney who had practiced law for over 30 years prior to his election as a district court judge in 2004 was disbarred by the North Carolina Court of Appeals. In 2001, he was retained by a 69 year-old client who suffered from dementia. She wished to safeguard property that she owned and he deposited her funds "in a new personal account in his sole name" and had her deed over real property to himself. Shortly thereater, the client was adjudicated as incompetent and her nephew was appointed as her guardian. He delayed in the transfer of funds to the guardian and falsely claimed to have paid $48,000 for the real property.
The Court held:
"by depositing the entrusted funds of Ms. Sweet into his own personal checking account, by writing checks from this account to himself and others, by taking cash from this account, and by failing to return portions of Ms. Sweet's funds to the rightful owner, Defendant misappropriated Ms. Sweet's funds that had been entrusted to him in a fiduciary capacity to his own use, and thus engaged in criminal acts reflecting on his honesty, trustworthiness, or fitness as a lawyer in violation of Rule 8.4(b), engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c) and prejudiced or damaged his client during the course of the professional relationship in violation of Rule 8.4(g)."
As to sanction, the court rejected the suggestion that the client had been fully repaid and concluded that the Disciplinary Hearing Commission "properly weighed the mitigating and aggravating factors before imposing discipline." Disbarment was the appropriate sanction. (Mike Frisch)
Well, At Least the Clinton Camp Didn't Call Obama a "Shameless Extrovert" and an "Acknowledged Thespian"
Posted by Jeff Lipshaw
Reading the accounts this weekend of the Clinton camp's allegations that Obama is a "plagiarist" called to mind some of the nastier accusations (whether real or hoaxed) in past political campaigns. I learned this morning that George Smathers in fact did not accuse Claude Pepper of being a "shameless extrovert," a "thespian" and a lifelong celibate to backwoods Floridians in that infamous Democratic senatorial primary (it was a hoax made up by a reporter). But there's little question Richard Nixon smeared Helen Gahagan Douglas (left, as a star in 1920's Hollywood) as a Communist "fellow traveler" in his first run for Congress in 1948.
I won't get into legalisms whether two friends, sharing a common speech writer, using the same relatively innocuous speech lines about "words" can be accused of "plagiarism," which at its core is the false claim or implication of original authorship. Joe Biden had a real plagiarism issue in his past, which surfaced in connection with his lifting speech lines from Neil Kinnock, but recall that Michael Dukakis ended up firing campaign staff over their involvement in the "leak."
No, the question to Senator Clinton is "why?" Here's a theory. In Law as Rationalization, 37 U. Tol. L. Rev. 959, 969 (2006), I argued that it does not take much self-deception about one's ends to move from ethical debate to legal argument to rationalization, and cited the Bernard Nussbaum's advice to the Office of the First Lady as a prime example. If one's end is winning, it doesn't take much rationalization to get to a decision that one's campaign is in enough trouble to resort to "Pink Lady" arguments.
I think Hillary Clinton is eminently qualified to be the next President. This stuff starts from the top, and it's what bothers me about her.
February 18, 2008
Another Probation Failure
The Louisiana Supreme Court revoked a probationary sanction in a matter involving an attorney who was granted probation initially because the court had concluded that the underlying misconduct was due to the lawyer's inexperience. The lawyer had failed to complete CLE requirements imposed as a condition of probation. The court had extended the requirements as a result of the disruption caused by Hurricane Katrina. The lawyer had exceeded the permissible number of hours that can be satisfied through "on-line" continuing legal education. (Mike Frisch)
We reported an order of the Minnesota Supreme Court in a February 7 blog post involving an attorney who had engaged in unauthorized practice for 20 years. HowAppealing now updates the situation by linking to an article in the Minneapolis Star Tribune (registration required) that reports that the attorney in question was an Assistant Hennepin County Attorney who was spending those years prosecuting criminal cases. There appears to be criticism of the court's sanction (reprimand with two years unsupervised probation) as unduly lenient under the circumstances. (Mike Frisch)
February 17, 2008
Where There's A Will
An attorney who had prepared a will for a client that included a substantial bequest to him was reprimanded and suspended for 30 days by the Maine Supreme Judicial Court. Professed ignorance of the ethical prohibition was no defense. The court found that, save for the will, the conduct of the attorney had been exemplary in his concern for and interaction with the client. This client care was in highest ideals of the legal profession ("he basically met all her needs for sustenance and survival"), for a client described as "stubborn, irascible and occasionally mean-spirited." The will was executed at the time when the client's mental and physical health was failing.
The attorney's share of the estate was $325,000, which he had used for tuition and to pay off his mortgage. He eventually repaid that amount to the estate. One interesting aspect of the sanction is that the attorney is required, for a one-year period, to provide bar counsel with information about all clients over the age of 60. (Mike Frisch)