February 26, 2008
More Meaningless Super Awards
Posted by Jeff Lipshaw
Following up on my searing expose of the meaninglessness of "Super Awards," and those who alternatively (a) care about them because they think they signify achievement, or (b) care about them because they think anybody else thinks they signify achievement, it occurred to me that I have also received the award shown at left, albeit for managing to show up at the synagogue every Sunday night in the fall of 1999 for my offering to high school students on "Faith and Reason." I offer up this final definitive word on Super Awards, which really brings to the subject all the dignity and respect it deserves:
Wizard: Why, anybody can have a brain. That's a very mediocre commodity. Every pusillanimous creature that crawls on the earth, or slinks through slimy seas has a brain! Back where I come from we have universities - seats of great learning - where men go to become great thinkers. And when they come out, they think deep thoughts, and with no more brains than you have. But - they have one thing you haven't got - a diploma! Therefore, by virtue of the authority vested in me by the Universita Committeeatum E Pluribus Unum, I hereby confer upon you the honorary degree of Th.D.
Wizard: Yeah - that - that's Dr. of Thinkology .
Scarecrow: The sum of the square roots of any two sides of an isosceles triangle is equal to the square root of the remaining side. Oh, joy! Rapture! I've got a brain! How can I ever thank you enough?
February 25, 2008
Two people who had enrolled in, completed, graduated and received diplomas from a massage therapy program "were unable to pass the [Mississippi] state certification examination." They sued the college that had provided the program and "raised several causes of action centered around the prospect of 'educational malpractice.' " The circuit court denied the college's motion to compel arbitration "because [the college] participated in the underlying litgation." The Mississippi Supreme Court reversed and remanded, finding no waiver and directing the court below to "resolve whether the arbitration language at issue is enforceable."
Any thoughts on the viability of such a claim by a graduated student who fails a certification exam? (Mike Frisch)
Update: George Clooney Supports Barack Obama
He gave $2600, according to the FundRace2008 search engine, on which I posted here. But Michael Clayton of Montana gave $500 to John Edwards. Bob Barnes (of Mississippi) gave the same to Mike Huckabee, likely trying not to be beaten as a washed up CIA spy again. Danny Ocean gave nothing despite his Vegas millions (same with Billy Tyne, likely because he is still busy with that perfect storm). Various Doug Ross donors, none of them former ER doctors, gave to Rudy, Hillary, Ron Paul, and McCain.
Unrelated (particularly unrelated since Clooney's film was not awarded best picture last night), here is a site, Oscarology, that accurately describes your life and personality based on the best picture winner from the year you were born. I am a Ben-Hur for sure. Seems as viable and descriptively rich as less sophisticated methods of astrology.
Vigorous Advocacy Or Contempt?
A Georgia attorney represented a minor in a series of delinquency proceedings. She "repeatedly challenged the trial court's rulings upholding the prosecutor's hearsay objections to questions [she] posed regarding the contents of statements the alleged shooter [not the client] made to police." After the final hearing, she was cited for eight instances of alleged contempt "including inappropriate facial expressions, disrespectful tone of voice, and improper statements." The trial judge recused himself and another judge sustained two instances of contempt. Astoundingly, the attorney was sentenced to 30 days in jail.
The Georgia Supreme Court vacated the contempt and remanded the case. The court holds that contempt requires two elements. First, the conduct "either actually interfered with or posed an imminent threat of interfering with the administration of justice." Second, "the attorney knew or should have known that the statements and attendant conduct exceeded the outermost bounds of permissible advocacy." The court sets out a series of non-exhaustive factors to apply but notes that "doubts should be resolved in favor of vigorous advocacy." Judges "must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice."
30 days in jail? (Mike Frisch)
Two Strikes And Out
The Georgia Supreme Court disbarred an attorney who had defaulted on charges of misconduct by failing to file a Notice of Rejection. The attorney had previously been suspended for six months "with substantial conditions on reinstatement" but never became a member in good standing due to the failure to pay bar dues and take CLE. In this case, the attorney entered her appearence in a case before a court where she was not admitted without seeking pro hac vice admission. Her pleadings were stricken, including a response to summary judgment, which the court granted against her client. She thereafter failed to communicate with the client and did not return the file. (Mike Frisch)
Settlement Term Not Binding On Insurer
A lawyer who was sued for legal malpractice arising out of his failure to observe the statute of limitations was defended by his insurer but also retained seperate counsel. He filed a third-party bad faith claim against the insurer that was stayed pending the outcome of the malpractice case. During settlement negotiations in the malpractice action, the insurer agreed to pay policy limits of $500,000. There was a further agreement that the lawyer would confess judgment of $1.5 million but that the plaintiffs would agree not to execute on the confessed judgment in exchange for 1/3 of any recovery in the bad faith claim. The insurer declined to agree to that aspect of the settlement as well as a waiver of attorney-client privilege; the insurer paid the policy limits.
The plaintiffs sought to compel the full term of the settlement agreement against the insurer, who was not allowed to participate in the hearing on the motion. The court entered an order granting the motion but recognizing the insurer's right to object to the admissibility of the confessed judgment. On appeal, the West Virginia Supreme Court of Appeals held that the insurer "was not permitted to participate in the settlement enforcement action and thus cannot be deemed to have had a full and fair opportunity to litigate the issue." The consent judgment is not binding on the insurer. Further, the waiver of privilege is not effective against the insurer. The matter was remanded on the issue of attorney fees.
There is a concurring opinion pointing out that the remand "as moulded" makes no determination with respect to the reasonableness of the fees. (Mike Frisch)
Confessions of a Super Lawyer
Posted by Jeff Lipshaw
Over at Legal Ethics Forum, David Hricik has a link to an update on one of the great social issue legal proceedings of our time, right up there with Arlen Specter's investigation into taping of pro football practices: the New Jersey proceeding on whether advertising that you are a "Super Lawyer" is a deceptive and misleading practice.
I admit I'm biased, because for a short time in my life, I was voted by my peers, whoever the hell they were, as one of Indiana's Super Lawyers, and I have the certificate to prove it (see left). It didn't do me a whole lot of good, because I was the general counsel of a company, and wasn't looking for clients. In fact, the other way around. I think I got nominated because lawyers around Indianapolis were looking for business. Now there's a question worth investigating. Is it a violation of the ethical strictures to solicit business from a company by nominating its general counsel as a Super Lawyer? Does it make a difference if you don't really believe the general counsel is a Super Lawyer?
Here are some other more troubling questions. For some reason, I stopped being a Super Lawyer after 2004. This may have something to do with the fact that I didn't have any business to award after 2004. If I were to advertise myself as a Super Lawyer, would I have to say that I used to be a Super Lawyer, but I'm not one anymore? Or would that be self-evident from the fact that I'm now a law professor? The article to which Professor Hricik links says: "The Federal Trade Commission weighed in last year with an amicus brief saying the ads weren't deceptive and that the prohibition restricts the flow of information to consumers. The FTC said the court could solve the problem simply by requiring disclaimers." I assume, in my case, the maxim "those who can, do; those who can't, teach" would obviate even the need for a disclaimer.