Tuesday, June 30, 2009
The New York Appellate Division for the First Judicial Department declined the implement the Departmental Disciplinary Committee's proposal to convert a suspension for failure to cooperate with a disciplinary investigation into a disability suspension. Rather, the court continued the indefinite suspension until the lawyer is able to participate in the proceedings. The court's reasoning:
In support of its motion, the Committee avers that it had been advised by respondent's counsel that respondent, an 80-year old practitioner, has continued to deteriorate both physically and mentally and thus would not be capable of participating in the disciplinary proceeding. The Committee received a copy of a June 11, 2008 neuropsychologist's evaluation of respondent, as well as a letter from his treating physician. Collectively, these documents demonstrate that respondent suffers from cerebral vascular disease, and that his level of mental function has declined since entry of the order of suspension, as reflected in memory loss, cognitive impairment and significant depression, thus making it impossible for him to defend himself in the pending proceedings.
In issuing the prior order of suspension, we noted that " The Committee has presented clear, uncontested evidence of respondent's professional misconduct which immediately threatens the public interest. We further noted that "his failure to challenge the allegations that he engaged in professional misconduct by neglecting legal matters and failure to refund legal fees, except in one instance, constitutes uncontested evidence of professional misconduct. Additionally, his willful failure or refusal to pay money owed to a client, which debt is demonstrated by a judgment constitutes grounds for suspension.
While we are not unmindful of respondent's age and current physical and mental condition, the Committee has not submitted reasons nor precedent for its motion to vacate the prior order of suspension in toto.
This matter is factually indistinguishable from Matter of Fusco (18 AD3d 81 ). There, as here, the respondent was initially suspended from practice on the basis of uncontested evidence of professional misconduct, as well as failure to cooperate with the Committee's investigation. Subsequent to that order, the respondent submitted evidence of physical and mental incapacity and the Committee sought a further order suspending respondent on those grounds.
We granted the motion and vacated that portion of the prior order which dealt with respondent's lack of cooperation with the Committee's investigation, based upon the medical evidence submitted to the Committee.
There is no reason to depart from that precedent in this case. The evidence of respondent's professional misconduct is uncontested and, while the evidence before us explains his inability to defend himself at these proceedings, it does not explain nor controvert the findings of professional misconduct alleged herein. There is no basis to disturb the suspension based upon professional misconduct on the record before us.
I find this result rather harsh as the medical information indicates that this does not appear to be the type of disability that can be remedied. The public is as protected by a suspension based on disability as by an indefinite suspension. (Mike Frisch)
From the web page of the Virginia State Bar:
On June 8, 2009, a Virginia State Bar Fifth District, Section I, Subcommittee imposed a public reprimand with terms on [an attorney] for violating professional rules that govern responsibilities regarding nonlawyer assistants, professional independence of a lawyer, unauthorized practice of law, communication and advertising about a lawyer's services, and firm names and letterheads. The misconduct involved the management of [his] law office and his advertisements, which used the name and likeness of a disbarred attorney. This was an agreed disposition of misconduct charges.
An Arizona hearing officer rejected a number of ethics charges filed against an attorney by a former client and recommended an informal reprimand for failing to provide the client with a written retainer agreement. The rejected charges involved the following: that the attorney "went to a party and took multiple drags from [a] marijuana joint," that he had told the client he had once paid for a blow job, and that he had thrown a malfunctioning hand-held tape recorder in a pique or anger during a meeting with the client.
The hearing officer:
The squeaky wheel is not always entitled to be greased. In this case Complainant is the loudly squeaky wheel that caused the Arizona State Bar to file an ill-advised complaint, although to its credit the Bar first winnowed out the more flagrant of Complainant's accusations. Nonetheless, Complainant seems likely to emerge with what he was most after, escape from paying a legitimate substantial bill for legal services.
The hearing officer concluded that there was no evidence that the lawyer's performance was in any way impaired by the charged incidents and rejected the Bar's contention "that a lawyer's character flaws and weaknesses, independant of any effect on his actual practice of law, can be ethical violations simply because he or she is a lawyer." (Mike Frisch)
The New York Court of Appeals has reversed a criminal conviction of a defendant charged with the murder by strangulation of a 14 year old victim. The trial court had ordered the defendant to wear a "stun belt" restraint during the trial. The court here reversed the affirmance of the conviction by the Appellate Division, concluding that forcing a defendant to wear the belt absent any showing that he was a danger at trial that would justify the use of the belt.
A dissent would hold that the presumption of innocence was not implicated: "...defendant failed to show that the stun belt was visible to the jury or otherwise compromised the fundamental fairness of the trial; he never objected that the stun belt impaired his ability to communicate with his attorney or meaningfully participate in his defense. Since I therefore do not believe that the defendant has shown any actual prejudice, I would affirm his conviction." (Mike Frisch)
A South Carolina magistrate judge was sanctioned for misconduct relaing to fulfilling his CLE obligations. The South Carolina Supreme Court described the misconduct as follows:
In this judicial disciplinary case, respondent Magistrate Judge...admits altering a court order and a letter from the Commission on Continuing Legal Education and Specialization (hereinafter “CLE Commission”). The record supports the recommendation of the Commission on Judicial Conduct (hereinafter “the panel”), and we retroactively suspend respondent.
Respondent failed to comply with Rule 510, SCACR and report his CLE hours for 2006-07 timely. Therefore, this Court suspended respondent. Subsequently, respondent complied with Rule 510. Thus, the CLE Commission issued respondent a letter finding him in compliance and instructing him to contact this Court to be reinstated. This Court then reinstated respondent by court order, and the court order specifically stated the reinstatement was not retroactive.
Respondent then retook the bench. While conducting bond court, respondent was asked to submit evidence of his reinstatement to the county administrator. Respondent faxed copies of the CLE Commission’s letter finding him in compliance and this Court’s order reinstating respondent. The version of the letter and this Court’s order sent by respondent were altered. Specifically, respondent removed the references that his reinstatement was not retroactive. Respondent explains the alterations of these documents as an innocent attempt to obscure notes he made on the documents as he did not have time to obtain the originals. Respondent admits he failed to notify the county administrator of the papers’ alterations.
The magistrate has been on interim suspension since October 12, 2007 and the court held that the served suspension was sufficient under the circumstances as a sanction. (Mike Frisch)
Monday, June 29, 2009
The North Dakota Supreme Court imposed a suspension pending the disposition of disciplinary proceedings in a case where the lawyer has been charged with, but not convicted of, criminal charges. The court describes the charges:
The suspension was imposed pursuant to a provision that empowers the court to act in matters of substantial threat of irreparable harm to the public. (Mike Frisch)
The Louisiana Supreme Court agreed with a finding of its Judiciary Commission that a judge had violated the Code of Judicial Conduct but rejected the proposed public censure sanction because the "wrongdoing does not rise to the level of misconduct warranting the imposition of a disciplinary sanction." The judge sat in a high-volume drug court and had regularly ordered that defendants pay a fine for the benefit of the "I Care" drug program while serving on the program's advisory council. The fines totalled $83,550.00
The court states:
In making this decision, we rely on [his] unblemished record on the judicial bench. Moreover, any potential appearence of impropriety subject of these proceedings stems solely from his admirable personal and judicial efforts to improve his community through substance abuse prevention and education. While we in no way condone his actions and strongly caution him to refrain from similar judicial misjudgment in the future, we do not find his actions to rise to the level of sanctionable misconduct.
Posted by Jeff Lipshaw
An op-ed by Paul Lippe (no relation) at the Am Law Daily on what law schools ought to do to cure THE PROBLEM has gotten a fair amount of buzz in the blogosphere, including from our own Bill Henderson.
Here's my quick reaction:
1. The descriptions of Phases I to III (reading law; Langellian case method; "law and ...") seem accurate to me.
2. This statement strikes me as a relatively fair generalization:
Even in 1981, when I went to law school, the faculty generally held law firms in low regard, and clients were presumed unethical without the constant guidance of lawyers (when I spoke to a law school dean the other day, she immediately equated client with "Enron"). It's nuts for law school to be primarily about understanding appellate decision making and not at all about understanding clients.
This is particularly the case when discussing the politically-infused area of corporate governance. I still marvel at individuals in various institutions (academia, Congress, state governors, corporations) who have no compunction about calling the motives of other individuals in other institutions into question (i.e. conflicted, greedy, short-sighted, etc.) without stepping back and looking at their own. For example, I'm still not convinced that faculty governance has any moral superiority over corporate governance, and clearly Governor Sanford's recent escapade tarnishes the purity of the bully political pulpit. I'm willing to accept a middle ground, which is that none of us embodies an Archimedean moral fulcrum. Or to quote Robert Burns: "O wad som' pow'r the giftie gie us, to see oursels as ithers see us."
3. Mr. Lippe says:
-A much more empirical approach to practice, forcing much deeper inquiry, rather than just trotting out hypotheticals and issue-spotting--e.g., if choosing AAA arbitration is the right dispute resolution clause, do we know that a higher percentage of deals with no arbitration clause ended in a contentious dispute?
This statement strikes me as not fully thought out, but certainly an area in which inquiring minds ought to be engaged (I try to be, as evidenced in this recent piece about legal "cures" to social problems). First, I'm not sure we've fully probed the empirical foundations of statements of this sort enough to use them as the basis for advice. You have a rare form of cancer. Overall, the cure rate with the best treatment is 20%. We can at least make some fairly reliable predictions as a result of natural science, to get at real cause-and-effect. As a general matter, that's far more challenging when we draw social science conclusions. Second, the analogy to medicine highlights the issue. Is the information a helpful piece of data in deciding whether to take the treatment? My son, Matthew, starts med school in six weeks, with a beginning unit that touches on evidence-based medicine. My guess is that data is helpful, but not ultimately dispositive, in making forward-looking judgments about care.
WGRZ.com reports on a judicial misconduct matter:
Erie County District Attorney Frank Sedita says State Supreme Court Judge Joseph Makowski and local attorney Anne Adams conspired to try and make a DWI case against Adams go away. Last September, Makowski and Adams met for drinks at Shanghai Red's on the Buffalo waterfront. Afterwards, Adams was driving home through Hamburg, with Makowski following behind her, when Adams was spotted driving erratically and was pulled over by police. A breathalyzer test showed her blood alcohol level was more than twice the legal limit. Despite that, Makowski in attempt to cover up the case, submitted a sworn statement to a judge saying that Adams' driving had been fine. He also stated that she had had only two drinks. The following day, Adams, in her attempt to have the case against her dismissed, had her blood drawn. By then, it showed just a trace amount of alcohol in her system, but Adams then claimed in a statement to the court that the blood had been drawn the night of her arrest. Late Friday afternoon, Adams pled guilty to the DWI charge, as well another two charges related to her tampering with evidence (the blood test).
Erie County District Attorney Frank Sedita says State Supreme Court Judge Joseph Makowski and local attorney Anne Adams conspired to try and make a DWI case against Adams go away.
Last September, Makowski and Adams met for drinks at Shanghai Red's on the Buffalo waterfront.
Afterwards, Adams was driving home through Hamburg, with Makowski following behind her, when Adams was spotted driving erratically and was pulled over by police.
A breathalyzer test showed her blood alcohol level was more than twice the legal limit.
Despite that, Makowski in attempt to cover up the case, submitted a sworn statement to a judge saying that Adams' driving had been fine. He also stated that she had had only two drinks.
The following day, Adams, in her attempt to have the case against her dismissed, had her blood drawn.
By then, it showed just a trace amount of alcohol in her system, but Adams then claimed in a statement to the court that the blood had been drawn the night of her arrest.
Late Friday afternoon, Adams pled guilty to the DWI charge, as well another two charges related to her tampering with evidence (the blood test).
"Her conduct was disgraceful and she is now being held accountable for that conduct," said Sedita.
Makowski recanted his statement and resigned from the bench.
He will not face any criminal charges.
Scott Brown: "Knowing that Judge Makowski lied in his sworn statement, why not prosecute him?"
Sedita: "Under the law, if Judge Makowski chose to come before the grand jury and recant, there would be no criminal charges against him, so we fashioned a result where he recanted before the grand jury met, he must resign from the bench, and that means his reputation is disgraced."
Adams is scheduled to be sentenced in April, that sentence can range from probation, to two years in prison.
There's a chance that both Adams and Makowski could lose their licenses to practice law.
The bottom line says Sedita, "They tried to fix a case Scott, and they got caught."
This situation isn't sitting well with the local Mothers Against Drunk Driving organization.
Elizabeth Obad, The president of the Erie County M.A.D.D. chapter, calls this situation a disgrace and wants to see a stiff penalty for Adams when she is sentenced in April.
"We look up to our attorneys and our judges and expect them to enforce the law and I think it's horrible when someone who could have possibly been sitting on the bench and someone who was on the bench to do something like this," said Obad. "I think it's absolutely horrible and I would like to see some still penalties in this matter."
The proceedings before the New York Commission on Judicial Conduct leading to the judge's resignation from the bench are linked here and here. WIBV.com reports that the attorney was a former prosecutor and was sentenced to imprisonment for the driving incident. (Mike Frisch)
[posted by Bill Henderson, crossposted to ELS Blog]
NALP has just posted
its entry-level starting salary for class of 2008--i.e., the lawyers
who started their jobs just as Bear Sterns and Lehman Bros unraveled
and the credit markets completely froze up.
Of the 22,305 law school graduates, a remarkable 23% (5,130 members of the class of 2008) reported an entry-level salary of $160,000. In contrast, 42% of entry level lawyers reported salaries in the $40,000 to $65,000 range. Once again, the central tendencies are a poor guide to the distribution as a whole: whereas the mean salary is a $92,000, the median salary was $72,000. Further, the two modes ($50,000 and $160,000) are separated by $110,000.
Amidst all the layoffs, deferrals, salary cuts, and apprenticeship programs announced in 2009, it is safe to venture that the bi-modal era has peaked. Every law school class for the foreseeable future will graduate to a much different economic landscape. Although many students will regret the opportunity to earn such a big payday upon graduation, it brought with it intense billing pressure, client resentment, heavy leverage, and very little substantive training for new hires. I would argue that profession as a whole (including current and future graduating classes) is better off with a lower entry level salary.
Admittedly that is a long-term view for the profession as a whole. In the short term, current students and recent graduates are in a world of hurt. Specifically, law school debt loads continue to climb. Thus, law schools are (rightfully) going to be under increased pressure to deliver value to our students. I don't think most law professors and law school administrators fully appreciate the difficult times ahead. For a provocative take on the current state of legal education, see Paul Lippe, Welcome to the Future: Time for Law School 4.0.
For some perspective on how this crazy market evolved, see:
- Henderson, Distribution of Starting Salaries for 2006: Best Graphic of the Year (Sept. 4, 2007)
- Henderson, How the Cravath System Created the Bi-Modal Distribution (July 18, 2008)
- Henderson, Class of 2007: A More Extreme Bi-Modal Distribution (July 30, 2008)
- NALP, A Picture is Worth 1,000 Words (Sept. 2007).
After the jump are the distributions from 1991, 2006, and 2007. The primary takeaway is that the bi-modal did not exist in the early 1990s. It first emerged in 2000 (with the dot.com salary wars) and became progressively more extreme as the decade unfolded. On Wednesday, I have an article coming out in the NALP Bulletin, entitled "The Bursting of the Pedigree Bubble," which will provide some additional analysis.
Adhering to the reasoning of a recent opinion that we posted, the Georgia Supreme Court dismissed a reciprocal discipline matter involving the suspension of an attorney in the United States District Court for the Southern District of Georgia. The court majority holds that "the State Bar is not authorized to utilize the reciprocal discipline process when the disciplinary action at issue was taken by a federal district court." The court dismissed a second matter on the same grounds. (Mike Frisch)
An attorney who engaged in multiple instances of driving under the influence exacerbated by flight from the scene and a false claim that his car was being driven by a stripper was suspended for three years by the Louisiana Supreme Court. He had endangered his young daughter by holding her in his arms as he vandalized the truck of his estranged wife's boyfriend with a shovel, breaking the truck's windows and doing body damage as well (which he also had falsely denied).
He also "...most significantly...attempted to disrupt the ODC's investigation by unjustifiably invoking constitutional protections and offering false testimony" in the bar proceedings. (Mike Frisch)
The Louisiana Supreme Court Court disbarred and revoked the license of an attorney for misconduct in several matters. In one case the attorney made a false representation to a court in the course of representing her sister in a domestic relations matter. In another, she made "obscene hand gestures" to opposing counsel and said "f*** you" to counsel. In a third matter, she continued to file pleadings after discharged by her client, accusing the client of perjury and opposing counsel of child molestation, perjury , and destruction of evidence. Another count involved the failure to return artwork that was held by the attorney in trust pursuant to a court order.
Disbarment was deemed appropriate because "a common thread running through [the] misconduct is that it is knowing and intentional [and] has caused significant actual harm." (Mike Frisch)
Friday, June 26, 2009
The New Jersey Appellate Court has issued a decision concerning an employee's rights with respect to emails sent to her attorney on a computer provided by the employer:
...we address whether workplace regulations converted an employee's emails with her attorney-- sent through the employee's personal, password-protected, web based email account, but via her employer's computer--into the employer's property. Finding that the policies undergirding the attorney-client privilege substantially outweigh the employer's interest....we reject the employer's claimed right to rummage through and retain the employee's emails to her attorney.
The employee had been the employer's executive director of nursing and had filed claims of discrimination against her former employer. Counsel for the employer was able to obtain the emails by extracting and creating a forensic image of the computer hard drive. The emails were discovered while reviewing the employee's Internet browsing history. Counsel then used some of the emails in its papers and fought disclosure of the material to plaintiff.
The court discusses the ethical obligations imposed by DR 4.4(b), which obligates counsel to cease reading known privileged documents, notify and return the documents to the adverse attorney. Rather, here:
[the law firm] appointed itself the sole judge of the issue and made use of attorney-client emails without giving plaintiff an opportunity to advocate a contrary position.
The court remanded the matter for a determination whether the employer's attorneys should be disqualified as a result of reviewing the emails and directed the employer to provide all recovered emails to the employee. There is also an extended discussion of the impact of company computer policies on the issues presented. (Mike Frisch)
The Wisconsin Supreme Court ordered a six-month suspension of an attorney for ethical violations in a number of matters. One case involved the attorney's submission of an expert's bill for payment by the State. The State paid the bill but the attorney used the proceeds for her own purposes.
Another involved the following findings:
R.B. arrested Attorney...on September 7, 2004. Attorney...was initially charged with disorderly conduct and resisting arrest. The police report indicated Attorney...recorded a preliminary breath test with a blood alcohol concentration of .117%. After her arrest, Attorney ...paid for the following advertisement in a local newspaper:
In Pursuit of Justice:
Stop Police Misconduct
Former Officer R.B. of the
MTPD has pepper-
sprayed minor females
until rendered helpless and
then committed a sexual
assault against them. To
pursue a civil rights
action, send statement to [address]
Attorney...did not list her name in the advertisement but used her post office box and telephone number.
The attorney has been previously reprimanded on two occasions and was suspended for five months last August for unrelated misconduct. The six-month suspension will remain in effect until the attorney pays costs and restitution. (Mike Frisch)
The Ponca Tribe of Nebraska ("Tribe") filed a motion to intervene in an appeal of a child custody matter involving two children who are members of the Tribe. The lower court had denied the motion because it was not signed by a member of the Nebraska Bar. The Nebraska Supreme Court reversed, holding that the Tribe's right to intervene in the proceeding was granted by federal law (the Indian Child Welfare Act or "ICWA"). The lower court had refused to allow the Tribe's representative to participate notwithstanding the lack of objection from any party to the proceedings.
The court here holds that federal provisions preempt Nebraska's rules governing the unauthorized practice of law. The court notes that the non-lawyer representative designated by the Tribe was experienced in matters governed by the ICWA.
The court should be commended for not allowing unauthorized practice rules to silence the voice of a qualified non-lawyer representative. (Mike Frisch)
An attorney was suspended for five years by the New York Appellate Division for the Second Judicial Department for a number of ethical violations. He had, among other things, jointly represented a husband and wife in drafting a separation agreement and thereafter acted as the husband's lawyer in the ensuing divorce. There were also neglect and escrow violations. The court sets out its sanction analysis:
In determining an appropriate measure of discipline to impose, the Grievance Committee points out that the respondent's disciplinary history consists of three Letters of Caution, one dated April 22, 2004, and two dated March 15, 2004. Those matters involved neglect, failure to forward settlement funds to the complainant, and failure to maintain an escrow account in good order and to make the bank accountable for its errors and inconsistencies. The respondent failed to take the opportunity to request a hearing with respect to those letters and should not now be permitted to recast them in a way he would like them to be viewed.
By way of mitigation, the respondent submits that he was merely trying to help out Mr. and Mrs. Freedman, who had little or no liquid assets and who sought his help in terminating their marriage and resolving related issues. He asks the Court to view the Comis matter as a reflection of the inexperience of himself and his staff in maintaining records and tracking the status of a case. He asks the Court to also consider the nature of a small, one-attorney practice and his cooperation with the Grievance Committee.
While the respondent may not have converted Mr. and Mrs. Freedman's funds for his own benefit, he did convert their funds held in his escrow account by turning them over to Mr. Adler, another client. While law office failure may have played a role in the initial handling of the Comis matter, the respondent should not be permitted to rely on that excuse for providing a false document to the Grievance Committee.
The District of Columbia Court of Appeals entered an order yesterday that denied a motion for rehearing or rehearing en banc in a case where the court had not imposed an interim suspension for a felony conviction. Bar Counsel had filed the motion after a three-judge division of the court had declined to order suspension and instead referred the matter to Bar Counsel for an investigation of the underlying facts and circumstances. Note that the court adds a footnote to its earlier decision that clarifies the procedure in circumstances where the attorney has filed an opposition to the proposed interim suspension order submitted by Bar Counsel. (Mike Frisch)
Thursday, June 25, 2009
An Arizona attorney who had been convicted of extreme DUI, leaving an accident scene and endangerment as a result of an accident with a motorcyclist was the subject of a bar discipline proceeding. A hearing officer's proposed dismissal of the charges was not accepted and remanded by the Disciplinary Commission based on the hearing officer's failure to accord conclusive weight to the underlying conviction. A new hearing officer has found misconduct, although the crimes were an "isolated series of extremely bad choices" and recommended a public censure and one year of probation. (Mike Frisch)
The Delaware Supreme Court imposed a public reprimand of an attorney for problems with the operation of his escrow account. The problems were discovered in the course of a random audit of the account by the bar. It was thus learned that the attorney's employee (his adult daughter) had embezzled approximately $162,000 from the account. The Board on Professional Responsibility's report in the matter noted that the attorney had no information that would have put him on notice of the daughter's dishonesty and that he had "less reason to doubt her honesty than the honesty of an ordinary employee..." The lawyer had mortgaged his home to pay off the affected persons and put his escrow account in compliance with requirements. (Mike Frisch)