March 28, 2009
Law Dog and Other Curiosities
Just before we got to the Law School, we passed by the inspiration for Peter Jackson's conception of Sauron's Dark Tower, Barad-dur, in the evil land of Mordor. Compare Memorial Hall (right) to the model used in making the movie (below left).
And finally, to complete the photo gallery, we have James Lipshaw, working hard at proofreading the Teacher's Guide to Ribstein & Lipshaw, 4th Edition (appropriating the office of Professor Carter Bishop).
My apologies to any of you who tuned in to hear about something significant.
Worst Of The Worst
The New York Times has an article in today's paper describing the kickback scheme of two Pennsylvania judges to sentence juveniles to a detention facility that paid them for the business. The article cites to a number of "red flags" that should have alerted authorities to the shocking abuse of judicial authority. It is difficult to imagine a course of conduct that reflects more adversely on the judicial system. I cannot imagine the anger of the families that suffered at the hands of these individuals. (Mike Frisch)
March 27, 2009
Monitored Rather Than Revoked
An Illinois hearing board concluded that a lawyer's license should be "monitored rather than revoked" in a case where the attorney had diverted to himself over $30,000 in fees, half of which were due to his firm. The lawyer was both an associate attorney and independent contractor. The attorney's explanation of the misconduct:
The hearing board recommends a two year suspension stayed after nine months with two years of probation.
The Wrong Spot
The Vermont Professional Conduct Board recently decided a bar discipline case involving the following facts:
Respondent is a sole practitioner with one non-lawyer employee. His practice focuses on real estate transactions and personal injury work. Respondent was admitted to the Vermont Bar in 1987. Respondent maintains a pooled interest bearing client trust account which has been at TD Banknorth for all times relevant to this case.
In February of 2006, Respondent conducted a closing for clients who were purchasing property in Barre. The clients had been renting the property under a “rent-to-own” plan in which a percentage of the rent they had paid was to be applied as a down payment towards the purchase. In anticipation of the closing, Respondent used a software program to prepare a HUD settlement statement. In doing so, Respondent mistakenly entered his clients’ rent payments in the wrong spot. As a result, the final HUD statement credited the seller with approximately $7300.00 more that he should have received. No one, not Respondent, seller’s attorney, the realtor nor the parties noticed the mistake. During the closing, Respondent issued several checks drawn on his trust account. One of the checks was payable to the seller, and due to the mistake on the HUD statement, was for an amount that exceeded what the seller should have received by approximately $7300.00. Nearly two years later, Respondent’s bank notified him that his trust account was overdrawn. On receipt of the notice, Respondent reviewed his trust account records back to the year 2000 and discovered that in several closings he had made the same error that he had made in February of 2006: failing to enter the buyer’s down payment in the proper spot on the HUD settlement statement. Respondent determined that, over time, his errors caused him to disburse from his trust account approximately $11,000.00 more than should have been disbursed. Respondent immediately took out a loan and deposited the money into his trust account to ensure that his clients’ interests were protected.
The board rejected a proposed public reprimand and directed that the attorney be admonished. As a result, the identity of the lawyer remains confidential. (Mike Frisch)
An insurance company is not obligated to defend claims brought against a law firm that do not involve allegations of negligence or malpractice, according to a decision of the New York Appellate Division for the Second Judicial Department:
Here, Liberty established its prima facie entitlement to judgment as a matter of law declaring that it was not obligated to defend and indemnify the Burkhart Firm in the underlying action, and the Burkhart Firm failed to raise a triable issue of fact in opposition. The basic coverage provision of the Liberty policy clearly limits coverage to claims which are caused by "any actual or alleged act, error, omission or personal injury which arises out of the rendering or failure to render professional legal services." Inasmuch as there is no allegation of negligence or malpractice arising out of the Burkhart Firm's performance, or failure to perform, legal services, the claim in the underlying action does not fall within the ambit of the policy. For the same reason, the Supreme Court properly denied that branch of the Burkhart Firm's cross motion which was for summary judgment.
The allegations against the firm are summarized in the court's order:
Suspension Results From Dispute With Siblings
A family dispute over the guardianship of a lawyer's mother has resulted in a suspension of three months followed by one year probation by the Nebraska Supreme Court. The attorney had opposed the appointment of a guardian and, after her sister was appointed, fought with her siblings over virtually every aspect of its administration. The attorney had represented the guardian but was granted leave to withdraw. After withdrawal, the attorney violated ethics rules by filing two notices of appeal and another pleading without the authorization of the client.
A referee had recommended a reprimand with probation and disciplinary counsel asked the court to impose a one year suspension. The court noted that the attorney had previously been privately reprimanded for ethics violations in connection with the guardianship and rejected the recommended second reprimand as unduly lenient. The court agreed with the referee that the bar had not established that the attorney had acted dishonestly. The attorney was admitted in 1976 and apparently has never been the subject of discipline except for this family affair. (Mike Frisch)
The New York Appellate Division for the First Judicial Department ordered the interim suspension for an attorney who had failed to cooperate with an investigation into two complaints alleging possible misuse of entrusted funds:
March 26, 2009
Lawyer Spare That Tree
In a collateral attack on convictions for second degree murder, the defendant claimed that his trial counsel had been ineffective for his failure to attempt to retrieve the death-causing bullet from a tree at the crime scene. Counsel did not deny that the defendant had requested that he do so.
The Tennessee Court of Criminal Appeals affirmed the trial court's denial of habeas corpus relief. The decision not to retrieve the bullet was found by the post-conviction court to be a sound tactical decision. There was no evidence that the bullet was lodged in the tree or that, if found, it would have been favorable to the defendant's case. (Mike Frisch)
Clerk May Work For Auto Dealership
Subject to certain conditions, a clerk-magistrate may also work at an automoblie dealership, according to a recent ethics opinion of the Massachusetts Committee on Ethical Opinions for Clerks:
In your letter of December 23, 2008, you request an opinion of this Committee concerning an employment opportunity to work part-time with an auto dealership. You are the First Assistant Clerk-Magistrate at the ______ Court. You state that you would be providing customer service and business assistance in matters involving the sale and service of automobiles for a dealership which is headquartered in ___ , MA. You indicate that you had previously worked for this dealership and that all dealerships are located well outside of the jurisdiction of the court where you work. You also indicate that your work would be performed outside the hours of the court. You seek the Committee's advice as to what professional or ethical factors you would have to consider in entering the arrangement described above.
In the opinion of the Committee, provided that you comply with the provisions of the Canons of the Code of Professional Responsibility for Clerks of the Courts cited below, your participation in the employment opportunity described in your letter is permissible under the Code. While we cannot predict what circumstances might arise regarding the sale and service of automobiles, we caution you to abide by the following Canons as your strict guideline when assessing what course of action you might adopt. Also, we advise you to review Opinion 94-11 which dealt with outside employment.
The Tennessee Supreme Court disbarred the elected district attorney of the 13th Judicial District who had "knowingly misused and abused his position with the intent to obtain a significant benefit for another, and caused serious injury to the integrity of the legal process." He had improperly communicated with an incarcerated defendant charged with first degree murder and had misrepresented the strength of the case to the family of the victim. In a second matter, he engaged in a conflict of interest by assisting a person seeking post-conviction relief. He made misrepresentations and improperly withheld material information in order to help secure the relief sought. (Mike Frisch)
Short Suspension For Abhorrent Actions
A 30 day suspension of an attorney was imposed by the District of Columbia Court of Appeals in a case where neither the attorney or Bar Counsel had filed an exception to that period of suspension, which had been recommended by the Board on Professional Responsibility. A motions panel of the court had nonetheless directed that briefs on sanction be filed in light of the serious nature of the misconduct.
In the end, the strong presumption in favor of the board's proposed sanction won out. The court here describes the neglect, failure to communicate with the client, lying to the client, and unnecessary work created by the misconduct as "abhorrent actions." On the positive side, there was no prior discipline, a "personal apology" to the client, and return of the retainer fee. (Mike Frisch)
What happens when a lawyer is suspended from practice during an ongoing client representation? The wrong thing, according to an order of a further suspension by the Pennsylvania Supreme Court. The attorney had undertaken a driving while intoxicated case. The representation appears to have proceeded in an appropriate manner until the court suspended the lawyer for six months. Rather than advise the client of the suspension, the attorney advised the client that the matter was being referred to another lawyer due to the press of other business. The client met with but did not retain the second lawyer. The district attorney also was not notified of the suspension. Finally, the suspended attorney falsely certified that she had complied with the suspension order.
The court (with one justice dissenting) imposed an additional three-month suspension based on the consent of the lawyer and disciplinary counsel. A member of the Disciplinary Board had favored a nine-month suspension. (Mike Frisch)
An Invitation From The Center For The Study Of the Legal Profession At Georgetown
The Center for the Study of the Legal Profession at Georgetown Law cordially invites you to attend the inaugural Lecture on the Legal Profession delivered by Theodore Schneyer, Milton O. Riepe Professor of Law, University of Arizona, speaking on the topic of “Developments in the UK and Australia: How Might They Affect the Regulation of Legal Practice in the United States?”
Monday, April 20, 2009, at 4:00 p.m., in the Gewirz Student Center, 12th Floor, 120 F Street, N.W., Washington, DC.
Please RSVP by April 10th to firstname.lastname@example.org.
The Center for the Study of the Legal Profession at Georgetown Law is devoted to: promoting interdisciplinary scholarship on the profession informed by awareness of the dynamics of modern practice; providing students with a sophisticated understanding of the opportunities and challenges of a modern legal career; and furnishing members of the bar, particularly those in organizational decision-making positions, broad perspectives on trends and developments in practice.
Delaware Supreme Court Decision in Ryan v. Lyondell
Posted by Jeff Lipshaw
Courtesy of Steve Davidoff, we've learned that the Delaware Supreme Court has just issued its opinion, reversing the Chancery Court's troubling denial of summary judgment (under §102(b)(7) of the Delaware General Corporation Law) in Ryan v. Lyondell Corporation.
I had noted some real concerns with the Chancery Court opinion; it feels good to be vindicated once in a while. In short, while it's at least conceivable that the directors didn't exercise sufficient care, the basis for the motion for summary judgment was that they were exculpated from damages under §102(b)(7) for duty of care violations; this case could only continue against them if they exhibited a failure of good faith. While the possibility still exists that lack of care in the extreme could invoke the duty of loyalty (i.e., were you really acting for the corporation?), this set of facts just doesn't present that concern.
As readers know, I focus on big questions of judgment, and particularly those where law intersects with business. Many areas of legal doctrine don't really rise to the level of impacting major business decisions. This one does. There's a fine balance between accountability and the need to act expeditiously, and something as small as a overly conservative approach to summary judgment when a board is acting on what appears to be a pre-emptive offer, really does put the directors between a rock and a hard place.
UPDATE: Steve Bainbridge has a more fulsome set of comments, particularly on the application of Revlon here, where the company was "in play" but not in circumstances where the board had committed to a change-in-control transaction.
March 25, 2009
It Sure Doesn't Taste Like Tomato Juice
Not a legal profession case, but perhaps of interest is a recent decision of the Vermont Supreme Court, holding that putting prison inmates on a Nutraloaf diet constitutes punishment and obligates the state to accord the protections of due process. The Nutraloaf diet consists of "a compost of whole wheat bread, non-dairy cheese, carrots, canned spinach, raisins, Great Northern beans, vegetable oil, tomato paste, powdered milk, and potato flakes, mashed together and baked in a loaf pan."
The majority scoffs at the "parade of horribles" recited by a dissenting justice.
The dissent is rather interesting:
Nor does the fact that Nutraloaf is, according to the inmates who may be served it, no more appealing than standard prison fare require us to reverse the trial court’s decision.The Department does not bear the burden of ensuring that the food it provides to excrement-throwing prisoners is precisely as appealing as the food it provides to other inmates. Indeed, the only reliable way to ensure that the special management meals would not be less appealing than standard prison food would be to design them to be a great deal more appealing than the usual fare. Even that strategy might founder on the shoals of the simple fact that different people have different tastes in food. The need to avoid such an absurd result is precisely why the cases uniformly recognize that nonpunitive measures may have incidentally deterrent effects without being deemed punitive.
Somewhere someone may be saying, in the spirit of "Don't do the crime if you can't do the time," something like "Don't throw the sh*t if you can't eat the Nutraloaf." (Mike Frisch)
Schlag and Posner on the Legal Academy (Georgetown Law Journal)
Posted by Jeff Lipshaw
I know there are a lot of practitioners who read this blog for Mike Frisch's seemingly endless supply of lawyers behaving badly, and whose eyes glaze over when "Posted by Jeff Lipshaw" appears in the RSS feed. Having survived (if not thrived) over more than a quarter century's law practice, out-house and in-house, I managed to get past my own cynicism, particularly of litigation practice (but for clients, judges, and opposing lawyers, it was wonderful), just in time to experience the cynicism that exists about legal education. My figurative hat is therefore doffed to editors of the Georgetown Law Journal, who accepted Pierre Schlag's (Colorado) unique thirty-three pages on the emptiness of current legal scholarship, and then got several people, most notably, in my book, Richard Posner to comment. (HT, Concurring Opinions.) (Robin West also has a response, which is the subject of Dan Markel's post over at PrawfsBlawg.)
Schlag may be an acquired taste (if you think law reviews are extended legal briefs, and largely empty, you need to mock the style, which he does), but his point is that legal scholarship, by and large, is the equivalent of air guitar or spam. He's sympathetic to what judges have to do to get their jobs done (and the five or six treatise writers who can help them), but comes down hard on the other 6,994 law professors. I admit, I find this riff on Robert Cover's iconic (and, in my view, Kabbalistic) take on law to be appealing:
One can think here of judicial discourse as a very elaborate, centuries-old mechanism designed to reduce pluralistic messes into singular conclusions. As Robert Cover put it, judges are jurispathic actors. “Confronting the luxuriant growth of a hundred legal traditions, they assert that this one is law and destroy or try to destroy all the rest.” The parties are compelled to “translate” their stories and claims in the idioms of law. They are compelled to adopt law’s ontology, its categories, its networks of causality and symbolic associations. The stories and the claims must conform to the formal limits of the law itself, to
its language, to the authoritative doctrines, policies, principles.
* * *
The upshot is somewhat dispiriting: To the extent that legal thinkers pattern their thinking and writing on judicial discourse, the intellectual limitations will be severe. The reason is simple: Often the social and economic disputes that judges deal with are intractable. Nonetheless, judges must render a decision and must make it seem authoritative. Just how does this happen? How does one start with an intractable dispute and end up with a confident conclusion for one side rather than the other? A tentative answer: not by any intellectually respectable means. But then again, judges do not primarily answer to intellectual respectability. As legal actors responsible to the community and to individuals, they must also answer to moral and political responsibility.
When legal academics imitate judicial discourse, they operate within a linguistic universe that is designed in important ways to avoid, stifle, and shut down intellectual edification. Intelligence can be brought to bear in elaborating the discourse of judges. But it is important to understand that, as a structural matter, there is only so much one can do within this discourse. To put it too strongly: It is like talking with a really bright kindergartner. She really is bright. But she also really is a kindergartner.
Posner's first reaction is that Schlag's piece is "crazy," but comes around to the conclusion that it makes a number of valid points. Now I think I understand Judge Posner's frustration with philosophy, and his preference for pragmatism: philosophers have been circling around the same set of dialectics for many centuries, and there appears to be no sign that any major breakthrough is on the horizon. (He doesn't cite this as an example of the dew loop, but it's my favorite: the screaming match, accompanied by real hate among some of the participants, whether human consciousness is ultimately reducible - scientifically speaking - or not. My view: it either is or isn't, but either position you take is for the time being a matter of faith, either in reducibility or non-reducibility, which is itself non-reducible). But Judge Posner doesn't advocate striking philosophy or English from the curriculum; they are disciplines the study of which helps hone the rational mind. There just isn't going to be a lot of earth-shaking scholarship coming out of those disciplines - maybe one or two great works per generation.
The analogy to law, as I understand Judge Posner, is that what most law professors (those who can't find truly worthy scholarly projects - note that, while agreeing generally with Schlag on the aridity of most scholarship, Judge Posner is more sanguine than Schlag on there being something to study) should do is probably akin to what great teachers in small colleges do: teach their subject and don't worry too much about being scholars.
I would not have objected had Schlag urged a major reallocation of legal academic resources from interdisciplinary research and teaching to Langdellian “normal science.” He thinks the needs of Langdellism can be satisfied by half a dozen professors in each field; the remaining ninety-five percent of the legal professoriat would do no scholarship, but just teach, do consulting, or practice law. I certainly would not object to a reallocation of substantial academic resources from constitutional law and constitutional theory to Langdellism.
What would be really helpful, observes Judge Posner, follows on what Schlag points out: judges don't have enough time to think about the right answers, and academics who do should concentrate on helping them.
These pieces are just a lot of fun to read, and scream out something about the emperor's clothes.
Well, I'd expound more on this, but I need to get back to checking galley proofs for my own exercise in Langdellism, the fourth edition of Ribstein & Lipshaw, Unincorporated Business Entities. (Get it while it's hot!)
Your Face Is Familiar
During the course of a divorce proceeding, the wife sought an order of protection from alleged abuse on the part of the husband. A hearing was scheduled and husband's attorney sought a continuance due to a previously-scheduled court appearence. The trial judge judge denied the motion on the mistaken belief that the hearing must take place within a certain amount of time and that the time could not be extended . As a result, the husband appeared without counsel.
The judge looked familiar to the husband. In fact, the judge had previously represented the wife in unrelated matters several years ago and, perhaps, her mother. The husband sought disqualification of the judge but the motion was denied. The hearing went forward and the judge ruled in favor of the wife.
The Maine Supreme Judicial Court held that the continuance request was erroneously denied and that the judge must be recused from the hearing on remand. The husband's concerns about the judge's impartiality were reasonable and requied recusal under the circumstances for the new hearing. (Mike Frisch)
When an employee of the YMCA was accused of improper touching of minors, the Y's general counsel recommended that its Board hire an outside entity to make proposals regarding policies and procedures in light of the allegations. The board followed counsel's advice and the report was prepard in anticipation of litigation.
After suit was filed, the plaintiffs sought access to the report. In a decision reversing the lower court's order to disclose the report, the Rhode Island Supreme Court held that the work product doctrine shielded the report from diusclosure. (Mike Frisch)
The New Jersey Appellate Division remanded a matter for a proper determination of whether the fees awardrd to class action counsel were reasonable. The underlying class claims had been brought by doctors who had rendered services to patient-members of the defendant health care plan alleging harm from unfair trade practices. The trial court had awarded $6.5 million in attorneys fees. (Mike Frisch)
Lost Will, Lost License
From the web page of the Ohio Supreme Court:
The license of Cincinnati attorney Darrell Brown has been indefinitely suspended by the Supreme Court of Ohio for misappropriating client funds entrusted to him, failing to administer a decedent’s estate after losing the original copy of the will, ignoring the client’s requests for information and the return of property to which the client was entitled, and failing to cooperate with disciplinary authorities investigating his misconduct.
The Court adopted findings by the Board of Commissioners on Grievances and Discipline that instead of depositing a $500 fee advance and a $739 cashier’s check payable to the decedent in a client trust account, Brown deposited the unearned fee in his personal account and endorsed and spent the check payable to the decedent without the knowledge or consent of his client. Brown never opened the decedent’s estate in probate court, and subsequently failed to respond to repeated attempts to communicate with him by the client or to inform the client that he had lost the decedent’s will.
The Court also found that Brown violated the state bar governance rule that requires attorneys to cooperate with all disciplinary investigations when he failed to answer the grievance the client filed against him with the Cincinnati Bar Association or to respond to subsequent inquiries, ultimately requiring the disciplinary board to undertake default proceedings against him.
The court's decision is linked here. (Mike Frisch)