Saturday, April 11, 2009

Do Attorney-Arbitrators Hand Out Less Money Than Nonattorney-Arbitrators? Do Democrats Award More Than Republicans? Empirical Study of Lawyers, Arbitrators, and Panel Dynamics

Posted by Alan Childress

Stephen Choi (NYU Law), Jill Fisch (U. Penn.), and Adam C. Pritchard (U. Mich. Law) have posted to bepress their new paper, "Attorneys as Arbitrators."  It looks interesting for the empirical fans among us (like Jeff's recent post on lawyer stereotypes, hypothesis, and testing) and the hardcore ELS types (like Bill). I like the fact that the authors used political contribution as one variable and found its party affiliation to be significant.  Keep in mind, though, that plenty of attorneys (and others) give for pragmatic and nonpolitical-leaning reasons, and often give to both sides.

And, as icing, it can be downloaded without going through SSRN!  Here is their abstract:

We study the role of attorneys as arbitrators in securities arbitration conducted by the National Association of Securities Dealers (NASD, n/k/a FINRA), using a dataset of 422 randomly selected arbitrators and their 6724 arbitration awards from 1992 to 2006. We find that arbitrators who also represent brokerage firms or brokers in other arbitrations award significantly less compensation to investor-claimants than other arbitrators. We find no significant effect for attorney-arbitrators who represent investors or both investors and brokerage firms. The relation between representing brokerage firms and arbitration awards remains significant even when we control for political outlook. We report that ideology correlates significantly with arbitration awards - arbitrators who donate money to Democratic political candidates award greater compensation than arbitrators who donate to Republican candidates.

Because the arbitration award is the product of the panel, not a single arbitrator, we also study the dynamics of panel interaction. We find that the position of chair is an important factor in assessing the arbitrator's influence, although the financial relationships of other arbitrators may also affect arbitration awards. Coalitions with the other arbitrators are also important. If the chair and another panelist possess a common attribute, the effect on the arbitration award increases.

Finally, we provide evidence that the 1998 reforms to the arbitration process - which introduced party control over the composition of panels - ameliorated, but did not eliminate, the effect that attorneys who represent brokers have on outcomes. We find no significant effect from the NASD's 2004 reforms.

Adam Pritchard also posted a piece questioning the common stereotype that Delaware law and courts create a 'race to the bottom' that entrenches and lowers quality of management.  More on that below the fold.  Oh, the new TypePad does not have a fold?  Sorry, then here is the link to Murali Jagannathan and Adam Pritchard, "Does Delaware Entrench Management?" Exciting bedtime reading for Jeff.

April 11, 2009 in Abstracts Highlights - Academic Articles on the Legal Profession, Highlights from bepress and Law & Society Review | Permalink | Comments (0) | TrackBack (0)

Judge Reprimanded

A Tennessee general sessions court judge was reprimanded by the Court of the Judiciary for comments made on the bench and elsewhere that demeaned court employees. The judge referred to one employee with the last name of Hill as "Liar Hill." A second employee was called "Dora Dumb" or "Dumb Dora."The reprimand was an agreed disposition.

The judge's name is John Walton. So far as I can determine, the demeaning comments were not made in response to his being called John Boy. (Mike Frisch)

April 11, 2009 in Judicial Ethics and the Courts | Permalink | Comments (2) | TrackBack (0)

Friday, April 10, 2009

When Are Profitability Measures Unethical?

An interesting, lengthy (126 page) hearing officer report and recommendation from Arizona considers ethics charges against three lawyers for the operation of a so-called "consumer law" firm that targeted unsophisticated clients. The firm had approximately 33,000 clients over a three year period. The charges involved, in the main, allegations of excessive fees and failure to supervise lawyer and support personnel.

The hearing officer rejected all charges against the most junior lawyer but found that the two more senior lawyers had engaged in misconduct that warranted suspension. The two had "violated the ethical rules mainly as a result of the practices which incentive unprofessional behavior by [non-legal support staff]..."

The hearing officer noted that there was expert testimony that suggested a need to develop standards for the consumer law firm model, a view that the hearing officer endorsed. The hearing officer found some of the charged violations but was troubled by the application of the rules prohibiting excessive fees: "Hyperbole aside, I do find that [the law firm's] practices--its retention practice, its use of [support staff], and attorney caseloads--are all implemented to improve profitability. But the ethical rules do not prohibit law firms from employing measures to improve profitability." (Mike Frisch)

April 10, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

When Writing Multiple Choice Questions, Law Professors Should (a) Understand the Components of Good Questions, (b) Allow Justifications, (c) Read the Linked Article, or (d) All of the Above

Posted by Jeff Lipshaw

My Suffolk colleague, Janet Fisher (right), has posted  Multiple-Choice: Choosing the Best Options for Jfisher More Effective and Less Frustrating Law School Testing (Vol. 37, Capital University Law Review, p. 119, 2008).  Here's the abstract:

Multiple-choice testing presents challenges and frustrations not only for the students who take the tests, but also for the doctrinal faculty who prepare and score the tests and for the academic support faculty who work with students having difficulty with multiple-choice tests. This article discusses means by which the multiple-choice testing experience in law school could be improved for both students and faculty. After a brief overview of the history of multiple-choice testing, the article describes problems that arise in connection with multiple-choice testing and the possible effects of flawed multiple-choice questions. The article then reviews basic multiple-choice item-writing guidelines and some general principles of test validity. For this, the article draws upon the work of law professor Michael Josephson and testing authority Thomas Haladyna. Finally, the article evaluates appeal and answer justification procedures that could be used to enhance multiple-choice testing.

Do I have to pay a royalty to Larry Solum if I say "highly recommended?"

April 10, 2009 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)

Get Back

An attorney suspended in Tennessee was reciprocally suspended in Mississippi. He had entered into an alcohol rehabilitation agreement but failed to maintain sobriety. He also engaged in practice while on suspension. He was reinstated in Tennessee and now resides in Georgia and wishes to practice there. He must obtain Mississippi reinstatement to seek admission to the Geoorgia Bar.

The Mississippi Supreme Court granted the reinstatement petition notwithstanding the petitioner's non-compliance with procedural obligations at the time of the reciprocal suspension. The court's focus was on his present fitness to practice and, it concluded, he had adequately demonstated that reinstatement was appropriate. (Mike Frisch)

April 10, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Lawyers, Bankers, and Explananda

Posted by Jeff Lipshaw

In this morning's Wall Street Journal, James Freeman, an assistant op-ed page editor, reviews a book about James Dimon (The House of Dimon) written by one Patricia Crisafulli.  I came for the gratuitous dig at lawyers, stayed for the pop social science, and then got to thinking about it in connection with a post on philosophy of science over at PrawfsBlawg by guest-blogger John Pfaff.

Apparently the book is a paean to Mr. Dimon, who has managed to guide JPMorgan Chase, as yet unliquified, through the financial institution meltdown.  It's Freeman's dig, I think.  Here's the relevant text:

How has giant JPMorgan Chase weathered the financial storm while giant Citigroup was overwhelmed by it? The simple answer, to judge by Ms. Crisafulli's book, is that Morgan has been run by a seven-day-a-week number-cruncher who interrogates managers about the risk exposures in individual transactions. Citi, meanwhile, sailed into the howling winds with a lawyer on the bridge.

The master, commander and lawyer atop Citigroup, CEO Charles Prince, missed the signals on the deteriorating housing market and allowed risks to pile up in off-balance-sheet structured investment vehicles (SIVs).  (Emphasis mine.)

The highlighted sub-heading embedded in the text is the following explanandum ("thing to be explained"): Why has JPMorgan Chase weathered the financial storm better than its rivals?  This promises to be delicious:  the explanans ("explaining thing") has something to do with lawyers at the helm of banks.

Unfortunately, I'll never know, unless somebody else reads the book and tells me (I've lived through enough corporate leaders - unless there's good gossip about people I know I'll put my time to more productive use!) because the column never again addresses this apparently key connection.  There may be something to that hypothesis, but I'm not quite sure if this goes beyond a quick bit of demagoguery.

Instead, most of the rest of the column is devoted to two other explanans:  (1) that Mr. Dimon is something of a control freak ("he spends 80 hours a week examining and refining the operations of the firm, in constant communication with subordinates in various units"), and (2) that he did sensible things like cut costs, avoid $87,000 area rugs and other executive perks, and increased the bank's reserves for loan losses while increasing lending standards.

The social science challenge, of course, is linking the explanans and the explanandum, which gets us into philosophical ruminations about causation.  John Pfaff proposes that physics, unlike the social sciences, produces genuinely testable hypotheses.  I'm not sure about the "unlike."  I suggested in a comment the real problem is the generation of the hypothesis itself, which is the result not of induction nor deduction, but of what Peirce called abduction, or inference to the best explanation. As Steve McJohn, my colleague here at Suffolk (he's got a fun little essay on it), said to me in the hallway just a couple days ago, it's abductive reasoning that's still the black hole.  When you hypothesize, and that's coming out of some barely understood black hole, how do you know whether the hypothesis (the "null hypothesis" - the one you are going to test), even if descriptive in aim, isn't normative in construction?  Hilary Putnam went so far as to say that even physical science hypotheses are affected by this.

Let's play with that a little bit here.  I'm inclined to think that the only thing that really made the difference between JPMorgan's winning and losing is the last thing - increased loan loss reserves and tightening lending standards.  That's my inference to the best explanation.  Now we have a social science empirical design of experiment challenge.   Consider the following null hypotheses on the explanandum "why did JP Morgan do better than its peers?"

- Its CEO was a control freak micro-manager.

- JPMorgan engaged in penny-ante cost cutting.

- JPMorgan's executives worked in cubicles instead of plush offices.

- JPMorgan increased loan loss reserves and tightened lending standards.

- JPMorgan's executives took longer vacations.

- JPMorgan's CEO was not a lawyer.

Strict logical positivists (and other inheritors of the empirical tradition in science) are very, very uncomfortable with talk of causal explanation, mainly because it has a way of lapsing quickly into metaphysics.  Physics can go a long way with observable phenomenon and deductive logic (and just a smidgen of inexplicable asymmetric directionality, like time) - biology less so - and social science even less.  Actors in social settings and social institutions have reasons for acting, have motives, and assign meanings.  They have, as H.L.A. Hart would say, internal points of view.  It's tough to hypothesize in those instances merely with observation and deduction.  You need to get to more robust causation models, like counterfactuals (would the explanandum have occurred in a possible world in which the particular explanans did not exist?)

All of which is to say that there's still a lot of thinking to do about the explanatory power of social science empiricism generally, and certainly in law.

April 10, 2009 in Law & Business | Permalink | Comments (0) | TrackBack (0)

Shifting Factual Claims

An interesting case decided on Wednesday by the Indiana Supreme Court "[arose] from an order of adoption granted to a New Jersey resident for children brought to Indianapolis for their birth to a South Carolina woman who had been inseminated with biological material from California." There's a legal ethics aspect to the case.

The adoption involved twin girls and was initiated by petition filed by counsel on behalf of an unnamed male petitioner. A hearing was held on the day the petition was filed. Petitioner testified that he was born  and resided in Indiana but working as a teacher in New Jersey. He further testified that his sperm was used (along with another donor) to inseminate the birth mother. The court indicated it would grant the petition for adoption.

The lawyer subsequently provided the court with a document that stated that the petitioner was born in New Jersey and that he had lived in New Jersey for the past ten years (his Indiana 'residence" had been a hotel). Hospital personnel raised concerns about petitioner's fitness after he brought a bird into the ICU (the twins were premature and remained in the hospital) and appeared there with bird feces on his clothes, causing serious health concerns. Further investigation revealed that other representations made in the petition were untrue, including the assertion that petitioner was the sperm donor.

The county Department of Child Services appealed the final decree of adoption granted to the petitioner. The court here reversed the final order based on non-compliance with the Interstate Compact on the Placement of Children. The grant of preliminary custody to petitioner remains in effect. The court noted that the adoption judge's "effort to deal with these successive shifting factual claims was understandably daunting" but does not otherwise suggest action against the attorney for the conduct of the litigation. (Mike Frisch)

April 10, 2009 in Law & Society | Permalink | Comments (1) | TrackBack (0)

Reciprocal Suspension For Stalking

An attorney suspended for six months with fitness in New Jersey was suspended for two years as reciprocal discipline by the New York Appellate Division for the Second Judicial Department. The attornay also must obtain reinstatement in New Jersey before the court will consider like action in New York. the court describes the underlying misconduct and the resulting disciplinary matter as follows:

The Office of Attorney Ethics labeled the respondent's actions "continuous and severe." He stalked his wife's attorney and the court-appointed mediator in his divorce case, threatened them, and put them in fear of their lives. In addition, he sent threatening messages to his sister's attorney.

The Office of Attorney Ethics took note of the respondent's psychological problems and his drug and alcohol abuse. Noting that the usual discipline in New Jersey for a conviction of stalking is a suspension and that the respondent was found guilty of two separate charges of stalking which involved threats on the lives of attorneys, the Office of Attorney Ethics recommended a six- month suspension, with reinstatement contingent upon proof of his fitness to practice. The Supreme Court of the State of New Jersey adopted that recommendation.

(Mike Frisch)

April 10, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Disbarment For Trust Account Violations

The Nebraska Supreme Court disbarred an attorney who had accepted monthly $275 payments from a client in order to negotiate with and pay the client's creditors. The lawyer did not deal with the creditors. The amount to be held exceeded $4,000 and the lawyer did not account to or return the funds to the client. The lawyer also had failed to participate in the disciplinary case brought after the client complained. (Mike Frisch)

April 10, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, April 9, 2009

File Return In Arkansas

In an appeal from a reprimand imposed by the Professional Conduct Board, the Arkansas Supreme Court rejected the attorney's argument that he had not violated Rule 1.16(d) by declining to return a client's file on request of the former client's new lawyer. The lawyer had asserted a number of justifications for the retention, including that the issue was governed by his "office policy." The court makes it clear that whatever policy he had must give way to the dictates of the Rule.

 The court noted some differing views as to the extent of the duty to return client files. One approach is that the client gets the entire file; another is that the client gets only the end product. Because the attorney gave back neither the entire file or the end product, the distinction "is not essential for the resolution of the instant case...we commend the two approaches to our Professional Conduct Committee for its evaluation and study, looking toward the desirability of adopting either approach as a comment to [the Rule]." (Mike Frisch)

April 9, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Matter Of Trust

Yesterday I posted a comment about a consent disposition in the District of Columbia that had generated some controversy and a dissent. Today, the Minnesota Supreme Court shows how consent to discipline works in a disciplinary system that is experienced and comfortable with the consent process. The attorney had used the expired notary stamp of a deceased notary, altered the expiration date, fraudulently notarized her own signature on a certificate of trust and submitted the document to a bank.

Sounds pretty serious. The disciplinary counsel and the attorney agreed to a nine-month suspension with a requirement that the attorney petition for reinstatement. The court adopted the recommendation after its review of the file: "We have previously recognized that the [disciplinary counsel] is 'in the best position to weigh the costs and risks of litigation and determine when a stipulated discipline will best serve the interests of the Lawyers Professional Responsibility Board.' "

A court's trust of the wisdom and judgment of its disciplinary counsel is an essential element of a successful system of attorney regulation. (Mike Frisch)

April 9, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Privilege Waived

An employee of a paper mill sought workers compensation benefits from his employer and claimed that he was unaware of the basis of the claim until he had consulted with a lawyer. This late-blooming realization was asserted as a reason to permit the otherwise untimely filing of the claim. The trial court sustained an objection to any inquiry into the claimed conversations by the employer's lawyer on the grounds of attorney-client privilege. The trial court concluded that the employee had operated under a mistake of fact as to the cause of a second back injury until the lawyer, who was consulted concerning Social Security benefits, saw the issue. 

The Maine Supreme Judicial Court reversed and remanded, concluding that reliance on the conversation with counsel as a way to avoid the limitations problem constituted a waiver of any privilege: " [The employee] asserted the attorney-client privilege, not to keep the communication with his attorney confidential-he had already published the communication- but to prevent inquiry into the credibility of his 'mistake of fact' claim that rested on his attorney-client communication."  (Mike Frisch)

April 9, 2009 in Privilege | Permalink | Comments (0) | TrackBack (0)

No Duty To Supervise In California?

Courtesy of Legal Ethics Forum, here is a link to a statement describing the basis for criminal charges against a former employee of the California State Bar alleging embezzlement of over $675,000  from Bar funds. According to the affidavit, the accused was responsible for managing the Bar's real estate and had kept two sets of books. The scheme unraveled in the wake of a payment from a commercial tenant named Caboodle Cartridge.

When things like this happen on the watch of a practicing lawyer, sanctions for failure to supervise a non-lawyer employee may be imposed for violation of the state's version of Model Rule 5.3. A quick review of California's ethics rules did not reveal to me any comparable rule governing the conduct of members of the California Bar.

Update: here's a link to an analysis of supervisory duties in California from the Cornell Law library. (Mike Frisch)

April 9, 2009 in Current Affairs | Permalink | Comments (2) | TrackBack (0)

Wednesday, April 8, 2009

Clerks III: Disbarred For, Among Other Things, Phone Behavior With Judge's Law Clerk

The Fifth Circuit Civil News per Robert McKnight found and reported today on this interesting Fifth Circuit decision (link):

The Court also released this notable unpublished decision: In re Moity, No. 08-30826 (5th Cir. April 7, 2009) (Smith, Stewart and Southwick) (per curiam; unpublished): The district court disbarred Moity for one year in W.D. La. "for his conduct towards a judicial law clerk during a telephone conversation, for making misrepresentations to the court during a contempt hearing, and for impugning the integrity of two federal judges in a prior brief before this court." Holding: Affirmed. " ... Moity's disbarment is supported by clear and convincing evidence." (Appeal from W.D. La.)

McKnight's service is a "daily report and monthly newspaper of all published (and selected unpublished) non-habeas civil decisions of the U.S. Court of Appeals for the Fifth Circuit."

[Alan Childress]

April 8, 2009 in Bar Discipline & Process | Permalink | Comments (4) | TrackBack (0)

Reckless Disregard

The Wyoming Supreme Court suspended an attorney for two months for violating Rule 8.2(a) by recklessly making false accusations against a judge presiding over a domestic relations matter. The charges of misconduct were predicated on the following language in a motion filed by the attorney:

            5.   That the Respondent was able to acquire a hearing date the very day the Order Reassigning Judge was entered creates an appearance of impropriety.  Add to that fact that Petitioner was apprised Thursday, October 4, 2007, that Respondent had already acquired a trial date with Judge Arnold and would be filing a motion for reassignment post haste.  In other words, the reassignment of this case was a fait d’accompli [sic] as of October 4, 2007.  [Emphasis deleted.]

            How can an attorney have gotten a trial date from a judge who was not assigned to the case?  That could only be done by having engaged in improper ex parte communications with the court.  This means that opposing counsel had to have engaged in professional conduct that is not allowed by Rule 3.5(a) and (b), Rules of Professional Conduct.  This Rule provides that a lawyer “shall not seek to influence a judge . . . by means prohibited by law” and “shall not communicate with an official acting in an adjudicative capacity concerning any substantive or procedural issue before him, or which is likely to be before him, unless authorized to do so by law or court order.”  Opposing counsel could not know that the case would be reassigned without having already received assurance from the court that [R]espondent’s motion would be granted and that a specific hearing date would be set.

            Consider, too, that Canon 3B(7)(a)(i) of the Judicial Code of Conduct provides:

“Where circumstances require, ex parte communications for scheduling . . . that do not deal with substantive matters or issues on the merits are authorized, provided:  (1) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication; and (ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.”

            It is obvious enough that Respondent filed his reassignment motion to achieve a procedural and tactical advantage.  Yet no one notified the Petitioner of opposing counsel’s communications with Judges Arnold or Campbell at the time those communications occurred much less took any action to determine whether Petitioner would stipulate to the reassignment of the case or to the trial date.  In each instance that there was a contact between opposing counsel and the court, Petitioner should have been contacted by opposing counsel or the Judge’s office.

            6.   It has been rumored that if one is affiliated with [opposing counsel’s law firm], favoritism may be accorded her by Judge Arnold or those in his office.  Because opposing counsel is with the law firm [], Petitioner believes that favoritism was at play here.

            7.   Canon 2, Code of Judicial Conduct, provides that a judge shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, i.e., a judge shall avoid the appearance of impropriety in all of the judge’s activities.

 The court found that the allegations of favoritism were protected by the First Amendment but:


The clear and convincing evidence in the record that Judge Arnold did not have an ex parte communication with Respondent’s opposing counsel is the direct statement, under oath, by both the judge and the attorney that they did not speak to one another, along with the clear explanation that the hearing date was obtained from Judge Arnold’s assistant.  It is this same testimony that shows Respondent’s reckless disregard for the truth.  Before filing the motion and making the false accusations, she could have made appropriate contact with Judge Arnold, or Judge Campbell, or her opposing counsel, or Judge Arnold’s administrative assistant, but she did none of those things.  Her reckless action violated Rule 8.2(a) of the Rules of Professional Conduct.


(Mike Frisch)


April 8, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Controversial Consent Disposition

As newly-allowed negotiated dispositions begin to work their way through the D.C. bar disciplinary system, cases are emerging that demonstrate the problems as well as the benefits of the process. A recent hearing committee report accepts a consent to a 30 day suspension in a case where the misconduct was well over a decade old and had been the subject of a bar counsel investigation since 2002.

The attorney was paid to perform legal services for the Interim Government of Rwanda and the then ambassador to the United States. He deposited the advanced fee of $55,000 into his trust account. After taking power, the current Rwandan government sought a refund of unearned fees of about $5,000 and the attorney refused to tender the refund; rather, he disbursed most of the funds for services provided to the former ambassador. The current government sued the attorney in federal district court and won compensatory and punitive damages. A finding that he had breached fiduciary duties was affirmed on appeal.

The hearing panel majority:

The circumstances of this matter are, to say the least, extraordinary. This was not the situation of a corporate takeover or a peaceful transfer of regime power. Respondent was being asked to return Rwandan funds to a new government of Rwanda that he believed to be the hated enemy of the Rwandan leaders who had paid him the funds in the first place.

The majority wondered what a lawyer's ethical duty would be if he held the funds for Fort Sumter in 1861 and received a demand for payment from General P.G.T. Beauregard after the fort had surrendered.

The lawyer did not believe that the new government was his client, a belief that proved to be "wrong as a matter of law." While the actions were improper, the majority deferred to the recommendations of counsel, noting that the conduct was remote in time, had taken place prior to a significant decision interpreting Rule 1.15 in such circumstances, and that the lawyer was a decorated Marine Vietnam veteran with a 30 year unblemished career.

The hearing panel chair would reject the consent disposition: "...the Court of Appeals should reject this Petition for Negotiated Disposition and explain in its Opinion that the basic law associated with with lawyer discipline was not changed by adopting [the board rules implementing consents]."  To the dissenting chair, "[t]he central problem in the case before us is that the heart-rending, mitigating story line presented in the stipulated facts and Respondent's testimony is, I submit, totally irrelevant to the charged violation of Rule 1.15(c)."

We can no longer link to hearing committee and board reports from D.C. as the Bar has taken steps to prevent such links. I suspect that this new blocking process is a result of the recent Avvo dispute but it does limit the dissemination of information about lawyer misconduct. The case is In re Robert Johnson. It can be accessed through this link.

I actually suspect that the link blocking is directed at me, one of the few who draws attention to D.C. bar discipline cases. I may develop this theory in a future post entitled "Even Paranoids Have Enemies."

This case could be significant in the development of case law for consent dispositions in my jurisdiction. (Mike Frisch)

April 8, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Avoiding Obligations Leads To Indefinite Suspension

The web page of the Ohio Supreme Court reports the indefinite suspension of an attorney:

The law license of Columbus attorney Michael McCord has been indefinitely suspended by the Supreme Court of Ohio for multiple acts of professional misconduct.

In a 5-2 per curiam opinion, the Court adopted findings by the Board of Commissioners on Grievances & Discipline that McCord improperly accepted legal fees during a 31-month period in which his license was under an interim suspension for being delinquent in his child support obligations; and that he made false and misleading statements regarding his continuing receipt of fees in response to inquiries by disciplinary authorities. 

The Court also agreed with board findings that McCord, who is a sole practitioner, deceptively held himself out as a member of business entities named “McCord Pryor & Associates,” “McCord, Pryor & Associates Co. L.P.A.,” and “McCord & Associates” when he was never involved in a partnership or joint practice with the other attorney identified in those firm names, and his own law practice never employed persons who qualified as “associates.”  

In addition to the violations found by the disciplinary board, the Court also held that McCord engaged in professional misconduct by unreasonably protracting litigation to delay complying with a court-ordered increase in his child support payments; by failing to pay an expert witness after promising to do so; and by creating a deceptively named business entity for the sole purpose of sheltering his assets from garnishment to satisfy his child support obligations.

One interesting aspect of the court's decision relates to the payment of an expert witness. The lawyer retained the expert, gave the expert a check and stopped payment after the expert testified at a deposition. The lawyer claimed that the expert was unprepared and not entitled to payment. The disciplinary panel found that this was not misconduct but the court here found a violation. Experts of the world rejoice.

A concurring justice would not find the violation in the expert payment matter. A dissent would impose a two year suspension with one year stayed.

The court's opinion is linked here. (Mike Frisch)

April 8, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)


An Arizona hearing officer has recommended the disbarment of an attorney for misconduct in several matters. The lawyer was no stranger to the bar discipline system. He had been the subject of two informal reprimands, censure with probation, and had been suspended in Decemeber 2008. Here, among other things, he responded to a lawsuit against him that alleged legal malpractice by falsely claiming that he had insurance coverage.

The hearing officer found that he had "violated his duty to the legal system by not being honest about his lack of legal malpractice insurance and by delaying the litigation....[t]he most serious misconduct involves the Respondent making false statements to the court." He also had failed to maintain accurate trust account records, refused to provide medical records authorizations to opposing counsel leading to the dismissal of a client's case, and obstructed court proceedings. (Mike Frisch)

April 8, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 7, 2009

Incarceration Reimbursement

A law firm appealed the grant of summary judgment in favor of the State of Missouri in a matter arising out of a drug arrest. The sheriff had seized $4,421 from the defendant at the time of arrest. The state had sought forfeiture of the seized funds. The defendant signed a release that directed that the seized funds be released to the law firm as fees. The defendant pleaded guilty and was sentenced to three years in jail. The State then dismissed the forfeiture petition and sought "incareceration reimbursement" from the funds. The law firm intervened and appealed after summary judment was entered in the State's favor.

The Missouri Supreme Court reversed and remanded. There was an issue of material fact whether the funds were not subject to incarceration reimbursement after assigned to the law firm. The client averred that he entered his plea on the understanding that the State had agreed to release the funds to the law firm. The prosecutor agreed. The client's intent to transfer his rights to the firm was clearly expressed in writing. Thus, the court concludes, there is an isuue whether all or part of the money had been earned as legal fees and exempt from incarceration reimbursement. (Mike Frisch)

April 7, 2009 in Billable Hours | Permalink | Comments (0) | TrackBack (0)

DeFabritiis on Client Correspondence

Posted by Jeff Lipshaw

Sdefabritiis My colleague, Sabrina DeFabritiis (Suffolk, left), has posted Clarity, Organization: Watchwords for Client Correspondence on SSRN.  Here's the abstract:

This article focuses on the importance of clarity and organization in client correspondence by attorneys. The Massachusetts Rules of Professional Conduct mandate that attorneys keep their clients reasonably informed on the status of their case and explain matters in a manner which allows clients to make informed decision. This article focuses on tips to structuring written correspondences to achieve these goals.

While Sabrina's piece focuses on Massachusetts, the lessons are far more universal.

April 7, 2009 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)