Tuesday, April 7, 2009

The Neverending Story

A decision today from the New York Appellate Division for the First Judicial Department in the saga of Milberg Weiss. The court concludes that claims in arbitration should be consolidated:

The Milberg law firm and some of its former partners are engaged in a dispute concerning, in part, appellants' entitlement to a share in the counsel fees awarded by a federal court in connection with certain litigation. Appellants and the firm have demanded arbitration under Milberg's partnership agreement, but the court declined appellants' petition to consolidate the proceedings. It is well settled that "there is judicial power to order consolidation of arbitration proceedings" Although arbitrations arising under separate agreements are not generally consolidated, the proceedings before us not only arise from the same partnership agreement and involve common issues of law and fact, but there is a possibility that separate arbitrations could result in inconsistent rulings. Under these circumstances, the court improvidently denied consolidation.

The fraudulent inducement claims by Kallas and Clark-Weintraub are clearly subject to arbitration under the firm's partnership agreement; but that agreement makes no mention of timeliness, nor does it expressly incorporate New York law. Questions relating to time limits are generally within the province of the arbitrators. Since they will need to resolve the fraudulent inducement claim by Guglielmo, which Milberg has conceded is arbitrable, and it cannot be said that the claims by Kallas and Clark-Weintraub are not intertwined with the other substantive questions raised by appellants, the court should have left to the arbitrators the issue of timeliness of the fraudulent inducement claims by the remaining appellants. (citations omitted)

(Mike Frisch)

April 7, 2009 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Henderson, Zorn & Czarnezki Reply To Baker On Whether Low Judge Salaries Dilute Talent

Posted by Alan Childress

William Henderson (Indiana--Bloomington), Christopher Zorn (Penn State, Poly Sci., shown below at right but left) and Jason Czarnezki (Vermont Law School) have published to SSRN their empirical and interesting article "Working Class Judges."  It also recently came out in 88 Boston Law Review 829.  In his usual modesty, Bill did not tell us; I found it via the SSRN emails from Brad Wendel.  But anyway, Zorn congratulations to our coblogger.  (Not that he logs cobs or anything.)  Here is the abstract:

In recent years, a steady chorus of dignitaries has decried the low pay of federal judges and suggested that the federal judiciary is on the brink of losing its best and its brightest. The persistent nature of these claims should give us pause. Scott Baker's recent study empirically evaluates these claims by examining the relationship between judicial salaries and the work habits and voting patterns of federal appellate judges. If large pay disparities are indeed eroding the quality of the federal bench, Baker theorizes this likely results in more ideological voting, fewer dissents, longer delays in issuing opinions, and a self-selection of judges who are intent on maximizing their influence within the federal judiciary. To test these hypotheses, Baker undertook the formidable task of assembling the requisite datasets, which he then posted on the Internet for other researchers to use. Along with the ingenuity of his research design, we applaud Baker's industry and transparency. Thanks to his efforts, there is now an empirical literature surrounding the debate over federal judicial pay.

At the end of his inquiry, Baker concludes that higher judicial salaries would have virtually no effect on the performance of federal appellate judges. The purpose of this Reply is to qualify Baker's interpretation of his results, at least with regard to judges located in the "Top Five" legal markets of New York, Chicago, Los Angeles, San Francisco, and Washington, D.C. In his original analysis, Baker relies upon the average law firm partnership compensation, adjusted for years in practice and region, to estimate the forgone income - and hence opportunity costs - of each federal judge. Baker explicitly anticipated the possibility that this variable would understate the opportunity cost in large legal markets; thus, he included a Top Five variable plus an interaction term, which captures the effect of forgone earnings when a judge is located in one of the nation's five largest legal markets. Baker's discussion, however, does not formally address the significance of the interaction term, which requires some additional steps to properly interpret.

Based on our reanalysis of Baker's specifications, it appears that judges in the largest legal markets often behave differently than their smaller market counterparts. Specifically, the lower judicial salaries in Top Five markets strongly correlate with behavior Baker characterizes as "ideological" or "influence-motivated." Conversely, while lower judicial salaries in small markets correlate with longer delays in issuing opinions, the exact opposite effect describes the behavior of judges in Top Five metropolitan areas.

Our brief Reply proceeds as follows. Part I provides our reanalysis of Baker's data. Part II establishes an additional comparative context that allows us to speculate why Top Five legal markets may foster a more intense tradeoff of influence versus remuneration. Indeed, as we note, the real or perceived financial tradeoffs are so enormous - and conspicuous - in Top Five markets that federal judges may feel they have been lumped together with a large, faceless working class. We conclude by suggesting that the debate over judicial salaries is rooted in the more general problem of greater income disparity within the American legal profession.

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

An Anonymous Phone Call

The South Carolina Supreme Court imposed a reprimand and other requirements in a bar discipline matter initiated by an anonymous phone call. the attorney and the Office of Disciplinary Counsel ("ODC") entered into a stipulation by which the attorney admitted non-compliance with recordkeeping and use of a trust account. The attorney made "counter" deposits and withdrew funds without proper documentation. He had taken corrective measures to ensure future compliance with the rules.

ODC had sought a harsher sanction. ODC also argued that the attorney had violated Rule 3.1 by arguing that it had engaged in racial profiling in its prosecution of the case. The court: "While we agree with the Panel that [the] claim is meritless, we decline to find a violation of Rule 3.1" (Mike Frisch)

April 7, 2009 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Ex Mero Motu

The North Carolina Court of Appeals affirmed a criminal conviction in a murder case, rejecting the contention that the trial judge failed to intervene in the prosecutor's closing argument:

 Defendant contends that the trial court erred by failing to intervene ex mero motu during the prosecutor's closing remarks. After reviewing the prosecutor's statements, we conclude that the remarks were not grossly improper, and therefore, do not rise to the level of prejudice that would warrant a new trial.
    Because defendant failed to object to the prosecutor's remarks at trial, our review is limited to “'”whether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu.”'” State v. Taylor, 362 N.C. 514, 545, 669 S.E.2d 239, 265 (2008) (quoting State v. McNeill, 360 N.C. 231, 244, 624 S.E.2d 329, 338, cert. denied, 549 U.S. 960, 166 L. Ed. 2d 281 (2006)). Pursuant to this standard, “'“only an extreme impropriety on the part of the prosecutor will compel [the] Court to hold that the trial judge abused his discretion in not recognizing and correcting ex mero motu an argument that defense counsel apparently did not believe was prejudicial when originally spoken.”'” Id. (citations omitted).
    In the present case, the prosecutor made the following closing argument to the jury:
        You know who committed this crime. You know how it was committed. Your difficulty is going to be in applying the law. And I say your difficulty. I hope you don't have any difficulty, but I anticipate you will, because you know that when you find this man guilty, he goes to prison for the rest of his life.

            Mercy? The State is not asking you to execute this man. They're not seeking the death penalty. That's a lot more mercy than was shown this 13 year old. A lot more mercy. We're asking you to find him guilty and let him spend the rest of his life in prison, so another 13 year old boy isn't innocently gunned down.
    Defendant contends that the prosecutor's remarks were grossly improper because the statements suggested that convicting defendant would have a general deterrent effect on the conduct of others. During closing remarks, the prosecution may not argue that convicting the defendant will have a general deterrent effect; however, “the prosecution may argue specific deterrence, that is, the effect of conviction on the defendant himself.” State v. Abraham, 338 N.C. 315, 339, 451 S.E.2d 131, 143 (1994). The prosecutor's closing remarks asked the jury “to find [defendant] guilty and let him spend the rest of his life in prison, so another 13 year old boy isn't innocently gunned down.” The purpose of the prosecutor's argument was to convince the jury to convict defendant to specifically deter defendant's unlawful behavior. As such, we conclude that the prosecutor's statements were not grossly improper.
    Assuming arguendo that the prosecutor's argument was grossly improper, given the amount of evidence against defendant, it could not have been prejudicial. During trial, the State presented overwhelming evidence of defendant's guilt, including defendant's admissions to the police that he and Sterling planned and executed the robbery and that Sterling shot both Tam and Phi Nguyen. Moreover, this evidence was uncontested by defendant at trial and on appeal. Based on this evidence, the prosecutor's statements were not prejudicial, because it was unlikely that his statements impacted the jury's verdict.     We conclude that the prosecutor's remarks were not so grossly improper as to require ex mero motu action by the trial court. Moreover, even if the remarks were improper, they were not prejudicial because the record provides sufficient support for defendant's convictions. Accordingly, we hold that the trial court did not err by failing to intervene ex mero motu during the prosecutor's closing remarks.

LawGuru defines the Latin phrase as follows:

 Mere motion of a partys own free will. To prevent
injustice, the courts will, ex mero motu, make rules and orders which the
parties would not strictly be entitled to ask for.

(Mike Frisch)

April 7, 2009 in The Practice | Permalink | Comments (1) | TrackBack (0)

Monday, April 6, 2009

No Second Bite

The North Dakota Supreme Court imposed a one-year suspension as reciprocal discipline for a sanction of the Minnesota Supreme Court. The attorney had improperly used an escrow account to shield assets from creditors. The North Dakota court rejected the suggestion that the matter should be tried de novo. The court held:

The issue in this case is a variation of the issue in Dvorak, because the Minnesota Supreme Court applied North Dakota rules for the two allegations of misconduct relating to Overboe's trust accounts maintained in North Dakota. Nevertheless, as the Minnesota Supreme Court recognized, the relevant rules are "nearly identical," Overboe, 743 N.W.2d at 861, n.4, and Overboe is essentially asking this Court to require the Minnesota Supreme Court to use a de novo review for disciplinary action against Overboe's Minnesota license. We decline Overboe's invitation, and we consider this case in the context of the criteria for reciprocal discipline under N.D.R. Lawyer Discipl. 4.4(D). To the extent Overboe argues the Minnesota procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process under N.D.R. Lawyer Discipl. 4.4(D)(1), he has not claimed a lack of notice or opportunity to be heard and the due process holding in Dvorak is controlling.

The holding is consistent with the overarching principle that an accused attorney gets one fair chance to contest allegations of misconduct. (Mike Frisch)

April 6, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Another Milberg Weiss Disbarment

The Delaware Supreme Court accepted and ordered the consent disbarment of an attorney who had provided legal services in that jurisdiction. The attorney was formerly with Milberg Weiss and had been found guilty of criminal charges. The attachments to the sentencing memorandum in the criminal case, which starts with the lawyer's own explanation of how he got into trouble, provides some insight into the downfall of his law career. (Mike Frisch)

April 6, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Probation For Failure To Supervise

A Louisiana hearing board has recommended a stayed six month suspension of an attorney who had failed to supervise a non-lawyer employee, resulting in misappropriation of nearly $15,000 of entrusted funds. The attorney had been seriously ill and hospitalized for part of the time in question. Part of the problem was that the lawyer's account records were kept off-site with his accountant. The employee was able to send out and intercept checks that made it appear that the money came from the lawyer's operating account.

The board found that the lawyer had failed to supervise the employee. The lawyer had replaced the funds that were taken. If there are future problems with the trust account other than math error, the recommendation provides that the attorney will then be suspended for a year and a day. (Mike Frisch)

April 6, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Prosecutorial Misconduct From Start To Finish

As has been noted on this blog and elsewhere, there appears to be an emerging trend of bar prosecutions against prosecutors. An Arizona hearing officer recently recommended a 30 day suspension of a deputy county attorney for misconduct in a criminal case that included charges of rape, armed robbery and first degree murder. Some of the charges were predicated on a theory of accomplice liability.

The hearing officer found that "it is particularly troubling that [the] conduct began in opening statement and continued through rebuttal argument." The prosecutor had "carefully considered and deliberately chose to engage in the conduct at issue here. The repeated improper argument in opening statement, even after being admonished by the court, and the improper [closing] argument of the burden of proof were carefully calculated 'bookends' to [his] conduct of the...trial." 

The prosecutor had, among other things, put before the jury evidence that the defendant was in prison, asked improper questions about inadmissible prior crimes, misrepresented DNA and other evidence, implied to the jury that incriminating evidence had been withheld and asserted personal knowledge of the facts by saying "we know" and "we can prove" in his opening statement.

Only 30 days? (Mike Frisch)

April 6, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Balancing Sanction Factors

In a case initiated by a trust account overdraft that was exacerbated by the lawyer's false claim that the problem stemmed from bank error, the New York Appellate Division for the Second Judicial Department imposed a one-year suspension. The bar investigation had led to an array of escrow account-related charges. The court concluded as to sanction:

In determining an appropriate measure of discipline to impose, the respondent presents himself as an inherently honest individual, devoted to his clients, in possession of a sense of fair dealing, and one who has never caused a client or third party to lose any money. He contends that this matter does not warrant a public sanction, and requests that the matter be referred back to the Grievance Committee for the imposition of an Admonition.

The Grievance Committee points out that the respondent received an Admonition in 1990 for arranging a loan between his mutual friends without procuring title insurance or recording the mortgage securing the loan. The respondent's commencement of a foreclosure action was rendered futile because he failed to have the mortgage recorded. He was admonished for failing to protect his client's interests and for creating an appearance of impropriety due to his relationship with the parties.

The Grievance Committee contends that the Special Referee improperly used mitigating factors as affirmative defenses, misinterpreted the meaning of "misappropriation" in the context of professional misconduct, and has otherwise crafted "a result-oriented decision based not on facts and admissions, but on a favorable outcome for respondent."

By way of mitigation, the respondent points out, through his character evidence, that he enjoys an enviable reputation among builders, banks, lenders, brokers, and attorneys. He is on the approved attorney list for more than 35 lending institutions throughout the United States.

The respondent submits that the mistaken deposits were caused by confusion without any intent to deprive. He maintains that he was scrupulous with his calculations and was completely faithful to the inviolability of escrow funds, aside from the mistaken deposits. During the course of his testimony, the respondent averred that he is meticulous in preparing his closing statements, which are prepared simultaneously with the closing itself. He contended that figures are double checked and each separate transaction is reconciled. The respondent maintains that all of his transactions closed without incident and there was never any dispute as to his calculations. According to the respondent, his continued representation of financial institutions is a testament to his integrity and scrupulousness. He deems it ironic that his difficulties with the Grievance Committee emanate from his desire to benefit others by opening an interest-bearing account which has since been abandoned.

Under the severe stress of this matter and without any knowledge of how the shortfall might have occurred, the respondent admittedly "communicated inaccurately" with the Grievance Committee. He quickly came to realize his error, corrected his inaccuracies, and was thereafter completely candid with the Grievance Committee.

The respondent has undertaken corrective measures to avoid a repetition of the underlying events. These include modernizing his bookkeeping system, utilizing QuickBooks software, and hiring a paralegal who is thoroughly familiar with the system. The respondent now continually reconciles his accounts and maintains a separate ledger for his IOLA accounts. He also employs an accountant who does a quarterly review.

The respondent testified that he has never failed to place client funds in an escrow account, has never issued a check from any escrow account against uncollected funds, has never retained interest in any escrow account for his personal use, and has never misappropriated or converted client funds for his own use. He terms this experience "a terrible wake up call."

Notwithstanding the substantial mitigating circumstances, the record contains clear admissions of professional misconduct. Moreover, prior to the entry into this case of Mr. Karp as the respondent's counsel, the respondent was less than forthright with the Grievance Committee. While the respondent attributes his behavior to panic and extreme stress, he nevertheless made clear misrepresentations to the Grievance Committee. Under the totality of circumstances, the respondent is suspended from the practice of law for a period of one year.

(Mike Frisch)

April 6, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

All Due Respect

In response to a remand order of the Louisiana Attorney Disciplinary Board, a hearing committee that had been diected to hear mitigating evidence noted "[n]otwithstanding the instructions of the Disciplinary Board, and with all due respect to it, the Hearing committee did not hold a hearing. To do so would have been a waste of valuable time of not only the committee members but, as well, Deputy Disciplinary Counsel. It would further require [the attorney] to present evidence when he has already expressed a desire not to do so.'

The attorney was charged with two counts of misconduct, one involving neglect and dishonesty, the other failure to pay a medical provider. The board apparently remanded because there was a report of a psychologist in the record. The committe here affirms its earlier recommendation of a ten month suspension and wonders if the board's "confusion" about the state of the record on mitigation. (Mike Frisch)

April 6, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)