April 18, 2009
Over at John Flood's RATs blog site -- he is a British law-and-society prof who occasionally does stateside duty teaching legal ethics in U.S. law schools -- John posts the wonderful cartoon below, debates a commenter over whether the joke in it is utopic or dystopic, and reminds readers of an oldie but goodie lawyer joke, the one about
A classic. Previously, I offered four bad lightbulb-replacement jokes for law professors.
When It Rains It Poors: Now Texas Has Revoked License of Solo Practitioner For Unpaid Student Loan Debt
Posted by Alan Childress
As a follow-up to Mike's story Thursday on the New York bar applicant who was denied admission for student load debt, consider that even existing law licenses are at risk. The National Law Journal's Leigh Jones reports Monday (found here at law.com) on this harrowing tale:
He had been granted conditional admission in 2001 and an extension later, but still owed some $67,000.
A year later, the board found that he had not taken care of his debt and recommended the revocation of his license. A trial court later affirmed the decision.
In arguing against the revocation of his license in the appeals court, ... [he] argued that the board erred in finding that he lacked good moral character. The appeals panel was not persuaded ... Santulli, who represented himself, said that he plans to hire a lawyer to appeal the decision.
As Mike has pointed out many times on this site, based on his experience as a bar prosecutor, there's wisdom to that last sentence. And in other news, PBS is just finishing up its Masterpiece Classic's presentation of Dickens' Little Dorrit.
Compare Mike's post last month on an Illinois hearing board that "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's explanation: behind on house note and bills, from paying debts including "repaying about $65,000 in student loans" and credit cards. Hmmmm. Not repay loans = untrustworthy = revoke license. Repay loans by stealing from firm = worthy of redemption = nine month suspension then probation. But do not try this at home. Especially if the home sits in Texas.
April 17, 2009
No Free Lunch
The Kansas Supreme Court censured an in-house corporate attorney who ate meals in the company cafeteria (run by an independent vendor) and left without paying. After he had been observed on several occasions, a video camera was installed to catch him. He responded by email when notified of the evidence:
'I am embarrassed and disgusted for myself and apologize to you and the Koch companies. I lied. I stole. I violated the Code of Conduct.
'I can't find any reason for my actions other than I wasn't thinking. I could write paragraphs on what was going through my mind and various excuses for what occurred. But the simple fact is--none of that matters and there is no excuse. I have had to tell my parents, who are here, my wife and my children what I did. I received no sympathy and the same question--why? I have no good answer, but have searched within myself for any other type of behavior that remotely connects to this blatant error in judgment. I can come up with none.
'I understand that I have placed you in a bad position and only you will be able to determine whether you can trust me again. This is an isolated incident and out of character. I encourage you to take a look at my past actions in making your determination.
'I take full responsibility and accountability for this action. I understand that as a legal leader, I am responsible for leading the way towards [sic] integrity and compliance. I failed in this instance. I put this to you in writing because I know and believe that I conduct my actions with honesty, respect and integrity. I will have to prove that again.
'I apologize. With great humility and a heavy heart, I ask you please to consider my apology in determining your course of action.'
The lawyer later wrote disciplinary counsel the following letter:
'I believe it is important that attorneys conduct themselves both in providing services to clients and in their personal affairs in accordance with the requirements of the law. I believe that I should self-report a potential conduct issue under the Kansas Rules of Professional Conduct ('Rules').
'I have been employed as in-house counsel by Koch Industries, Inc. and INVISTA located in Wichita, Kansas over the last 6 years. Prior to joining these companies in-house, I practiced in the private law firm arena for 7 years. During the week of September 24, 2007, I was accused by my company of taking lunches from the cafeteria without paying. I initially denied this accusation, but after the company presented me with certain evidence, I admitted that same day (in person and in writing) that due to oversight and time pressure I did not immediately pay for those lunches, but intended to in the future. I have offered to reimburse the cafeteria and my company on several occasions, the first being on September 28, 2007. No other evidence of misconduct was presented to me by my company and I have since been forced to resign my employment.
'I self-report this potential misconduct to you as I feel it is my obligation to do so under the Rules. I welcome the opportunity to meet with appropriate authorities of the Bar Association to answer any further questions you may have regarding this matter.
'If I can provide you with any additional information regarding the nature or circumstances of this self-reporting, I stand willing to cooperate.'
Full Contingent Fee Earned
The Nebraska Supreme Court has held that a firm firm that had promptly secured the settlement of a serious personal injury matter was entitled to enforce a 1/3 contingent fee agreement entered into by the client.The client discharged the law firm after the firm had secured the settlement offer. After an earlier remand by the court, the trial court had awarded judgment to the law firm. Here, the court affirms the judgment. The fact that the underlying case had settled promptly did not make the fee unresonable. Rather, the fact that the case was brought to a fair and just conclusion reflected favorably on the quality of the legal work. Under the circumstances, the client had failed to establish that the contractually agreed to fee was unreasonable. (Mike Frisch)
Credit For Time Served
From the Web page of the Ohio Supreme Court:
The license of [a] Cincinnati attorney...has been indefinitely suspended by the Supreme Court of Ohio for failing to refund unearned legal fees, failing to notify clients that he had allowed his malpractice insurance to lapse, accepting payment from Butler County for representing an indigent client after the client’s family had already paid him, and initially failing to cooperate with disciplinary authorities investigating his misconduct. [The attorney] has been under an interim license suspension since December 2007.
The Court adopted findings by the Board of Commissioners on Grievances & Discipline that in his dealings with four different clients [he] violated multiple attorney discipline rules including those that prohibit neglect of entrusted client legal matters, failure to pay or deliver funds to which a client is entitled, engaging in conduct involving fraud, deceit, dishonesty or misrepresentation and engaging in conduct that reflects adversely on an attorney’s fitness to practice law.
The Court took note of supplemental board findings that [he] had no prior disciplinary offenses, made full financial restitution to his clients and to Butler County, and fully admitted and expressed remorse for his wrongful acts. It also acknowledged expert testimony that a diagnosed mental disability was a significant contributing cause of [his] misconduct, and that he had obtained treatment and a positive prognosis from a qualified health care professional indicating that he will be able to return to the ethical and professional practice of law.
In light of these mitigating factors, the Court voted to impose an indefinite license suspension but to allow credit for the 15 months [his] license has been under an interim suspension. As a result of that credit, the earliest [he] will be eligible to seek reinstatement is December 2009. The Court set conditions for future reinstatement of [his] license, including a three-year period of probation during which he must continue treatment for his diagnosed mental disability and remain in compliance with a recovery contract overseen by the Ohio Lawyers Assistance Program.
The court's decision is linked here. (Mike Frisch)
Credibility Findings Favor Lawyer
A 60 day suspension was imposed by the Maryland Court of Appeals in a disciplinary case involving three separate matters.
The court sustained the hearing judge's finding of no misconduct for the lawyer's failure to disclose two traffic tickets in his admissions application: "It is certainly feasible that one would have trouble remembering something as minor as these two tickets."
The court also sustained the hearing judge's finding of no misconduct in connection with an event that arose from a traffic stop at a sobriety check point. The officer confiscated the lawyer's drivers license after he smelled the odor of burning marijuana in the car and the lawyer had refused a breath test. The lawyer was taken into custody. He thereafter applied for a duplicate drivers license despite the fact that his license had been returned by the officer along with other documents. The lawyer explained (and the trial judge accepted) that he had been distracted by concern about his minor daughter, who was left alone while he was locked up, and had not inventoried the returned documents. He had not acted dishonestly in the process.
Before the Court of Appeals, Bar Counsel sought to overturn the above conclusions and have the lawyer disbarred. The court rejected Bar Counsel's exceptions based on its deference to the credibility findings made by the trial judge. The court sustained findings of misconduct relating to a series of expungement petitions that the lawyer filed on behalf of a client. The trial judge found that he had attempted to mislead a court after the clerk's office had thrice rejected the petitions as premature under the law. As to the misconduct, the trial court had been gentle with the lawyer, finding that the misconduct was "mitigated to some extent by his misunderstanding of the relevant case and statutory law."
The court rejected the lawyer's contention that he was not given proper pleading notice of the charges relating to the expungement matter. (Mike Frisch)
April 16, 2009
Robertson on Lawyers' Identity, Judgment, and Cognitive Bias
Posted by Jeff Lipshaw
Whenever a new corporate or governmental scandal erupts, onlookers ask "Where were the lawyers?" Why would attorneys not have advised their clients of the risks posed by conduct that, from an outsider's perspective, appears indefensible? When numerous red flags have gone unheeded, people often conclude that the lawyers' failure to sound the alarm must be caused by greed, incompetence, or both. A few scholars have suggested that unconscious cognitive bias may better explain such lapses in judgment, but they have not explained why particular situations are more likely than others to encourage such bias. This article seeks to fill that gap. Drawing on research from behavioral and social psychology, it suggests that lawyers' apparent lapses in judgment may be caused by cognitive biases arising from partisan kinship between lawyer and client. The article uses identity theory to distinguish particular situations in which attorney judgment is likely to be compromised, and it recommends strategies to enhance attorney independence and minimize judgment errors.
April 16, 2009 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack
LPB Still in Top 35 of Law Prof Blogs, Says TaxProf Sitemeter Survey
Posted by Alan Childress
Because of the many ethical readers and other occasional lurkers here (and we do thank you), TaxProf Blog's latest survey of traffic on blogs by U.S. law professors ranks The Legal Profession Blog as number 31 in discrete visitors -- and number 28 in page views -- during the most recent survey period (April 1, 2008 through March 31, 2009). That puts us up slightly from the last such report. Bill Henderson's other b-venue, Empirical Legal Studies, ranks similarly -- and I congratulate him and his colleagues there for their consistent readership (count me as one), as well.
Here, too, is the e-badge we get to post showing our status as an ABA Journal honoree for '08, as in '07. I think we can all agree that one is directed mainly at Mike Frisch, and really also to the insightful and opinionated readers' comments which follow his many bar discipline and judicial misconduct reports. (Notably helpful comments came from Patrick O'Donnell, Wick Chambers, Stephen "FixedWing," Fred Ours, Stephen Diamond, "kelly" and "joe," to name just a few.) Keep it up, y'all.
Anyway, some good LPB news on a day when many readers' hearts just sank deep into their respective stomachs just from reading Mike's latest title, Admission Denied Due To Unpaid Student Loans.
Admission Denied Due To Unpaid Student Loans
The New York Appellate Division for the Third Judicial Department denied the application for bar admission of an applicant who had passed the February 2008 bar exam. The applicant disclosed student loans with a total balance of $430,000. He professed an intent to repay and "attributed his nonpayment to the downturn in the economy and bad faith negotiations on the part of some of the loan servicers." The court noted that the loans dated back to 1985, he had not made substantial payments and "had not been flexible" in dealing with the loan servicers. (Mike Frisch)
That Time of Year: Exam Tips for Law Students Reloaded
Posted by Alan Childress
Maybe it is actually too late for some of the more useful exam-taking tips (like listen and engage during the course, and study hard), but I thought I would point to some good advice for test-takers in law schools right now who are about to enter that Matrix once again. (Of course, grading them is often like seeing a cat arch his back again and saying "Whoooa, deja vu." And a few exams remind me more of Bill & Ted's Excellent Adventure. Which makes me wonder what happened to the actor who played Bill? Oh, turns out Alex Winter played "Bill S. Preston, Esq.," and then went on to several projects as either actor, producer or director. My bad.)
One much-linked source is Jeff Lipshaw's classic post here at LPB on exam-taking: Beyond IRAC. Add to that this new post on discourse.net listing advice from two other law profs. One explains pithily what we mean by applying the law rather than being conclusory, and about time budgeting (that skipping one question cannot be salvaged by excellence elsewhere). Another points out you should be "answering the question rather than trying to show how much you know or how much work you have done - relevance is crucial"; I often find that first-years, especially, want to prove to me they learned the whole course on every question, when my question may be (likely is) more focused than that.
Read also the comments to this post, as a debate ensues over the value of outlining advice from Getting To Maybe, and other readers post a few more good tips. One notes that a lot of exam tip sources such as Getting To Maybe are like diet books--you know the hard part so just do it. I would add an analogy to reading lots of golf instruction books. At some point the best advice is to take practice exams and then follow that by taking practice exams. Repeat.
From the web page of the Minnesota Supreme Court:
Suspension from the practice of law for 60 days is warranted for lawyer who failed to file individual income tax returns, failed to report income to taxing authorities, failed to maintain practice-related books and records, failed to use written retainer agreements in connection with nonrefundable fees, made misrepresentations to the Director of the Office of Lawyers Professional Responsibility, and failed to cooperate with the Director's investigation.
The opinion is linked here. (Mike Frisch)
El Dorado, the Cusp, and Cost-Benefit Analysis
Posted by Jeff Lipshaw
Several times over the years I've quoted Robert Louis Stevenson: "to travel hopefully is a better thing than to arrive." I decided to find the source of the quote, and it is in the essay "El Dorado," the sixth in a book called Virginibus Puerique, published by Scribner in 1904, and now in the public domain. As is often the case, it turns out the entire quote and, indeed, the entire essay, is rewarding.
The essay is a meditation on the irony or paradox of our pursuits: "we all shoot at the moon with ineffectual arrows," knowing that the goals we attain are not really the end, even though we work toward them as if they were.
A strange picture we make on our way to our chimaeras, ceaselessly marching, grudging ourselves the time for rest; indefatigable, adventurous pioneers. It is true that we shall never reach the goal; it is even more than probable that there is no such place; and if we lived for centuries and were endowed with the powers of a god, we should find ourselves not much nearer what we wanted at the end. O toiling hands of mortals! O unwearied feet, travelling ye know not whither! Soon, soon, it seems to you, you must come forth on some conspicuous hilltop, and but a little way further, against the setting sun, descry the spires of El Dorado. Little do ye know your own blessedness; for to travel hopefully is a better thing than to arrive, and the true success is to labour.
Yesterday we had the pleasure here at Suffolk of listening to Doug Kysar (Yale, right) speak elegantly about the book he has under contract with Yale University Press, Regulating from Nowhere: Environmental Law and the Search for Objectivity. It's a critique of the predominant cost-benefit approach to environmental regulation, not so much to propose an alternative solution, but instead to suggest that there is a seed of brute explanation in the quest for social scientific objectivity. While there's much food for thought for the environmentalists, there's also something here for jurisprudes. It struck me that Doug is another "philosopher of the cusp," struggling to say that for all that social science (including welfare economics) aspires to objectivity, there's something missing. As I said a few days ago, we who are sufficiently empiricists (in the philosophical, not the methodological, sense) acknowledge that all we are ever going to "know" is what we can observe and measure and record, and recoil at human claims to knowledge of the supernatural. Yet we feel, as Charles Taylor says, "a sense of unease at the world of unbelief: some sense that something big, something important has been left out, some level of profound desire has been ignored, some greater reality outside us has been closed off."
I've been studying Michael Moore's new book, Causation and Responsibility, and thinking about the strange picture we do indeed make to our chimaeras. Whether it's the universal moral grammar of John Mikhail, the evolutionary determinism of Joshua Greene, the naturalized jurisprudence of Brian Leiter, the strange anti-metaphysical metaphysics of Dworkin's claim to have divined objective moral truths, I'm skeptical of any claim (or apparent claim) to arrival. The problem with "naturalist" or "empiricist" or "consequentialist" responses to deontology is that, to my mind, they aim at a straw person. I'm not prepared to speak for God, don't know if there is a God, am skeptical if there is a God that it's anthropomorphic. So I'm not suggesting that some ethereal or spiritual brute explanation substitute for scientific or otherwise rigorous inquiry. Neither, however, do I accept what I read as Leiter's "burden of proof" argument; that naturalism is the only acceptable approach to what's real and the onus on demonstrating otherwise is on whomever is a non-naturalist. In the face of the continuing evidence that we have paradox in the world - the inexplicability of consciousness (is it reducible or not?), problems of recursiveness and infinite regress, the limits to self-contained mathematical systems, and others - it seems to me just as much a matter of faith that science will solve the problems as that those appearing most intractable will ever be solved. As Doug pointed out, consequentialism in the extreme (say, wholly utilitarian approaches to the value of life) leads to absurdity (lots of wealth but no living people to spend it). Yet on the other end of the philosophical spectrum, so do extreme exercises in reason (called dogmatism or fanaticism).
We on the cusp sense intuitively that microeconomics gets a lot right; yet we read a passage from Derrida or Robert Cover, and while recoiling from complete indeterminacy or skepticism or post-modernism, nevertheless understand there's something big that science or economics leaves out. (This leaves us unlikely ever to appear on Hardball or The Situation Room, and quaking at the mere prospect of being interviewed by Stephen Colbert.) We just shy away from soundbites like Moore's "In truth, I find libertarian metaphysics to border on the unintelligible. . . . The will as uncaused causer is a very strange idea. How can there be an event that cause other events yet is itself not subject to causal influences by earlier events?" (p. 272) (So much for Kant!) Well, that's the mystery! We don't know if our sense of free will is shaped environmentally or as a matter of evolutionary adaptiveness. Without rejecting that there can be objectivity, we're just skeptical that claims to objectivity about ourselves (whether micro- or macro-) aren't one more conspicuous hilltop on the way to an unattainable El Dorado.
It's hard to write in the legal academy and not have some prescription at the end (see Schlag), but Doug Kysar's was, it seemed to me, appropriately humble. It simply asks that we focus more on traveling hopefully than operating on the illusion we've arrived.
Trust Account Violations Lead To Disbarment
The South Carolina Supreme Court disbarred an attorney for misconduct primarily involving the operation of his trust accounts. He had a general practice that featured a high volume of real estate closings. He was the sole signatory on trust accounts. The investigation began when he bounced a check for over $72,000 in a real estate closing in 2002. He was placed on interim suspension in May 2002 and the court here imposed disbarment nunc pro tunc to the interim suspension.
As to sanction:
We acknowledge it is unclear whether Smalls used the unaccounted for money for his personal benefit. What is clear, however, is that Smalls drastically failed to keep clients’ property safe and mishandled money, moving funds from one account to another to cover shortages. Accordingly, we find that disbarment is an appropriate sanction under these circumstances. Based on precedent and Smalls’ interim suspension since May 16, 2002, we find imposing a sanction of retroactive disbarment adequately protects the public.
Better Judging Through Education
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio today announced the adoption of amendments concerning continuing judicial education requirements. The amendments to Rule IV, Section 2 of the Rules for the Government of the Judiciary of Ohio take effect May 1.
For the first time, the amendments require a specific number of instructional hours related to access to justice and fairness in the courts. The two hours of instruction are intended to address matters of self-represented litigants, pro bono representation, foreign language interpretation, race, ethnicity, gender, disability, and sexual orientation, and how they impact the public’s trust and confidence in the judicial system and perception of the administration of justice in Ohio’s courts.
Full-time judges, part-time judges, and retired judges eligible for assignment to active duty pursuant to Section 6(C), Article IV of the Ohio Constitution must complete and report a minimum of 40 hours of instruction every two years on subjects devoted to the law and judicial administration. At least 10 of the 40 hours must be completed through courses offered by the Supreme Court’s Judicial College.
The changes to the judicial education requirements reflect recommendations issued by the Ohio Commission on Racial Fairness and the Racial Fairness Implementation Task Force.
Concurring in the amendments were Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O'Connor and Robert R. Cupp. Justices Terrence O'Donnell and Judith Ann Lanzinger concurred in part in adopting the amendments but dissented as to the mandatory nature of the requirement for a course on the topics of access to justice and fairness in the courts and would instead offer the course on an optional basis.
The text of the amendments may be accessed by going to this link. (Mike Frisch)
The Maryland Court of Appeals held that a prosecutor's rebuttal closing argument fairly commented on the closing argument of defense counsel. Defense counsel had called the jury's attention to potential witnesses that the State had not called and suggested that the jury should have been able to hear from the missing witnesses. The prosecutor then argued that the defense could have issued subpoenas for those witnesses to testify. The court concluded that the defense had opened the door to the response. The comments did not shift the burden of proof. (Mike Frisch)
April 15, 2009
Drunk Drag Racing Results In Death, Bar Resignation
The Oklahoma Supreme Court accepted the resignation of an attorney as a result of the following criminal conduct:
The charges in Tulsa County District Court Case No. CF-2008-1108, stemmed from occurrences on December 22, 2007, when Respondent was drag racing another vehicle on a public road while under the influence of alcohol. The Information in the criminal case sets out that the driver of the other vehicle swerved into Respondent's lane, Respondent lost control of his vehicle and it struck a third vehicle. As a result of the collision a passenger in Respondent's car was killed and two other people were injured.
The resignation is tantamount to disbarment as the attorney must wait at least five years to seek reinstatement. According to a report in the Tulsa World, the person who died was the lawyer's law partner. (Mike Frisch)
How To Find A New Practice Specialty
The Maryland Court of Appeals disbarred an attorney based on findings that he had committed prejury by filing false business reports under oath in bankruptcy proceedings and had flagrantly disobeyed court orders. The attorney had moved to Maryland after serving as an Associate General Counsel in the Office of the New York Comptroller.
One interesting point involves the trial judge's finding on how the lawyer gravitated to a debtors rights practice: " He elected to pursue this area because he was getting sued by creditors and...learned defenses available in credit card cases." (Mike Frisch)
The Maryland Court of Appeals imposed an indefinite suspension of at least 24 months on an already suspended attorney who had engaged in a romantic relationship with a client. When the client raised concerns about how the personal relationship might affect the representation, he "simply smiled and told her that it was not a problem..." The hearing court found that the client had testified credibly that she and the lawyer had had sex in his office notwithstanding his denials.
During the affair, the client became concerned that the lawyer was unfaithful to her. She learned the identity of another paramour of the lawyer and contacted the other woman. The two then confronted the lawyer. The client then drove to the lawyer's home and advised his wife that he was having affairs with at least two women. The affair ended in a bar complaint and a malpractice suit. The suit was dismissed but the Bar Counsel prosecuted the lawyer based on the client's complaint.
The court here rejected the suggestion that the behavior did not result in a conflict of interest. The lawyer knew the client was not a "piller of emotional stability" during the affair. There is no per se prohibition against sex with a client in Maryland but this "does not mean that such relationships should be pursued or are immune to sanctions." The court further found that the lawyer had brought disrepute to the legal profession and that ignorance of his ethical obligations was not a defense. The vulnerabitity of the client was treated as an aggravating factor, as was the lawyer's continuing failure to acknowledge the adverse impact of the romantic relationship on the representation.
Three dissenting judges would disbar. (Mike Frisch)
April 14, 2009
A Reasonable Fee
An attorney was retained by the father of a deceased child to prosecute a wrongful death action. The father and the lawyer agreed to a 1/3 contingency fee. The case was settled for the defendant's insurance policy limit of $300,000. The attorney had recommended a prompt settlement before lab reports were completed that could have had a negative impact on the value of the case. The mother, who had not participated in the representation, objected to the lawyer's fee to be paid from her statutory share of the settlement proceeds.
The Tennessee Court of Appeals affirmed the trial court's conclusion that the fee was a reasonable one and that the mother was obligated to pay as a passive beneficiary of the lawyer's services. The award was not based on the contingency agreement; rather, the trial court had heard conflicting expert testimony concerning a reasonable fee and concluded that 1/3 was reasonable. (Mike Frisch)
It's a day for cases involving discipline against pistol packing lawyers. The North Dakota Supreme Court has a case scheduled for dispostion today in which the Disciplinary Board has recommended disbarment.
The attorney's issue on appeal:
Does the record support finding number 7 by the Hearing Panel that "Light carried a firearm or dangerous weapon concealed in his automobile and thereafter recklessly pointed a cocked and loaded automatic handgun at a Fargo police officer while Light was intoxicated?"
A report on the matter from the Bismarck Tribune is linked here. The attorney had been subject to interim suspension as a result of a related criminal conviction. (Mike Frisch)