Friday, May 8, 2009

The Jackass Decision

The Louisiana Supreme Court has posted its opinion in the case where an attorney in a bitterly-contested case called opposing counsel a "jackass" in open court. Opposing counsel responded: "Your mother is a jackass." The first lawyer then grabbed the second lawyer's suit jacket "and both men fell to the floor." Both were found in contempt of court. The first lawyer was criminally charged and found guilty of simple battery.

The first lawyer was suspended for six months, a downward departure from the proposed year and a day suspension of the disciplinary board. The second lawyer received a public reprimand. A dissent would impose the year and a day suspension on the first lawyer: "[The attorney] exchanged vulgarities with [opposing counsel] in open court. [He] also was convicted of the crime of simple battery committed upon [opposing counsel] during the same hearing in open court. A lawyer who turns a verbal argument into a physical encounter is cupable as an aggressor, warranting a significant period of actual suspension." (Mike Frisch)

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

Employer Disbarred, Employee Denied Admission

The Louisiana Supreme Court disbarred an attorney who had facilitated the unauthorized practice of law by an unlicensed employee. The employee represented clients in depositions and participated in settlement conferences. The conduct took place after the employee had graduated from law school and passed the bar, but admission had not been granted on character and fitness grounds. 

 We recently had reported that the court had denied bar admission to the employee based on its findings of unauthorized practice. (Mike Frisch)

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

Pro Bono Attorneys May Receive Attorney's Fees

The Maryland Court of Special Appeals has held that attorney's fees may be awarded in family law cases even though the legal services were performed by a non-profit legal services organization. The court concluded that important policy considerations weigh in favor of such fee awards, here made to the House of Ruth. Relying on language from a Montana case, "the 'principle of providing equal access of justice to all' warrants the award of attorney's fees to persons represented by legal services organizations or a pro bono attorney."

...we hold that a court may, in its discretion and after considering the requisite statutory factors, award reasonable attorney's fees in a case where a party is represented by a non-profit legal services organization, or a pro bono attorney, irrespective of whether a fee agreement exists between the client and the attorney.

(Mike Frisch)

May 8, 2009 in Billable Hours | Permalink | Comments (0) | TrackBack (0)

Grain-Related Nebraska Misconduct Draws Reprimand

The Nebraska Supreme Court imposed a public reprimand of an attorney who had been convicted in federal court of the misdemeanor of making and delivering a writing containing a known false statement.

The lawyer represented (and served on the board) of a bank. One of the bank's customers ("CLN") operated a grain elevator. The conduct had occurred in 1996, when grain prices were at an historic high. Farmers sought to lock into the high prices for future years utilizing "hedge-to-arrive" ("HTA") contracts to price grain for future delivery. The bank loaned money to CLN based on the HTA contracts. The false statements were made in addenda presented to farmers who had signed the HTA contracts and who later lost money and were sued. Some of the farmers claimed that CLN had misrepresented the addendum to imply that they would not be personally liable.

A federal investigation led to a multimember conspiracy indictment. The attorney pled to a single misdemeanor count. The court here noted that the conviction conclusively established the underlying conduct. However, the actions took place 13 years ago, were an isolated incident in a 27 year career and there was significant character evidence presented on behalf of the attorney. The attorney also had helped banking investigators sort out the mess and cooperated in the disciplinary investigation. Thus, public reprimand was the appropriate sanction. (Mike Frisch)

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

The Invisible Hand Meets the Internal Point of View: The Strange Mish-Mash of Law & Economics

Posted by Jeff Lipshaw

Richard Posner published an eminently sensible analysis of the bursting of the credit bubble in the Wall Street Journal the other day (a prelude, I assume, to his new book, The Failure of Capitalism, which he no doubt wrote in a couple nights of intense work).  I'm not sure what's going on in his thinking, but the virtue Images-2 of having what appears to be very few unpublished thoughts is that we ankle-biters have all sorts of grist for the mill when we find changes in thinking or contradictions.  For some reason, it got me thinking about some of the, well, (how should I say this?) odder results of the combination of economics and law, such as Judge Posner's 1993 comment that "[a]t the heart of economic analysis of law is a mystery that is also an embarrassment: how to explain judicial behavior in economic terms. . . .”  In the spirit of Thomas Kuhn's The Structure of Scientific Revolutions, it seemed to me fair to trace this particular convergenceImages of philosophy, science, and economics.  (I've done it before, but more people will read this post in a couple hours than have combined read the essay!)

The image that comes to mind is that game in which you start with one word, and by changing it one letter at a time into a series of different words, you finally end up at a word that is the opposite of, or an ironic twist on, the original word.  Remember what Adam Smith's invisible hand was?  The wealth of nations comes about from individual Images-1 self-interest.  "It is not from the benevolence of the butcher, the brewer, or the baker, that we expect our dinner, but from their regard to their own interest."  That is, each individual doesn't worry about creating a better world, but a better world comes about regardless.  (That's why Judge Posner correctly says that classical microeconomics doesn't try to get inside the head of each actor - it just assumes the actors, as a whole, are rational in seeking their self-interest, like rational frogs.)  But the combination of law and economics has produced (incrementally, I think, like the word game) a "scientific" orthodoxy or paradigm (see Kuhn) in which it's assumed that the butcher, brewer, baker, or frog actually has societal welfare maximization inside his or her head when making decisions.  (Steve Bainbridge expressed this in economic jargon the other day.  Corporate boards don't generally make decisions based on pareto-optimality, i.e., making everybody better off; they make "Kaldor-Hicks" decisions, which means that they are looking to maximize the corporation's share of any consumer surplus without regard to its overall impact on society.  That's what we all do every time we haggle with somebody over the price of the goods or services.)  This transformation (or Kuhnian paradigm) completes itself in models like the justification of contract formalism proffered by Alan Schwartz and Robert Scott (contracting parties really do want to maximize the joint surplus, not their individual share of it), or Ronald Gilson's justification of lawyering, in which he theorizes the only reason lawyers are present is because they have to increase the value of the total deal, not just each party's Kaldor-Hicks share.  I've criticized both of those models in other pieces.

Here's my Kuhnian thesis.  About a hundred years ago, the dominant philosophy of science was logical positivism.  (This was the Vienna Circle.)  The idea was that only the observable had any meaning at all - metaphysics was meaningless, including any attempt to posit a priori concepts like causation in the explanation of the world.  In other words, the only appropriate tools in the scientific tool box were observations of regularities, and the use of deductive logic.  The logical positivists viewed any attempt to explain one event in terms of another by way of "causation," for example, as without meaning.  From this basis, Carl Hempel developed his "covering laws" thesis, Popper rejected the verification principle in favor of falsification, and so on.  The point is that philosophers of science were rejecting Kantian metaphysics in favor of a strict empiricism.  What we want to do is identify the regularities, not try to explain why they are occurring.

I don't think it's a coincidence that the concepts of legal positivism were developing at about the same time.  Hans Kelsen developed his "Pure Theory of Law" to identify positive law, but it turned on neo-Kantian metaphysics expressed in the fundamental Grundnorm, an a priori concept (i.e., one accessible to us merely by reason, and preceding our experience of the world) by which physical events took on legal consequence.  H.L.A. Hart's positivism put aside the metaphysics, but substituted the Rule of Recognition, and the "internal point of view."  That's the key move:  the melding of the objective and observable (i.e., positive) with the subjective and internal.  Note the paradox that is now simply ignored.  We observe people stopping at red lights and going on green lights, but that only tells us there's a norm.  What makes it law, objectively and positively, is the subjective view of the individual from the internal point of view - the placement of the traffic light traces back to a "Rule of Recognition" by which the subjective actor recognizes the light has having the force of law.

So, economics is a science in the logical positivist tradition.  It ought not try to speculate why things are happening, but to explain or predict regularities.  If marginal costs exceed marginal revenues, generally the firm will shut down production.  If interest rates go down, generally demand for houses will go up.  The explanation of law, on the other hand, in the positivist tradition at least, demands that we look at the internal point of view; otherwise we may be studying norms and not law.  Note again that there is a metaphysical paradox that Hartian legal positivism just doesn't contemplate.  The incremental result of combining the two - the external point of view of economics and the internal point of view of law - is the mish-mash in which, against all intuitive good sense, the theory demands (see Schwartz and Scott or Gilson as evidence) individual actors incorporate the external point of view in their internal motivations!

To me, reading these accounts of motivation is as strange as if reading a theorist in quantum mechanics who felt obliged to explain the individual motivations of the electrons versus merely predicting where they'd be.

May 8, 2009 in Economics, Law & Society | Permalink | Comments (3) | TrackBack (0)

Henderson's Hierarchy of Blogging

[Posted by Bill Henderson, crossposted to ELS Blog]

Regrettably, I have not posted a substantive blog post since Dec. 16, 2008. Although few things are more enjoyable than blogging (primarily because blogging relies heavily on reading and thinking), over the last several months I have been swallowed up by other priorities.   To convey what happened, I have created Henderson's Hierarchy of Blogging, which is a shameless rip-off of Maslow's Hierarchy of Needs, a staple of undergraduate education during the '70s and '80s.

For the last five months, I have spent most of my time toggling between Levels 1 and 2.  On a good day, I broke into Level 3.  I desperately longed for my Level 5 days--reading, thinking, and blogging.   

The most substantial activity over the last five months has been Indiana's new 4-credit 1L Legal Professions course.  In my case, this included two sections of 50 students each, a wide array of new teaching materials and assessment methods, organizing outside speakers for class, meeting with students, and participating in weekly instructor meetings.  It was a grueling but highly rewarding experience.  Suffice to say that my students, through their six and seven member Practice Groups, did some immensely creative that far exceeded my expectations.   I was bowled over by the power of group intelligence--far beyond what a mere individual could accomplish.  Moreover, I learned a huge amount from my colleagues as we taught the same materials, often in very different ways.

Another major commitment was the organization of FutureFirm 1.0, a "collaborative competition held at Indiana University Maurer School of Law on April 17-19.  Starting with a fact pattern for the fictional law firm of Marbury & Madison LLP, four teams of ten players (each comprised of four actual law firm partners, three actual in-house lawyers, and three actual associates/law students) worked over the weekend to formulate a new law firm model that would enable the firm to "survive and thrive over the next 20 years."  FutureFirm 1.0 was a hugely successful event, thanks in no small measure to the expert facilitation by Anthony Kearns, the national risk manager for the Legal Practitioners Liability Committee in Austrialia.  Hildebrandt made the weekend especially interesting by putting up $15,000 in prize money. [Lots more on this later.]

With my few hours of remaining time, I kept some travel and writing commitments, ate a few meals with my family, but generally fell woefully behind in my non-student email and virtually all other facets of my life.   To the legions of people I have disappointed/irritated over the last five months, please accept my apologies.   In another week, I hope to be back to some modicum of Level 4/5 activity.   

May 8, 2009 | Permalink | Comments (0) | TrackBack (0)

Thursday, May 7, 2009

The Coverup, Not the Crime

From the Ohio Supreme Court:

The Supreme Court of Ohio has imposed a one-year license suspension, with the final six months of that term stayed on conditions, against the license of Cleveland attorney Jeffrey F. Slavin for professional misconduct in his handling of a personal injury action he agreed to file on behalf of a client.

The Court adopted findings by the Board of Commissioners on Grievances & Discipline that Slavin missed the statute of limitations (time limit) for filing suit on behalf of his client, and then tried to conceal his neglect by falsely telling the client the claim had been settled and paying the alleged “settlement” from his own funds. When the Cleveland Bar Association contacted Slavin in response to a grievance filed by the client, Slavin initially lied to the investigator about the alleged settlement of his client’s case. Slavin also later admitted that he had improperly commingled his own funds with moneys held for clients in his law office trust account.

The Court agreed with the board’s conclusions that Slavin had violated the state attorney discipline rules that prohibit neglect of an entrusted client legal matter; failure to maintain client funds in a separate, identifiable trust account; engaging in conduct involving fraud, deceit, dishonesty or misrepresentation; and engaging in conduct that reflects adversely on an attorney’s fitness to practice. 

Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton, Maureen O’Connor, Judith Ann Lanzinger and Robert R. Cupp voted to impose a one-year license suspension with the final six months stayed on condition that Slavin commit no further misconduct. Justices Paul E. Pfeifer and Terrence O’Donnell dissented, indicating that they would impose a one-year suspension but would conditionally stay the entire 12 months.

The practice pointer here is that, unfortunately, neglect or malpractice does sometimes happen. When it does, the only course is to promptly acknowledge and deal with the problem to the best of one's ability. Lying to the client only makes the situation far worse when the bar comes calling.

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

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

Absent Class Member Denied Further Discovery Into Counsel's Files

The New York Court of Appeals has held that "the class counsel-absent member relationship is simply too unlike the traditional attorney-client relationship to support extending the Sage Realty presumption to absent class members." The presumption of the prior case was a right to access to a law firm's case files at termination of the representation. The case involved malpractice claims brought by the absent member against the Milberg Weiss firm. In denying further file access, the court states:

As the Appellate Division observed...the District Court long ago granted [plaintiff] access to the 23 boxes that apparently triggered his suspicions of fraud in the first place. When [he] was unable to convince the District Court that anything in the boxes, in fact, suggested fraud, the Judge declined to order further discovery or to reopen the 2003 settlement. The District responsible for protecting the interests of absent class members, which includes monitoring the adequacy of class counsel's performance. We cannot say that the Appellate Division abused its discretion by, in effect, declining to second-guess the District Court's judgments.

(Mike Frisch)

May 7, 2009 in Clients | Permalink | Comments (0) | TrackBack (0)

David Souter's Pen; FIU And The Sunshine Band

Posted by Alan Childress

Two interesting stories (to me) around the web worth pointing to:  (1) Chris Zorn at Empirical Legal Studies Blog shares his assessment of the brand of fountain pen traditionally used by David Souter.  I have to figure that at least Jeff would be interested in such a Luddite-like story.  Souter likes the "Esterbrook" model, which is ironic in a sort of inside-baseball way.

And (2) Due to state sunshine laws, Florida International University is doing a dean search in public, and one reported and characterized by the general press at that.  Recipe for absolutely zero understanding of the reality of that situation, and why would you put yourself through this sunshiney grinder just to be a dean?

Update:  I have added a third:  Deven Desai gave the con to Robin Paul Malloy over at Concurring Opinions -- a post in which Robin describes his work on law, the theory of "property," creativity, and entrepreneurship.  Robin recently presented at the University of Wisconsin workshop, as did Deven.  I think Jeff was there too, so he should tell us what he himself said there, when he gets the chance.

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

Wednesday, May 6, 2009

"An Emotionally Frazzled State"

An Arizona hearing officer has recommended that a consent agreement for a 30 day suspension followed by two years probation be imposed in a matter in which the lawyer represented the husband in a custody dispute. The matter was complicated by the fact that only the father was a U.S. citizen. On a scheduled hearing day, the judge asked the lawyer if he was ready to proceed for three hours. He falsely responded that he had a scheduled court matter elsewhere. The judge later checked and discovered the false assertion.

At a contempt proceeding, the lawyer claimed marital problems and the theft of his briefcase from his car the night before the custody hearing: "so I was in an emotionally frazzled state during the hearing." The judge had imposed $1,000 fee award in favor of opposing counsel.

The hearing officer here accepts the consent disposition with some misgivings, noting that the lawyer was already on probation for unrelated misconduct at the time that this incident occured. (Mike Frisch)

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

New Encyclopedia Published on Islam, Part of Series on World's Religions

Posted by Alan Childress41Sp7kBk8RL__SL500_AA240_

Frequent commenter Patrick S. O'Donnell passes along this link to purchase the new Facts On File Publishing volume, Encyclopedia of Islam, the newest part of its world's religions series.  This volume's editor is Juan Campo at UC Santa Barbara, and Patrick contributed relevant entries.  (Paperback is here and quite affordable.)  Congrats, Patrick.

May 6, 2009 | Permalink | Comments (3) | TrackBack (0)

No Mitigation For Cocaine Addiction

The majority of the West Virginia Supreme Court of Appeals ordered that an attorney's license be annulled, with any reinstatement conditioned on restitution and satisfactory proof that his drug abuse is being treated and is under control. If so, reinstatement with be on two years of monitored probation. The former prosecutor and public defender had misappropriated funds. the contested issue before the court was the impact of cocaine addiction on professional discipline:

Based upon our review of the record and the arguments of counsel, we find that annulment of Mr. Brown's law license is the appropriate sanction in this case. Mr. Brown stole the money in his client trust account and violated other duties to his client. He clearly acted intentionally and knowingly when he violated the Rules of Professional Conduct. Moreover, as a result of his actions, Mr. Brown's client suffered immediate and actual damages because the subrogation claims against her were not paid.

            While this Court considered alcoholism as a mitigating factor in Hardison, the abuse of an illegal substance is clearly distinguishable. Alcohol is a legal substance; cocaine is not. Thus, an attorney who embarks on the use of an illegal substance in the first instance is knowingly violating the law. Courts in some jurisdictions have absolutely rejected the idea of considering addiction to an illegal substance as a mitigating factor. For example...the Supreme Court of California, disbarring an attorney for misappropriating funds and rejecting his request for mitigation based on his addiction to cocaine and alcohol, stated...

 [C]ocaine use is hardly a mitigating factor. Petitioner became addicted through voluntary use of an illicit drug. . . . Apart from petitioner's subsequent rehabilitative efforts, his use of cocaine increases the danger he presents to the public, the courts, and the reputation of the legal profession. Logically, therefore, it is a factor in aggravation.

Similarly, the District of Columbia Court of Appeals has observed,
 [T]o permit mitigation on grounds of illegal drug use effectively would reward the attorney for illegal conduct occurring after he assumes his professional responsibilities. Such a result would adversely affect the perception of the Bar. Simply stated, people go to jail for conduct that Respondent offers as a mitigating factor. An informed public would find it intolerable that such a lawyer be granted special grace. (citations omitted)             
            Although this Court does not absolutely preclude addiction to illegal drugs as a consideration and while Mr. Brown's actions may have stemmed in part from his cocaine addiction, we simply cannot condone his behavior and cannot accept the Board's recommendation. There is never a valid excuse for stealing client trust funds. “'Misappropriation of funds by an attorney involves moral turpitude; it is an act infected with deceit and dishonesty.'”  An attorney who misappropriates client trust funds not only harms his clients but also undermines the confidence of the public in the legal profession. Therefore, contrary to the Board, we do not find that compelling extenuating circumstances exist in this case which justify a departure from our general rule that “misappropriation or conversion by a lawyer of funds entrusted to his/her care warrants disbarment." (citations omitted).
The dissent would not reject the possibility of mitigation:
           Sometimes we need to mix a little mercy with justice. This lawyer misappropriated his client's funds to support his drug problem. He has since sought treatment and has straightened up his life. An indefinite suspension with the right to petition the Court for reinstatement in three years provides plenty of protection to the public.

            I respectfully feel that annulling this lawyer's license is not an appropriate sanction under the circumstances. The Hearing Panel Subcommittee of the Lawyer Disciplinary Board heard the evidence, considered the demeanor of the witnesses and of Mr. Brown, and made a careful, measured recommendation. I am not persuaded by the majority opinion's reasoning that the recommendations of the Board should be so lightly dismissed.  I therefore dissent.
(Mike Frisch)

May 6, 2009 in Bar Discipline & Process | Permalink | Comments (2) | TrackBack (0)

Perils Of Louisiana Bar Admission

The Louisiana Supreme Court decided three bar admission matters that provide insight into the operation of bar character and fitness requirements.

The first matter involved an applicant's third petition for bar admission was denied by the Louisiana Supreme Court. The court rejected a commissioner's initially favorable recommendation, remanded and agreed with its Committee on Bar Admissions that the applicant's unauthorized practice of law and improper fee sharing agreement with an attorney employer demonstrated a lack of good moral character:

...petitioner negotiated personal injury settlements on behalf of [the lawyer's] clients and represented the clients during recorded statements taken by insurance companies. When performed by a non-lawyer such as petitioner, these tasks constitute the unauthorized practice of law. Moreover, we find petitioner has entered into an impermissible fee sharing arrangement with [the attorney]. Such an arrangement violates Rule 5.4(a) of the Rules of Professional Conduct.

In the second matter, the court, over three dissents, denied admission to an applicant and briefly assigned reasons relating to delinquent credit accounts, a petition for domestic abuse protection filed by his former wife, and "allegations of misconduct by petitioner during law school as well as during his subsequent employment as a judicial law clerk."

The main dissent is far more revealing regarding the underlying facts. The petitioner had participated in law school graduation but was four credit  hours short at the time. He completed three hours that summer and was allowed to write a research paper for the last credit hour. He "resisted and procrastinated" and turned in a paper that the professor found "poorly written and unacceptable." The assignment was completed after more delay. Later, the professor received information that the petitioner had asked someone else to write the paper. The professor had suspicions of a ghost writer but no proof. The main dissenting justice found that the offer had been made in jest.

The main dissent also found insufficient evidence of misconduct while a judicial clerk. The petitioner had cooperated in an investigation of the judge he clerked for arising out of the judge's alcoholism. The petitioner asserted that his termination was pretextual and in retaliation for his cooperation. The dissent found no reliable evidence of misconduct as a judicial clerk.

Two other justices would conditionally admit, noting that the appointed commissioner had recommended admission.

In the third matter, the court granted conditional admission for five years to an applicant who had been denied conditional admission in 2007. The lawyer had disclosed a history of suibstance abuse and ongoing treatment.  (Mike Frisch)

May 6, 2009 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Tuesday, May 5, 2009

Attend Court At Your Own Risk

The Tennessee Court of the Judiciary imposed two public censures of a general sessions judge. One matter involved the judge's order that a citizen observer of court proceedings be taken into custody and forced to submit to a drug test. The test proved negative. The other involved abuse of an attorney who had left the courthouse after leaving a document for filing, which apparently did not require the lawyer to personally appear and which the court characterized as a ministerial act. The judge ordered the attorney to return, threatened contempt and used profanity on the telephone. In order the mollify the judge, the attorney's wife (also an attorney) was forced to leave a dental appointment to appear before the judge. (Mike Frisch)

May 5, 2009 in Judicial Ethics and the Courts | Permalink | Comments (1) | TrackBack (0)

Breach Of Trust Draws Permanent Disbarment

From the web page of the Ohio Supreme Court:

The Supreme Court of Ohio today permanently disbarred attorney Justin Peter Parrish of Rocky River for multiple violations of state attorney discipline rules arising from his misappropriation of funds from a charitable trust and his neglect of a separate legal matter involving other clients.

The Court adopted findings by the Board of Commissioners on Grievances & Discipline that over a 22-month period Parrish abused his position as attorney for the Father Vincent O’Dea Trust to write 15 unauthorized checks to himself and transfer funds from the trust to his own accounts in amounts totaling more than $172,000. Parrish was subsequently convicted of felony theft and has been under an interim license suspension based on that conviction since October 2007.

The Court also adopted disciplinary board findings that Parrish was guilty of professional misconduct by failing to file required documents and make a scheduled appearance in a court case on behalf of a married couple who had retained him, ultimately resulting in a default judgment against his clients and dismissal of their counter-claim against the opposing party.

The Court agreed with the board’s conclusions that Parrish violated, among others, the disciplinary rules that prohibit an attorney from engaging in illegal conduct involving moral turpitude; conduct involving fraud, deceit, dishonesty or misrepresentation; neglect of an entrusted client legal matter and intentionally causing damage or prejudice to a client. In imposing permanent disbarment as the appropriate sanction for his misconduct, the Court noted the aggravating factors that Parrish acted with a dishonest or selfish motive, engaged in a pattern of misconduct involving repeated acts of misappropriation, and caused harm to vulnerable clients.

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

May 5, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Photography Judge

An opinion from the Massachusetts Committee on Judicial Ethics deals with the propriety of a judge who is a landscape photographer to pursue his avocation:

 From your description of what you intend to do, your periodic donation or sale of the fruits of your creative labor after hours does not produce the dangers against which Section 4D(1) is designed to guard. You indicate that your involvement in exhibiting, selling or donating photographs would be limited to weekend hours, and during approved vacation time. You also expect that sales and donation will be modest in terms of volume and value. Your primary interest is in creating, not selling, your art. Provided that your activity does not impinge on the performance of your judicial responsibilities during or after the standard work day you should be able to exhibit and sell your work in the manner you have described. (See e.g. CJE Opinion No. 99-14 concerning consultation on a television legal drama and CJE Opinion No. 2007-3 regarding acting as a softball umpire).

          You should make every effort to ensure that your judicial title is not used to confer any benefit or remuneration that a private party would not receive. Given this admonition you should be circumspect about donating your work to charitable organizations or public institutions for their fund raising events if prospective purchasers are likely to be influenced by your status as a judge. A judge, "shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation." Section 4C(3)(iv). As regards your other questions, you should be able to occasionally sell your work directly or indirectly to private parties in or out of state.

(Mike Frisch)

May 5, 2009 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Cyberspace Artifact Not Misappropriation Of Name

A law firm settled litigation with two departing partners that had been initiated in the wake of the break up. Thereafter, the firm sued the partners for alleged breach of the terms of the settlement. The departing partners claimed breach of the "non-disparagement" clause of the settlement. The North Carolina Court of Appeals affirmed the judgment for the law firm. It rejected a claim of misappropriation of name or likeness based on the alleged failure of the law firm to remove their biographical information from the firm's web page:

...Plaintiffs' uncontradicted evidence established that: (1) shortly after Defendants left the law firm, Plaintiffs directed their technical support service to delete Defendants from the Plaintiffs' website; (2) on 13 September 2005 the technical service deleted Defendants' names and informational pages from Plaintiffs' website; (3) after Defendants were deleted from the website, there was no information about Defendants on the website, and no way to navigate from Plaintiffs' website to information about Hemmings or Stevens, and; (4) after Defendants left Plaintiffs' law firm, Plaintiffs made no use of information about Defendants. This evidence, which showed that Defendants could not prove that Plaintiffs had misappropriated or used Defendants' photographs or biographical information after Defendants quit Plaintiffs' law firm, met Plaintiffs' initial burden of “proving that an essential element of the opposing party's claim is nonexistent, or . . . thatthe opposing party cannot produce evidence to support an essential element of his claim[.]” Collingwood, 324 N.C. at 66, 376 S.E.2d at 427 (citations omitted). This shifted the burden to Defendants to produce evidence showing a genuine issue of material fact regarding their counterclaim.
    Defendants did not produce evidence contradicting Plaintiffs' evidence that, when Plaintiffs instructed the technical support service to delete Defendants from the website, the consultant removed links referring to Defendants from the website. The files for these documents were stored as html code files on another computer, called a server. Plaintiffs did not own the server, and no evidence was presented to suggest that Plaintiffs intended to preserve a copy of the deleted files. But, because the actual html code was not removed from the server, it was theoretically possible to use Google or another search engine to retrieve and view the deleted pages. Defendants offered no evidence that any member of the public had accessed these files.
    Defendants did not allege that Plaintiffs were negligent, but instead brought a claim for the intentional tort of invasion of privacy. Assuming, arguendo, that after Plaintiffs removed all information and links pertaining to Defendants from Plaintiffs' website, an internet search engine might return links to some of the deleted biographical pages, Defendants fail to articulate how this would constitute misappropriation of their image or biographies for any commercial purpose:
        [a]ccording to [Defendant] he was able to access [documents deleted from Plaintiffs'website] by entering the extended URL address . . . [Defendant] claims he was also able to access the [documents] through various website searches conducted through Google. . . . [Defendant] was able to unearth what is for all practical purposes a cyberspace artifact[.] . . . Indeed, it is undisputed that after the [13 September file deletions] the link[s] on [Plaintiffs'] website to [Defendants] . . . [were] deleted[.] . . . Beyond saying that his Google searches took him to [a] link that took him to [a copy of the deleted files,] . . . [Defendant] explains nothing that would constitute clear and convincing evidence of contumacy by [Plaintiffs].

(Mike Frisch)

May 5, 2009 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, May 4, 2009

Executions And Medical Discipline

The North Carolina Supreme Court has held that a statement from the Medical Board condemning the presence of a physican at an execution was properly enjoined. Physcians may be present without threat of disciplinary action:

This case presents four issues: First, whether a justiciable case or controversy exists between plaintiffs and the Medical Board; second, whether any such case or controversy is ripe for decision; third, whether the trial court impermissibly made a finding of fact without accepting evidence from defendant; and fourth, whether the Position Statement [of the Medical Board] is inconsistent with the manifest intent of the General Assembly in enacting N.C.G.S. § 15-190, which requires a physician to be present at all executions. We hold that plaintiffs have standing, that this case is ripe for decision, that the trial court did not make an improper finding of fact, and that the Position Statement is inconsistent with N.C.G.S. § 15-190. Accordingly, we affirm the order of the trial court.

The Medical Board had issued the Position Statement in which it had concluded that a physician's participation in an execution by lethal injection was a departure from the ethics of the medical profession. The court's majority concluded that the legislative mandate that a physician be present trumped the authority of the board to impose discipline:

 ...the General Assembly has specifically envisioned some sort of medical participation in the execution process, and defendant's Position Statement runs afoul of N.C.G.S. § 15-190 by completely prohibiting physician participation in executions. While defendant would retain disciplinary power over a licensed medical doctor who participates in an execution, see N.C.G.S. § 90-14, defendant may not discipline or threaten discipline against its licensees solely for participating in the execution alone. To allow defendant to discipline its licensees for mere participation would elevate the created Medical Board over the creator General Assembly.    Moreover, the language of the Protocol itself, as submitted by the Warden and approved by the Governor and Council of State does not overstep the statutory authority of those officials to determine and approve the exact means of execution. Exceptional care was taken when drafting the Protocol to ensure that it would not cause a physician to violate the Hippocratic Oath. Under the Protocol, the physician is not required to administer the lethal agents, nor is the physician required to do anything other than “monitor the essential body functions of the condemned inmate and [ ] notify the Warden immediately upon his or her determination that the inmate shows signs of undue pain or suffering.” The physician is given authority in the Protocol to ensure that no undue harm is inflicted on the condemned inmate: if the physician determines there is undue pain or suffering, “[t]he Warden will then stop the execution.” Certainly, the Protocol's requirement that a physician help prevent “undue pain or suffering” is consistent with the physician's oath to “do no harm.” The Warden is well within his authority to require such monitoring, and defendant is without power to prevent the Warden from doing so. Defendant's assignments of error are overruled.

A dissent:

 Because I believe that changes in statutory language and definitions are fundamentally tasks for the legislature, not the courts, I respectfully dissent. Here, the General Assembly has given defendant, the North Carolina Medical Board, broad authority to discipline physicians, and in my view, the nonbinding Position Statement at issue comports with that authority. The Statement is also entirely consistent with the requirements of N.C.G.S. §§ 15-190 and -192, in that it indicates that a physician will not be disciplined for “merely being 'present' during an execution,” as required by the plain language of those statutes. Nevertheless, the majority's holding here oversteps our role by fashioning a definition of “present” that would create a conflict between two governmental entities where there currently is none. I would instead find that no genuine case or controversy appropriate for the courts exists between these parties.

(Mike Frisch)

May 4, 2009 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Duty To Notify Client Of Suspension

An attorney who had accepted a custody case shorttly before his December 12, 2006 suspension for 60 days by the North Dakota Supreme Court drew a second 60 day suspension by the court for the misconduct. After recieving the first suspension order, the attorney failed to advise the clients (a mother and daughter) of the suspension. He contended that he was not obligated to notify them because the summons and complaint he had drafted on their behalf had not yet been served and the matter was thus not "pending."

The court described what happened next:

Karlene McLaurin [the mother] said she sent a check to Stensland for $2800 on January 2, 2007 and Stensland cashed the check on January 10, 2007. Karlene McLaurin stated she became concerned about choosing Stensland for her attorney because she continually tried to contact him and no one answered his phone. Shortly thereafter, Karlene McLaurin testified she heard Stensland was disbarred. Karlene McLaurin said she wrote Stensland a letter, specifically asking him if he had been disbarred. Stensland replied to Karlene McLaurin, denying he was disbarred, but he failed to inform Karlene McLaurin he was suspended from the practice of law. Karlene McLaurin did not become aware of Stensland's suspension until she filed a complaint with the disciplinary board and the disciplinary board sent her a letter informing her Stensland had been suspended from the practice of law from January 15, 2007 until March 16, 2007.

The court here rejected the notion that the lawyer had no obligation to notify the clients of the suspension:

Stensland's argument that "pending matters" includes only those actions that are filed or that have been commenced by service of the summons is unduly restrictive. His argument ignores that N.D.R. Lawyer Discipl. 6.3(A) must be construed and applied with equal meaning to lawyers with litigation and non-litigation practices. We adopt the hearing panel's determination that Stensland's narrow interpretation of the phrase "pending matters" was not credible and that Stensland was required to provide the McLaurins with notice of his suspension because their case constituted a "pending matter."

(Mike Frisch)

May 4, 2009 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Voluntary Discipline Petition Rejected

The Georgia Supreme Court followed the State Bar's recommendation to reject an attorney's petition for voluntary discipline. The attorney had admitted escrow rule violations and sought "no more than a public reprimand as discipline for his admitted violations..."

The court concluded that the petition failed to include sufficient information to determine appropriate discipline. Also, there were "inconsistencies regarding whether [the attorney's] client was aware that [the attorney] was borrowing the client's funds and vague references to other actions by [the attorney] involving joint bank accounts and personal expenses being funneled through [the attorney's] escrow accounts, all of which are troubling." (Mike Frisch)

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