Friday, January 9, 2009

More Transparency In Judicial Discipline Proposed

A subcommittee of an Article 6 Commission of the Nevada Supreme Court has proposed modifications of the rules and procedures governing judicial discipline. The subcommittee seeks amendments that will make the process more transparent:

To increase transparency, the Article 6 Commission subcommittee recommends:

  • Allowing those who file complaints against judges to discuss those matters publicly. Currently complainants are under the threat of contempt if they reveal the existence of their complaints.
  • Allowing the Commission on Judicial Discipline to disclose information about some cases in certain circumstances – such as when details become public through other sources,
  • Requiring the Commission on Judicial Discipline to prepare annual reports detailing the disposition of cases, and
  • Requiring the Commission on Judicial Discipline to tell those who filed complaints how the cases were resolved.

The report also recommends:

  • Authorizing letters of caution and private admonishments for relatively minor issues,
  • Adding public admonishment and public reprimand to the list of allowed forms of discipline (joining fines, suspension, and removal),
  • Requiring notice to a judge when a case requires further investigations, but with protections against retaliation for complainants and others,
  • Providing for notice and a public hearing before a judge can be suspended,
  • Amending the Constitution to allow separation of the Commission on Judicial Discipline’s investigative and adjudicative functions.

The 154 page report will now be considered by the full commission. (Mike Frisch)

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

Suspension Imposed Rather Than Reprimand

A justice of the Massachusetts Supreme Judicial Court imposed a 30 day suspension with a requirement that the attorney take and pass a professional responsibility examination within 18 months in a case that involved misconduct committed while under extraordinarily stressful circumstances:

Bar counsel filed a petition for discipline alleging that Stella B. Angwafo, the respondent, intentionally misrepresented the amount of her assets on her personal financial statement filed in the Probate and Family Court, and that she intentionally misrepresented her marital status in a motion for child support and continued health insurance coverage for her child and herself. After an evidentiary hearing, a special hearing officer found that the respondent made intentional misrepresentations to the Probate and Family Court by (1) misrepresenting on her financial statement that she had no bank accounts when in fact she did; and (2) misrepresenting in a motion for child support and continued health insurance coverage that she was married when in fact she was not. The special hearing officer found, in mitigation, that at the time the respondent misrepresented her assets she experienced fear and stress as a result of domestic abuse. He recommended that she be suspended from the practice of law for two months.

The respondent appealed to the Board of Bar Overseers (board). The board adopted the special hearing officer's findings of fact and conclusions of law, but concluded the special hearing officer had "vastly understate[d]" the type of stress experienced by the respondent at the time she completed the financial statement in question. The special hearing officer had compared it to the stress of practicing law. The board noted that the stress associated with the practice of law is "typical," and entitled to little weight in the determination of a sanction, see Matter of Alter, 389 Mass. 153, 156-157 (1983), but concluded that there was nothing "typical" about the fear and stress felt by the respondent. When she filled out her financial statement the respondent was sitting beside the man who was the father of her three year old son and who recently had driven his Toyota Land Cruiser into the driver's side of her Toyota Camry sedan while she and her son were inside. The board assessed her fear as "understandable terror," "transcend[ing] 'typical' mitigation," and recommended a public reprimand.

The court imposed a suspension because, in its view:

The mitigating circumstances here are very powerful. The respondent had been subject to what the special hearing officer and the board found was a "frightening and grave incident of abuse" on July 13, 2001, following nearly six years of physical and emotional abuse. At the time the respondent prepared her financial statement of July 27, a family service officer of the Probate and Family Court directed the respondent and Taboh to the same area. This should not have happened. We find this particularly disturbing, and agree with both the special hearing officer and the board that she was under considerable stress and fear while preparing the financial statement, placed about five feet away from her abuser by the very court from whom she sought protection.

Nevertheless, we cannot overlook the fact that the respondent had enough presence of mind to itemize her school loans and provide a total of liabilities, while providing utterly no information as to her bank accounts. She was aware of the existence of her accounts and she at least could have mentioned the names of the banks, and perhaps placed a question mark after each name. Instead, she omitted all reference to them. Although the respondent was, in effect, exposed to her abuser at precisely the time she was preparing her financial statement, she provided all the requested information except that which she seemingly thought was the weakest link in her case for child support: her bank accounts. The special hearing officer wrestled with this. In the final analysis he recommended a two-month suspension because he found that the respondent's financial statement was more the product of her intentionality than it was carelessness, fear, or stress. We accept this finding.


The case is Matter of Angwafo, decided today. (Mike Frisch)

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

Detailed Probation Conditions

An attorney who had failed to diligently pursue an estate and trust matter was placed on probation for three years by the Kansas Supreme Court. The attorney had also initially failed to cooperate in the disciplinary matter, but eventually submitted a detailed plan of probation that the court adopted:

       "1.  Limitation of Practice. The Respondent shall limit his practice to a part-time practice and shall consist of cases assigned to him by Jared Holste. 

       "2.  Practice Supervision. The Respondent's practice will be supervised by Jared Holste. The Respondent and Mr. Holste shall prepare a monthly report to the Disciplinary Administrator's office regarding the Respondent's status on probation. The monthly report shall include a current case list which shall identify each case by name, set forth all deadlines scheduled by the court, a statement regarding whether each deadline for the month was met, and an explanation if a continuance was requested. In the event a deadline is missed, the Respondent and Mr. Holste shall immediately report the missed deadline to the Disciplinary Administrator's office.

       "3.  Office Procedures. The Respondent and Mr. Holste shall develop written office procedures and provide a copy of the written office procedures to the Disciplinary Administrator within 30 days of the date of this report. The written office procedures shall address internal office procedures as well as how Mr. Holste intends to monitor the Respondent's compliance with the terms and conditions of probation, specifically including the limitation of the Respondent's practice.

       "4.  Communication. The Respondent shall make every effort to return telephone calls within two business days of receipt.

       "5.  Professional Liability Insurance. The Respondent shall continue to maintain professional liability insurance.

       "6.  Continued Cooperation. The Respondent shall continue to cooperate with the Disciplinary Administrator's office. If the Disciplinary Administrator's office requests any additional information, the Respondent shall timely provide such information.

       "7.  Additional Violations. The Respondent shall not violate the terms of his probation or the provisions of the Kansas Rules of Professional Conduct. In the event that the Respondent violates any of the terms of probation or any of the provisions of the Kansas Rules of Professional Conduct at any time during the probationary period, the Respondent shall immediately report such violation to the Disciplinary Administrator. The Disciplinary Administrator shall take immediate action directing the Respondent to show cause why the probation should not be revoked.

As a former bar prosecutor, I always look at probation conditions from a viewpoint of enforceability. How do you charge a violation of provision #4? (Mike Frisch)

January 9, 2009 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Reinstatement Granted

An attorney who had been disbarred on consent in Pennsylvania after practicing for about ten years was reinstated almost twenty years. The Supreme Court accepted the recommendation of its Disciplinary Board favoring reinstatement, concluding that the misconduct (in two matters, one of which involve joining a client in a scheme to defraud) was not so serious as to create a permanent bar to the return to practice. The case provides a road map of the type of evidence that can lead back to the law. (Mike Frisch)

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

Thursday, January 8, 2009

More Sleeping Lawyer As Not Ineffective Assistance, This Time In Arkansas

Posted by Alan Childress

The blog Law of Criminal Defense reports on an Arkansas Supreme Court opinion decided today which finds no ineffective assistance of counsel for [yet another] sleeping defense counsel.  The blog's editor, John Wesley Hall Jr., notes that it will be difficult to find reversible prejudice on the facts since three other defense attorneys were not asleep.  Lawyers can step away, as long as trial is covered, and no one finds huge prejudice in the missing attorney. 

True, but there is something different signaled to a judge and jury about an attorney who cannot stay awake in a capital case.  At any rate, Hall astutely adds that any case that relies on a sleeping lawyer opinion from the Tex.Crim.App. is suspect itself.

Add this case to Andy Perlman's list at Legal Ethics Forum of examples of what is amazingly sad about our criminal justice system. 

January 8, 2009 in The Practice | Permalink | Comments (1) | TrackBack (0)

Witness Excused

From the web page of the Virginia State Bar:

On November 21, 2008, a three-judge panel in the Roanoke County Circuit Court imposed a public reprimand on [an attorney] for violating a professional rule that governs fairness to opposing party and counsel. [The attorney] released a witness in a custody dispute from a subpoena issued by opposing counsel. This was an agreed disposition.

(Mike Frisch)

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

A Kafkaesque Maze

The New York State Commission on Judicial Conduct imposed public discipline (an admonition) on a city court judge who had sought support for a State Supreme Court run from a lawyer during a court proceeding. The commission found:

By soliciting support for her candidacy for Supreme Court from an attorney in her court, moments before the attorney was scheduled to appear before her with a client, respondent engaged in conduct that compromised her impartiality and independence and promoted her political interests in the courtroom.  Such behavior is inconsistent with the high ethical standards required of judges.

Respondent has acknowledged that she discussed her candidacy at the bench with attorney Eftihia Bourtis, whom she had telephoned earlier to ask for support.  (Respondent had left a message since the attorney was on vacation.)  Although respondent disputes that she called the attorney to the bench, respondent acknowledges that at the bench she stated that she had called about the campaign and she asked if Ms. Bourtis would support her.  Ms. Bourtis, who testified that the request made her “uncomfortable,” agreed to support respondent and to allow the campaign to use her name.  As Ms. Bourtis testified, under the circumstances “I felt that I had to say yes.”

A dissenting opinion characterizes the rules governing campaign contributions as a "Kafkaesque maze" and would impose private discipline:

Common understanding should dictate that it is improper to solicit support from the bench (just as it should be clear that judges should not have contributors appear before them).  But judges are allowed to solicit “support” virtually anywhere from lawyers who have cases pending before the court.  In this case, Judge Yacknin acknowledged during the investigation that she personally contacted 100-130 attorneys to  solicit their support, and the Commission staff made no argument that such conduct was anything other than business as usual.  As clear as it is that solicitation from the bench is improper, especially when a client is sitting in the courtroom, I fail to see a meaningful distinction between such solicitation and repeated and insistent calls for campaign support from judges to individual lawyers who regularly appear before the judge.  In either case coercion, and the whiff of bribery, are palpable.  In light of this overall scheme that allows lawyers to finance judicial campaigns, it seems otherworldly to punish Judge Yacknin for her particular transgression.

The entire system of regulating judicial campaigns is riddled with hypocrisy.  It reduces judges to supplicants of the lawyers and clients who should hold them in high esteem.  Expressing ad hoc outrage when one judge happens to come to our attention for her obtuse behavior feels like fiddling while Rome burns.  We really deserve better and the independence of our judiciary demands much more.

I refuse to make Judge Yacknin a posterperson for judicial campaign misconduct even though, as she forthrightly acknowledges, she clearly should not have done what she did.  Therefore, I dissent and recommend that she be given a private caution. 

(Mike Frisch)

January 8, 2009 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

By Writ Or Appeal

The Florida Supreme Court suspended a lawyer for 91 days (requiring him to demonstrate rehabilitation) and published an opinion to "articulate our reasoning so that other members of The Florida Bar can avoid [his] misconduct."

The lawyer defended a client charged with felony driving on a revoked license and in an unregistered vehicle. The judge was 16 minutes late for the time set for trial. The jury was already seated when the judge took the bench. The lawyer sought a sidebar conference to entertain motions. The judge denied him permission to approach the bench and told him that motions would be heard after vior dire. The lawyer continued to interrupt the proceedings and was discouteous and disrespectful, and continued to attack the judge in voir dire of the prospective jurors. The client fired the lawyer as a result and the case was continued. The judge sent the matter to the Florida Bar in lieu of a contempt proceeding. The court here rejected a referee's recommendation of a public reprimand with supervised probation:

[his] misconduct was egregious. He was disrespectful and confrontational with the presiding judge in an ongoing courtroom proceeding in the presence of the pool of prospective jurors in a criminal case. Regardless of any perceived provocation by the judge, [he] responded inappropriately by engaging in a protracted challenge to the court's authority. His ethical alternative, if he believed the trial court had erred, was by writ or appeal.

The lawyer had been "publicly reprimanded twice before for serious misconduct." A dissent would impose the discipline recommended by the referee on the view that lawyer and judge had "both fueled the fire." (Mike Frisch)

January 8, 2009 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)


The Minnesota Supreme Court had reinistated an attorney who had been suspended for 90 days. The reinstatement order required the attorney to take and pass the professional responsibility portion of the state bar exam within a year of reinstatement. Today, the court again suspended the lawyer for his failure to provide evidence that he had passed the exam. (Mike Frisch)

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

Satyam and Governance

Posted by Jeff Lipshaw

Once again, our mouths are agape as a putative paragon of "good governance" - the Indian outsourcing firm, Satyam - turns out to be rife with out-and-out fraud.  Larry Cunningham has a nice post on this over at Concurring Opinions.

Two quick reactions.

One.  It really is a mystery how somebody who is audited by PWC gins up a billion dollars in fake cash.  My wife has been an inactive CPA since about 1983, and her comment this morning was:  "I haven't been on an audit in over 25 years, but I'd still know how to audit cash!"

Two.  Back in October, I did a sarcastic little post on whether having good governance somehow insulated firms from the consequences of the financial tsunami.  One of the exemplar firms in my little survey was none other than Satyam.  I took the list from a group I had never heard of, but unless it also is lying, it seems to have the endorsement of outfits like Bloomberg, NYSE Euronext, Arnold & Porter, KPMG, etc. (A sidebar WSJ article refers to another London good governance rating outfit that also extolled Satyam, but intimated that the rating outfit itself was a little corrupt.  My point is that Satyam seemed to have fooled everybody, even those who were on the up and up.) I have suggested many times that attempts to legislate good governance by things like independence rules are based on tenuous cause/effect relationships.  Since that post, I tried to reconcile this with my own intuition that, indeed, something does stink if the board consists of a bunch of people who receive financial benefits (other than their fees) from the institution they purport to govern. 

What I realized is that the relationship between rules ("entrenched generalizations" in Fred Schauer's coinage) and consequences is not symmetrical.  We may reasonably generalize that when a director's public relations firm, for example, receives $500,000 a year in business from the company on whose board the director sits, there is a plausible enough connection between the conflict of interest and bad judgment to institute a financial independence rule (this is good ol' rule utilitarianism).  The fallacy is in thinking that similar rules will by themselves create good judgment.  That, of course, is the problem with much of governance reform.  The rules will probably inoculate the board against one kind of disease, but it's otherwise no assurance of good health.

January 8, 2009 in Law & Business | Permalink | Comments (3) | TrackBack (0)

The Stress Of Practice

An Arizona hearing officer has recommended a 30 day suspension followed by two years probation in a disciplinary matter brought against an attorney retained to defend a divorce. The client paid a $5,000 retainer to "cover all [his] divorce" and discharged the lawyer less than a month later. The lawyer treated the payment as a flat fee but had no written retainer agreement, resulting in "significant confusion" regarding the fee situation. The lawyer promised a partial refund and never provided an accounting. Eventually, the client recived $1,000 in cash from the lawyer, who testified that the amount returned "...was just a number. I knew he had at least a thousand coming."

The hearing officer found that the lawyer had failed to return an unearned fee and provide an accounting of the fee to the client. The attorney has been the subject of five previous orders of discipline but has never been suspended from practice (all five orders--entered from 2002 to 2008-- imposed probation).

As to sanction :

This is a very challenging and somwhat unique case. The Respondent has a very compelling life story. Respondent came from very humble origins and has worked very, very hard under extremely adverse conditions to not only get her education, but also became an attorney. Respondent also presents herself as a very pleasant and well intentioned person. Respondent's character witness praised Respondent very highly for her honesty and her competency.


...her testimony indicates she had very little respect for [the client], or his right to an accounting and to a refund. Respondent was worse than just cavalier about her responsibility to [the client], she seemed to be unaware and unconcerned. Further, her practice of giving a complex legal document to her clients and dismissing them to figure it out is shocking.

The hearing officer  notes that he "was a solo practicioner for several years, and understands the stress and strain of trying to keep a solo practice open and thriving." He recommends a mental health evaluation of the attorney and that she not be permitted to practice as a solo during the period of probation. She has been in a solo practice since her admission in 1997. (Mike Frisch)

January 8, 2009 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Wednesday, January 7, 2009

Disbarment For First Degree Murder

From the web page of the Texas Sate Bar:

On December 23, 2008 the Board of Disciplinary Appeals signed a final judgment disbarring Troy, Virginia attorney Piper A. Rountree, 48, State Bar of Texas Card No. 17323050. On July 13, 2007, the Board signed an Interlocutory Order suspending Rountree from the practice of law pending the appeal of her criminal conviction for First Degree Murder/F in violation of § 18.2-32 of the Code of Virginia (Cause No. CR04-5364-00) and Use of a Firearm during the Commission of a Felony/F in violation of § 18.2-53.1 of the Code of Virginia (Cause No. CR04-5365-00), Intentional Crimes as defined in the Texas Rules of Disciplinary Procedure , in styled, Commonwealth of Virginia v. Piper Ann Rountree. Rountree was sentenced to life in prison in Cause No. CR04-5364-00 and sentenced to three years in prison in Cause No. CR04-5365-00. In addition, she was ordered to pay $3545.00 in costs. On July 24, 2007, the Court of Appeals of Virginia affirmed Rountree’s conviction. On or about October 6, 2008, the Supreme Court of the United States denied Rountree’s Petition for Writ of Certiorari to the Supreme Court of Virginia and the conviction is final.

The underlying criminal case has received a good deal of publicity. (Mike Frisch)

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

No Restitution, No Reinstatement

The decision whether or not to reinstate a suspended or disbarred lawyer involves a balancing between our interest in the possibility of redemption with our concern that past lapses may reflect the danger of future harm. The balance must always be struck with an understanding that any decision regarding reinstatement must be in the public interest and not diminish the integrity of the legal profession. Courts tend to list a series of factors governing the reinstatement decision, evaluate those factors and make the judgment call.

The balancing is on display in a recent recommendation of the Illinois Review Board to the Supreme Court rejecting a hearing board's favorable treatment of a reinstatement petition and sustaining the Administrator's objection. The petitioner had been convicted of conspiracy to defraud insurance companies and been struck from the roll of attorneys in 1988. He unsucessfully petitioned for reinstatement in 2002 and the matter before the review board was filed in 2006. He had failed to make an attempt to identify and make restitution to the defrauded companies:

While we commend Mr. McClurkin for the efforts he has made, the factors that weigh in his favor are not sufficient to justify reinstatement in light of the extremely serious nature of his misconduct and his failure to satisfy his obligation to make restitution or to conclusively show that restitution is impossible. We do not believe that we are placing undue importance upon the factor of restitution, given the supreme court’s holding that it is a condition of reinstatement except in rare instances. See Berkley, 96 Ill.2d at 412, 451 N.E.2d 848. The evidence that Mr. McClurkin presented to the Hearing Board did not clearly and convincingly establish that this is one of those rare instances.

A dissenting member would accept the hearing board's proposal to reinstate or to remand to allow a "further opportunity to establish restitution or its conclusive impossibility." (Mike Frisch)

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

Tuesday, January 6, 2009

Tulane Wins National Championship In NCAA Football

Every year someone does one of those chain-comparisons to declare, like, Slippery Rock the best team in the country.  This year's winner is my Tulane Green Wave.  I know this is off-topic, but believe me Jeff lives for this illogical crap.  [Alan Childress]

January 6, 2009 in Blogging | Permalink | Comments (1) | TrackBack (0)

A Lawyer Speaks About Management

Posted by Jeff Lipshaw

Courtesy of Time, here's the commentary of a lawyer who had never run an organization (other than a law review) about being an effective leader/manager:

I don't think there's some magic trick here. I think I've got a good nose for talent, so I hire really good people. And I've got a pretty healthy ego, so I'm not scared of hiring the smartest people, even when they're smarter than me. And I have a low tolerance of nonsense and turf battles and game-playing, and I send that message very clearly. And so over time, I think, people start trusting each other, and they stay focused on mission, as opposed to personal ambition or grievance. If you've got really smart people who are all focused on the same mission, then usually you can get some things done.

I don't think Jack Welch could say it any better.

January 6, 2009 in Law & Business | Permalink | Comments (0) | TrackBack (0)

Fee Fight Remanded

The New York Appellate Division for the First Judicial Department remanded to a special referee a fee dispute between law partners in a post-dissolution action:

The NSN matter, which was in progress at the time of the firm's dissolution, involved a representation on a contingent basis in a Delaware lawsuit that eventually settled for $6,450,855.16. Defendants correctly assert that in apportioning the fee, the Special Referee improperly applied the formula set forth in the retainer agreement between NSN and the firm, splitting the fee in proportion to his reckoning of pre- and post-dissolution hours, rather than in accordance with Shandell v Katz (supra) (see also Liddle, Robinson & Shoemaker v Shoemaker (12 AD3d 282 [2004]). Although local counsel may have tried the case, it appears that the individual defendant had a significant managerial role, was the point person for client communications, and brokered the settlement in a case that was initially thought to have little value. His contributions cannot be valued in the simplistic manner used by plaintiff's expert and adopted by the Special Referee. Furthermore, the value of a contingency fee case is not its settlement value; rather, "the Referee must evaluate the efforts undertaken by the former law firm prior to the dissolution date, or any other relevant evidence to form a conclusion as to the value of these cases to the law firm on the dissolution date" (see Grant v Heit, 263 AD2d 388, 389 [1999], lv dismissed 93 NY2d 1040 [1999]). Accordingly, we remand for the purpose of apportioning this contingency fee consistent with Shandell v Katz. For similar reasons, we also remand the Phoenix Group matter for a reapportionment of the fee. Here, the evidence shows that at the time of dissolution a fee of at least $1 million was owed the firm for work performed on an hourly basis but was largely uncollectible because Phoenix was insolvent and had no assets; however, some years after the dissolution, owing entirely to defendants' efforts, a payment was made that, after collection fees, amounted to approximately $901,000. On remand, there should be explicit fact-finding as to whether the Phoenix Group receivable was reduced on account of amounts defendants had allegedly collected from Phoenix's third-party creditors. We have considered and rejected defendants' other arguments. No basis exists to disturb the Special Referee's findings crediting plaintiffs' accountant over defendants' (see Morris v Crawford, 304 AD2d 1018, 1022 [2003]), and finding that the former's report fully accounted for the firm's assets. It was also a proper exercise of discretion to award plaintiffs prejudgment interest (see id. at 1022-1023; Sexter v Kimmelman, Sexter, Warmflash & Leitner, 43 AD3d 790, 795 [2007]), and, under the circumstances, to make such award run from the date of dissolution.

(Mike Frisch)

January 6, 2009 in Law Firms | Permalink | Comments (0) | TrackBack (0)

Metaphor, Risk, and Judgment

Posted by Jeff Lipshaw

Two colleagues walked into my office yesterday and told me they had thought of me when reading the Michael Lewis/David Einhorn essay that purports to explain exactly what went wrong with the financial markets in the Sunday New York Times. David Zaring and Frank Pasquale have weighed in on the Lewis/Einhorn piece (Zaring = "kneejerk/post-hoc moralizing"; Pasquale = "smart commentary"); like Fred Tung, I think I have to go with David's balloon-popping of the "I-Told-You-So" School, and thank David as well for reminding me Turnerbrasilxapuriweb to go back to Joe Nocera's article about Nassim Taleb and the "Value at Risk" algorithm in the Sunday NYT Magazine.  (The problem, for me, with Sunday Magazine articles is that part of our paper gets delivered on Saturday, and the magazine gets stored in a hermetically-sealed container for twenty-four hours so that I have a pristine crossword puzzle to do on Sunday morning.  I jump right to the crossword (do not read The Ethicist or William Safire, do not pass GO)). 

It's not enough to say "see, I was right" because some lucky bastard always manages to take the long shot bet.  My prime example of this is Edward Yardeni.  He's still in business, despite having predicted the end of the world as a result of the Y2K crisis. The link is to a CNET article dated January 4, 2000 when it appeared that, indeed, the world had not collapsed, not the U.S., which had spent trillions, and not even Italy, which showed up on most people's charts as completely unprepared for the turn of the clock!   I love this - here's what it looks like when you've bet the farm on doomsday, and doomsday doesn't happen:

In a statement posted Sunday on his own Web site,, one of the more outspoken doomsayers on the Y2K problem, said he is "impressed and pleased by the smooth transition into 2000 so far." He also said the risk of disruptions to global supply chains, which was his No. 1 concern, now seems less likely to occur.

He also said that if no "significant" problems occur by the end of this month, he will admit he was wrong about a Y2K global downturn.

In the statement, Yardeni credited the IT community for a successful century date change as well as Y2K preparedness efforts by John Koskinen, the U.S. government's leading Y2K man.

Of course, this doesn't account for Italy.  (Per the CIA in October, 1999:  "Russia, Ukraine, China and Indonesia are among the major countries most likely to experience significant Y2K-related failures. Countries in Western Europe are generally better prepared, although we see the chance of some significant failures in countries such as Italy.")  But who cares when you've made a bundle in consulting and appearance fees.

The lead-in to Nocera's piece, a quote from Peter Bernstein's introduction to his work on risk, Against the Gods, capsules this nicely:

The story that I have to tell is marked all the way through by a persistent tension between those who assert that the best decisions are based on quantification and numbers, determined by the patterns of the past, and those who base their decisions on more subjective degrees of belief about the uncertain future. This is a controversy that has never been resolved.

Books are starting (again) to stack up on my desk, but they all seem to tie back into my thesis about the irreducibility of judgment (and rule-following).  Take Harold Schulweis' book, Conscience:  The Duty to Obey and the Duty to Disobey.  It's an argument, drawn on several Jewish sources (e.g. Abraham's argument with God about saving Sodom and Gomorrah), that our own conscience can override what seems to be God's dictate.  How can that be?  And if it's so (and, by the way, it seems that way to me!), how do you decide when to obey and when not to obey?  If you are allowed to argue with God, then you probably ought to be able to argue with the results of the Value at Risk algorithm.  But when God or the entire financial community are telling you X, it's really hard to do Y!  Then when you do Y, and it turns out you were right, were you wise or insane but lucky?

I'm also reading Mark Turner's Cognitive Dimensions of Social Science. Turner (pictured above) is a leading theoretician in cognitive science.  This is fascinating stuff - he's taking apart Clifford Geertz's iconic article "Deep Play" on the Balinese cockfight, not from an anthropological standpoint, but the standpoint of trying to theorize how human beings evolve new meanings.  The key here is culturally developed categories (how our minds classify data) and metaphor or analogies that disturb them.  Moreover, we blend meanings from separate "influencing spaces" into a new meaning.  The hypothesis is that the so-called "double-scope blend" in which two wholly separate influencing spaces determine a new meaning is the critical evolutionary development that makes us human.  I think of it this way.  My dog associates my putting on my coat with going for a walk.  My understanding is that is a single-scope blend of meaning.  A double-scope blend, on the other hand, is the metonymy (or is it synecdoche) of, say, the cockfight.  Natural cockfights and Balinese social structures don't have much to do with each other until they are blended to have a new meaning in which the victorious chicken says something about its owner.  (Think about your affiliation with your favorite sports team.)  Modern humans do double-scope blends; no other creatures do.  (That sounds like a testable hypothesis to me, by the way.)

In short, if the sensory data of the world takes on meaning to a human being through a process of blending - of metaphor and analogy - what does that say about the tension Bernstein identifies?  And is being right in your prediction of the future any evidence of the superiority of the mental processes that produced it?

January 6, 2009 in Hot Topics | Permalink | Comments (1) | TrackBack (0)

Bounced CLE Check Leads To Discipline

A Louisiana hearing committee recommends a public reprimand plus a one-year probation in  a case where they concluded that any harm caused by the violation was de minimus. The disciplinary problem stemmed from the continuing legal education obligation. The attorney had attended a course in 2002 but wrote a bad check in payment. As a result, he was deemed ineligible to practice in 2005. He denied receiving notice of his ineligible staus. When he learned, he took steps to become reinstated. He had practiced while under suspension in violation of the rules governing unauthorized practice.

The committee noted that "[d]uring the relevent time frame, family illness and Hurricane Katrina and its aftermath complicated [his] legal practice and life generally." His practice was located in Chalmette, on the Mississippi River. He had to move his law office four times and had experienced problems with receiving his office mail. The committee was impressed with his genuine remorse and his efforts to remedy the ineligibility problem. (Mike Frisch)

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

Monday, January 5, 2009

No Deal, No Claim

An attorney who had ordered a "Smart Light" over the internet wanted to take advantage of the seller's advertised "free bonus" offer. He sought to pay with his American Express credit card but was advised that there was a shipping charge for the free bonus. The next day, he "filed a putative class action alleging common law fraud and consumer fraud against [the seller], premised on...deceitful advertising of its products on the internet." Because the item purchased was on back order, the product was never delivered, as the seller had cancelled the sale after the suit was filed. The credit card was not debited. The seller filed an abuse of process counterclaim, alleging that the lawyer had filed numerous similar actions against retailers. The trial court dismissed both the claim and counterclaim.

On appeal, the New Jersey Appellate Division affirmed. The plaintiff did not establish an ascertainable loss, as the transaction had not been completed. The fact that the plaintiff had filed 40 similar cases did not establish abuse of process: "Our concern with reliance on this proferred information is that, as represented by [defense] counsel, many of these suits were settled before class certification could be attempted or achieved, and we are in no position to nor will we assess the bona fides of these actions..." (Mike Frisch)

January 5, 2009 in Law & Society | Permalink | Comments (1) | TrackBack (0)

Untold Story

A Louisiana hearing committee has recommended permanent disbarment of a lawyer who defaulted on charges arising from his involvement in a bond trading program that offered guatenteed payout and a substantial return to investors. He had defaulted in civil proceedings brought by investors and has an outstanding judgment against him for $5,990,143.30. He also issued a worthless check for $150,000 drawn on his escrow account.

This case is somewhat unique in the fact that Respondent's known misconduct likely does not tell the whole story in this matter. It is believed by this Committee that the reason for [his] conduct remains unknown is a direct result of his failure to cooperate with ODC in its investigation. As a direct result of this failure, neither this Committee or the ODC may ever know the rationale for [his] misconduct or the extent of the harm caused by [his] actions. However, [He] should not benefit from his failure to cooperate.

(Mike Frisch)

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