July 2, 2009
Threat From Prosecutor Draws Reprimand
The Minnesota Supreme Court has publicly reprimanded Dakota County Attorney James Backstrom for discouraging a medical examiner from letting a co-worker to testify in a Washington County murder trial.
Backstrom will pay a $900 fine.
In a one-page decision, filed today, the state's highest court followed the disciplinary recommendation issued last month by the Office of Lawyers Professional Responsibility.
The Minnesota Board of Public Defense filed the original complaint. The state public defenders argued that Backstrom overstepped his bounds by sending an e-mail to Dakota County Medical Examiner Lindsey Thomas telling her she could lose her job if she or one of the other doctors in her office testified for defense attorneys in neighboring counties.
Following the e-mail, a doctor in Thomas' office declined to testify as an expert witness for the defense in the Washington County murder trial of Nicole Beecroft, 19, who was later convicted of first-degree murder and sentenced to life in prison for killing her newborn daughter.
Backstrom accepted the recommendation of the Lawyers Board last month and agreed to the fine. He issued a public apology for sending the email, acknowledging that it gave the appearance he was interfering in an ongoing court trial.
"I did not intend to adversely impact the Washington County trial in any respect," Backstrom wrote. "However, sending this email at the time I did represented a lack of judgment on my part for which I apologize."
The court's order is linked here. Thanks to Professor Maury Landsman of the University of Minnesota Law School for advising us of this disciplinary action. (Mike Frisch)
Law School 4.0: Are Law Schools Relevant to the Future of Law?
[posted by Bill Henderson, crossposted to ELS Blog]
Paul Lippe, a well-known Silicon Valley GC and founder of Legal OnRamp (LOR), recently posted an essay on the Am Law Daily that essentially argues that law schools, at least in their present form, are not relevant to the future of law. [Lipshaw recently opined on Lippe as well.] Here is Paul's opening graph:
According to Paul, it is not that we are working on irrelevant stuff. It is worse than that: we are enjoying a comfortable living while loading our students up with debt and having a low opinion of practicing lawyers and the clients they service. Paul recounts a recent meeting with law school deans in which he "asked the question, 'If you decided the purpose of law school was to maximize the comfort and income of the faculty, what would you do differently?' The answer: 'Nothing.'"
In contrast, the gravamen of Lippe's remarks are about thought leadership and the ability to identify future solutions to macro-level problems. Consider the following trend-lines, which are representative of the types of issues that Lippe often discusses in his LOR and Am Law Daily columns:
- Nature and Cost of Civil litigation. With the proliferation of electronic documents, civil litigation is becoming more time-consuming and expensive. Thus, disposition of cases is increasingly influenced by the financial wherewithal to wage prolonged campaigns in court rather than the merits of underlying disputes. A thought leader would be proposing (a) how to re-engineer the civil justice in a way that reduces costs and improves access, or (b) how to anticipate and avoid legal disputes through systems that keep clients out of a broken civil justice system.
- Shifting Nature of Clients. Because of the shifting economics of the profession, an ever
large proportion of law graduates earn their living as "thing" lawyers
rather than "people" lawyer. Believe it or not, in the 1930s, the
dean of Yale Law School was preoccupied with the oversupply of lawyers.
Why? Because the majority of Yale grads became general
practitioners--i.e., people lawyers--within the local New England
economy. See Charles E. Clark & Emma Corstvet, The Lawyer and the Public: An AALS Survey, 47 Yale L. J. 1272 (1938). That world no longer exists. The overwhelming majority of law school graduates will
serve as "thing" lawyers, either for government, private industry, or a
public interest cause. Yet, hearkening back to the time of Dean Clark,
our entire regulatory framework is premised on the idea of a client who
is a single, natural person.
Under Lippe's thought-leader ideal, members of the legal academy would be re-conceptualizing the assumptions underneath lawyer regulation and proposing an institutionally coherent strategy for altering the regulatory landscape in a way that simultaneously helps ordinary citizens, business, and the democratic process. In theory, we've got the time, resources, and brain power. Where is the leadership?
- Cost and Quality of Legal Education.
Over the last 30 years, the cost of a legal education has increased
approximately three times faster than the average household incomes.
Yet, it is difficult to identify a corresponding innovation within
legal education that justifies the higher cost. A thought leader
conceives of ways to reduce the cost of legal education or equip
graduates with a larger skill set that is likely to provide a
substantial return on investment. Here, I am not talking MacCrate-type
skills, as important as they might be. Rather, I am thinking
legal-process engineering and the ability to standardize and
commoditize legal products in a way that increases predictability and
drives down cost. See, e.g., Richard Susskind's collected works.
More after the jump ...
Frankly, amidst the meltdown of the entry-level lawyer job market, I am surprised by the lack of significant interest or attention by legal academics, at least as judged by blogosphere traffic. It is all-too-easy to assume that the market will rebound next year, or 2011 at the latest. To this I might ask, "What is the basis for the optimism?" The salad days of 2004 to 2008 were driven by a Wall Street juggernaut that destroyed the U.S. investment banking industry, which was the historical client basis for the industry's most prestigious law firms. And here is a more pointed follow-up question, "How much does the legal economy need to recover so that our students can to support their debt load?" See, e.g., Jonathan Glater, Finding Debt a Bigger Hurdle than the Bar Exam, NY Times, July 1, 2009. Obviously, the answer to this question requires some careful study and some math. Vague appeals to the business cycle just won't cut it.
It is one thing to acknowledge that we lack good answers--that part is forgivable. But it is quite another to ignore or minimize the problem because, quite frankly, it really does not affect us personally. All of this reminds me of my youth in Cleveland, Ohio during the 1970s and 80s. Lots of my friends' parents worked for General Motors, which offered high pay, amazing benefits, predictable hours, and long vacations. No one else seemed to have it so good. I remember thinking at the time that GM was both complacent and invincible. It turned out that I was only half right. So I worry about my own industry. Do I have the mindset of a GM employee circa 1979? God, I hope not.
Recently, the editors of Above-the Law surveyed the changes within the legal job market and asked two good questions: (1) if the Howrey/Drinker Biddle/Frost Brown Todd apprenticeship model gains traction, is it appropriate to shorten law school to two years? And (2) if law school salaries are going down, should law schools be expected to "share in the pain" by figuring out ways to reduce tuition? Unless the job market significantly improves during the next 12 months, it is going to get much more difficult for us to ignore these issues. For a realistic cost analysis of the current system, see Edward Rubin, Should Law Schools Support Faculty Research, 17 J. Comtemp. Leg. Issues 139 (2008).
I don't want this post to be a screed. I am looking for next steps that will produce concrete and sustainable forward progress. But I have read enough history on the growth and evolution of U.S. legal education to have a realistic view on institutional change. Here are my two primary rules:
Rule #1: Great ideas are not enough. As a result, bold initiatives by professional organizations like the AALS or the ABA rarely have staying power. Law professors are intellectuals; hence, we fall in love with our own ideas. But all-to0-often, we fail to do a coherent institutional analysis that explains why others will adopt our ideas. Skipping this step is one of the privileges (and hazards) of the ivory tower. For a more elaborate discussion of this point, see Why I Worry About the Carnegie Report: Four Data Points (Dec. 7, 2007).
Rule #2: Sustainable ideas within any industry are always accompanied by institutional self-interest--legal education is no exception. In other words, the people who execute on the idea have to be made better off, e.g., through financial gains, professional reputation, leisure, economic security, or (at the individual level) self-actualization. This was secret sauce behind the Langdell case model: It was more effective than self-study yet it facilitated large enough class sizes to generate a perennial economic surplus. In turn, lawyers-turned-law-professors were freed from the commercial pressures of practice and could advance their careers as experts. The university, professors, and students were all made better off. As a second order effect, so was the legal profession. Of course, this revolution occurred 100 years ago. It is time for a new legal education formula that fits the 21st century.
Lippe understands this calculus. Indeed, he ends his essay with a "glass is half-full" perspective that is bound to be overlooked:
While law schools need to figure out how to get graduates out the door faster and for less money, they also are the logical source ... of skills (as well as reputation and network) development for lawyers to become fully functional, especially as firms' appetite for subsidizing training will decline. Medical schools and business schools make a ton of money at continuing/executive education, so this is a great opportunity to enrich the faculty and student experience, generate an income stream, and engender more alumni loyalty.
New Illinois Ethics Rules
The Illinois Supreme Court has issued a press release announcing that it has adopted new Rules of Professional Conduct effective January 1, 2010. Highlights in the new Rules include provisions setting forth ethical duties to prospective clients and a new provision dealing with receipt of confidential information due to a mistake (only obligation is to notify sender).
The full text of the new Rules is linked here. (Mike Frisch)
No Writ But Governor Ordered To Appoint Judge
A retiring Florida judge sought a writ of mandamus compelling Governor Crist to appoint his successor within 60 days from a list submitted by the Judicial Nominating Commission for the 5th Appellate District. The commission had submitted six names after receiving applications from 26 individuals. Governor Crist did not appoint from the submitted list and asking for consideration of three African-American applicants on order to promote diversity on the bench. The commission declined to reconsider and the position has remained vacant.
The Florida Supreme Court held today that a plain reading of the Florida Constitution leads to the conclusion that the Governor has no authority to reject the commission's list. The court declined to order the issuance of the writ as it expressed its belief that the Governor will accept the holding and name a new judge from the submitted list. (Mike Frisch)
Three Partners Suspended
In a lengthy and interesting decision, the Louisiana Supreme Court suspended three law firm partners for six months with three months stayed. The firm had represented the complainant in complex commercial matters since 1985. In 1996, the firm and client executed a revision of a 1992 retainer agreement.
The 1996 agreement was the subject of the disciplinary proceedings. The court found that the "highly unusual [fee] arrangement" created a conflict of interest that violated Rules 1.7(b) and 1.8(a). Even if the fee agreement was fair and reasonable, the firm did not advise the client to seek advice from independent counsel. The court also concluded that the client's business acumen was no substitute for otherwise complying with business transactions with a client provisions of the Rule. Further, the firm's submission of 922 pages of billing document did not establish compliance with the record-keeping obligations of Rule 1.15(b); rather, the submissions made an "utter mockery" of accounting requirements. The firm also violated Rule 1.16(d) in its withdrawal from representation.
A dissent would find no violations ans would not suspend for the violations found by the majority. According to the dissent, the 1996 agreement provided benefits and positive incentives for both the client and the law firm.
"See Y'all Later"
The Louisiana Supreme Court has suspended a judge for 30 days, rejecting as insufficient the public censure proposed by its Judiciary Commission. The judge was found to have "exhibited improper temperment and demeanor, as well as impatience and discourtesy" in his dealings with a woman seeking a temporary restraining order for domestic abuse. The judge criticized the mother for taking the kids to eat at Subway (which the judge later characterized as an "inside joke"). He then said "good for you" to the father when he said he would bloody his daughter's booty. Then, the ruling;
Heat, big smoke, no fire. You want a divorce, you get a divorce. You're not getting a TRO. See y'all later.
The judge had a well-publicized incident of prior discipline for going to a Halloween party in an Afro wig and then applying black face when the wig did not get the laughs he expected. The court took the prior discipline into account in imposing a suspension here.
A dissent would impose the public censure recomended by the commission. (Mike Frisch)
July 1, 2009
Boo to Billable Hours
Posted by Jeff Lipshaw
Appellate lawyer and author John Derrick has asked us to put in a link to his book Boo to Billable Hours: A Lawyer's Guide to Better Billing, the contents of which are available on his website for free. We don't usually do commercial endorsements, but, as far as I can tell, free in this case means free. So why not?
Here's the blurb:
THE BILLABLE HOUR dominates the legal profession, but is gradually eating away at its soul. It chills the attorney-client relationship. It penalizes efficient lawyers, while rewarding plodding ones. It leads to arbitrary, irrational, and suspect results, in which time is distorted and sometimes invented. It disconnects the amount that is charged from the value delivered. And it fails to produce what it promises, transparency. Its effects are all the worse in law-ﬁrm pyramids that impose excessive billing requirements. This straight-talking book critically dissects the practice of billing by the hour, examining how time is actually recorded in a variety of contexts that raise ethical as well as practical concerns. The book is not all about criticism. It also advocates alternatives that shift the focus away from time expended and onto value delivered.
Much Lesser Sanction
In a case decided today, the Wisconsin Supreme Court rejected proposed discipline of a lenghty suspension in favor of a 60-day sit down. the court explained its sanction decision as well as its analysis of the imposition of costs:
The OLR [Office of Lawyer Regulation] charged 13 counts of professional misconduct. The referee found a failure of proof as to five counts, including the four counts arising out of Attorney...'s representation of J.K. The four counts involving J.K. provided the impetus for the OLR to commence its investigation into Attorney...'s conduct in 2004. The OLR would not have learned of Attorney...'s representation of R.M. had it not been for the grievance filed by J.K. The OLR did not appeal the referee's decision with respect to the J.K. counts.
The most serious allegation of misconduct found by the referee was Attorney...'s alleged $9,630 overcharge in the R.M. personal injury settlement. It appears that the question of what was the appropriate fee in the R.M. settlement was the most hotly debated issue in this case, and that this single issue accounted for a substantial amount of the total time——and resulting fees and costs——expended by the OLR in prosecuting this matter. We have concluded that the OLR failed to meet its burden of proof on its allegation that Attorney...overcharged R.M. We also rejected the OLR's cross-appeal and agreed with the referee that Attorney...fully cooperated with the investigation into his conduct.
We agree that the remaining counts of misconduct are serious failings which warrant a suspension of Attorney...'s license to practice law. However, the failure to maintain proper records is a technical violation, and although we did not overturn the referee's factual findings as to why Attorney Molinaro deferred income from one year to the next, we did agree that his explanation for the deferral was plausible.
While the OLR sought a two-year suspension and the referee recommended a 30-month suspension, this court has deemed it appropriate to impose a much lesser sanction, a 60-day suspension.
Attorney...has practiced law for almost 30 years and has no prior disciplinary history. This matter has been pending for a significant period of time. The conduct at issue occurred between 2001 and 2003. The OLR's investigation lasted for 30 months before the matter was referred to the preliminary review committee. A complaint was not filed until 2007.
In view of all of these factors, we conclude that it would not be fair under the circumstances of this case to hold Attorney...responsible for the full amount of costs. We conclude that extraordinary circumstances are present and that Attorney...should be required to pay $12,000 in costs.
It seems appropriate to me that costs should only be imposed where misconduct is found. (Mike Frisch)
Decade Of Criminal Conduct Draws Disbarment
From the California Bar Journal:
LOEL HARRIS SEITEL [#192999], 42, of New York was disbarred Jan. 9, 2009, and was ordered to comply with rule 9.20 of the California Rules of Court.
Seitel was sentenced to five years in prison in 2007, following a conviction for conspiracy to obstruct justice. He and several other people agreed to provide false and misleading information to the government concerning the nature of a relationship between him, his law partner, Marc F. Desiderio, and an individual who ran a drug smuggling operation.
While practicing law in New Jersey in 1993, Seitel was introduced to Jeffrey Tobin, who said he was a loanshark. In fact, according to a decision by State Bar Court Judge Richard Honn, Tobin ran an organization that purchased thousands of pounds of Mexican marijuana in California or Arizona and then moved the drugs to the New Jersey area for distribution along the eastern seaboard. Tobin asked Seitel and Desiderio to help him procure stash houses to store drugs and money.
Over a 10-year period, Honn said, Seitel and Desiderio rented three houses for Tobin’s use and in 2001, they purchased real estate for Tobin in Florida. They were paid cash for the leased residences and $500,000 in cash as collateral for the real estate. Although they were told the cash was from Tobin’s loanshark business, in fact it was from marijuana distribution.
When they became aware of an FBI investigation, Honn wrote, Seitel, Desiderio, Tobin and others agreed to provide false information to investigators about the nature of their relationship.
Seitel also represented a defendant before the grand jury, but when the government tried to have him disqualified because of his relationship with Tobin, he falsely told the court there was no conflict of interest because the Miami property transaction was legitimate.
In 2006, Seitel was charged with conspiracy to launder money, concealing money laundering, conspiracy to obstruct justice and obstruction of justice. He pleaded guilty to conspiring to make false statements to the government.
Saying Seitel’s disbarment “is amply warranted,” Honn agreed with bar prosecutors’ arguments that he engaged in a continuous course of criminal conduct for 10 years and that his conduct involved moral turpitude.
Personnel, Not Policy
The California Bar Journal has the following report:
The State Bar Board of Governors declined last month to reappoint its chief trial counsel, Scott Drexel, but reconfirmed its support of the strong public protection measures that Drexel enforced.
“This was a personnel, not a policy decision,” said bar president-elect Howard Miller. Added Richard Frankel of San Ramon, chair of the board’s discipline committee: “Nobody should read into this that the board is kowtowing to any particular group.” Both Miller and Frankel stressed that the board approved of Drexel’s “aggressive prosecutorial standards” and said they expect the prosecutor’s office to maintain its strong public protection policies.
Deputy Chief Trial Counsel Russell Weiner will serve as interim chief trial counsel until a successor to Drexel is named. The board expects to hire a legal search firm to field candidates for the four-year term of chief trial counsel. The board has asked Weiner to give a report at its meeting this month in Los Angeles outlining policies the discipline unit intends to follow as well as any changes it might wish to make.
Citing confidentiality in personnel decisions, board members declined to say why Drexel was not reappointed. In a letter to the chairs of the Senate and Assembly judiciary committees and Senate President Pro Tem Darrell Steinberg, Frankel wrote, “the board is not looking for a change in policy direction and has made clear that it expects the vigorous public protection efforts pursued during Mr. Drexel’s term to continue unchanged … The board expects the chief trial counsel to hold all attorneys in this state fully accountable for their actions regardless of their employment status.”
Drexel proposed a series of measures that toughened the bar’s disciplinary rules during his tenure as chief trial counsel. Although the board adopted those measures, they drew criticism from several quarters. Defense lawyers who represent attorneys charged with misconduct felt Drexel was overzealous and sought punishment harsher than deserved. Several recent high-profile prosecutions of deputy district attorneys from throughout the state also caused unhappiness among county prosecutors, who tried unsuccessfully last year to push legislation to reduce the bar’s disciplinary power.
“In no way was our decision reflective of any political issues whatsoever, whether respondents’ bar, district attorneys or any pending matter,” Frankel said.
Drexel, 60, was appointed chief trial counsel in 2005 by the board of governors and confirmed by the California Senate. He came to the job after 16 years as chief court counsel and administrative officer for the State Bar Court. As chief trial counsel, he oversaw more than 200 employees and a $40 million budget in the bar’s disciplinary enforcement office, which includes the investigation and prosecution of attorneys for professional misconduct.
Drexel said he was disappointed by the board’s decision. “I felt I had done my best both to protect the public and to serve the profession and to implement what I understood to be the expectations of the Supreme Court. I’m proud of what my office accomplished during my term. I would not change anything I did.”
Power Of Attorney
The Illinois Administrator has filed disciplinary charges against an attorney alleging that he had notarized the signature of a client on a document granting power of attorney to her spouse that had not been signed in the attorney's presence. It is further alleged that the spouse used the POA to secure mortgages against jointly owned property and that the wife learned of the mortgages for the first time during marriage dissolution proceedings. (Mike Frisch)
Asserting Personal Knowledge
The web page of the Massachusetts Board of Bar Overseers reports on a public reprimand of a prosecutor:
On November 13, 2003, a jury trial was commenced in Norfolk Superior Court in a first-degree murder case against two co-defendants. The respondent was the assistant district attorney representing the Commonwealth.
The Commonwealth alleged that the two defendants shot and killed one man and severely injured another in retaliation for the killing of two members of the defendants’ gang. Two former gang members agreed to testify for the Commonwealth in exchange the Commonwealth’s agreement to recommend a reduced sentence on various charges, an agreement to not bring additional charges, and a nolle prosequi entered on murder charges. During the trial, their credibility became a key issue, and the defense vigorously attacked their veracity during closing arguments.
During the respondent’s closing argument, he made statements that improperly vouched for the credibility of these two witnesses. In one instance, the respondent told the jury that he did not offer one of the witnesses any deal until after he personally verified the witness’s account by following the route to the crime scene that the witness had described. The respondent improperly vouched for the second witness by telling the jury that the witness had turned his life around after serving time in a federal prison. The respondent told the jury, “And I spoke with [the witness], and I looked at him, and I looked at what he had become.”
The respondent also improperly implied to the jury that they should avenge the victims. At the end of his closing argument, the respondent told the jurors, “It is your turn to put in work”. This phrase, as explained during the trial, was used by gang members to connote a form of revenge.
The murder conviction of one co-defendant was appealed and overturned by the Supreme Judicial Court in Commonwealth v. Williams, 450 Mass 894 (2008). The court ordered a new trial due to the respondent’s improper closing argument.
By asserting his personal knowledge of the facts in issue and vouching for the credibility of witnesses, the respondent violated Mass. R. Prof. C. 3.4(e), 3.8(h) and (i) and 8.4(d). For urging the jury to put in “work,” implying to avenge the crimes, the respondent violated Mass. R. Prof. C. 8.4(d).
The matter came before the Board of Bar Overseers on the parties’ stipulation of facts and rule violations and an agreed recommendation for discipline by public reprimand. On May 11, 2009, the Board of Bar Overseers voted to accept the parties’ stipulation and to impose a public reprimand.
The case is Matter of Nelson, Public Reprimand No. 2009-13. (Mike Frisch)
June 30, 2009
No Disability Suspension
The New York Appellate Division for the First Judicial Department declined the implement the Departmental Disciplinary Committee's proposal to convert a suspension for failure to cooperate with a disciplinary investigation into a disability suspension. Rather, the court continued the indefinite suspension until the lawyer is able to participate in the proceedings. The court's reasoning:
In support of its motion, the Committee avers that it had been advised by respondent's counsel that respondent, an 80-year old practitioner, has continued to deteriorate both physically and mentally and thus would not be capable of participating in the disciplinary proceeding. The Committee received a copy of a June 11, 2008 neuropsychologist's evaluation of respondent, as well as a letter from his treating physician. Collectively, these documents demonstrate that respondent suffers from cerebral vascular disease, and that his level of mental function has declined since entry of the order of suspension, as reflected in memory loss, cognitive impairment and significant depression, thus making it impossible for him to defend himself in the pending proceedings.
In issuing the prior order of suspension, we noted that " The Committee has presented clear, uncontested evidence of respondent's professional misconduct which immediately threatens the public interest. We further noted that "his failure to challenge the allegations that he engaged in professional misconduct by neglecting legal matters and failure to refund legal fees, except in one instance, constitutes uncontested evidence of professional misconduct. Additionally, his willful failure or refusal to pay money owed to a client, which debt is demonstrated by a judgment constitutes grounds for suspension.
While we are not unmindful of respondent's age and current physical and mental condition, the Committee has not submitted reasons nor precedent for its motion to vacate the prior order of suspension in toto.
This matter is factually indistinguishable from Matter of Fusco (18 AD3d 81 ). There, as here, the respondent was initially suspended from practice on the basis of uncontested evidence of professional misconduct, as well as failure to cooperate with the Committee's investigation. Subsequent to that order, the respondent submitted evidence of physical and mental incapacity and the Committee sought a further order suspending respondent on those grounds.
We granted the motion and vacated that portion of the prior order which dealt with respondent's lack of cooperation with the Committee's investigation, based upon the medical evidence submitted to the Committee.
There is no reason to depart from that precedent in this case. The evidence of respondent's professional misconduct is uncontested and, while the evidence before us explains his inability to defend himself at these proceedings, it does not explain nor controvert the findings of professional misconduct alleged herein. There is no basis to disturb the suspension based upon professional misconduct on the record before us.
I find this result rather harsh as the medical information indicates that this does not appear to be the type of disability that can be remedied. The public is as protected by a suspension based on disability as by an indefinite suspension. (Mike Frisch)
From the web page of the Virginia State Bar:
On June 8, 2009, a Virginia State Bar Fifth District, Section I, Subcommittee imposed a public reprimand with terms on [an attorney] for violating professional rules that govern responsibilities regarding nonlawyer assistants, professional independence of a lawyer, unauthorized practice of law, communication and advertising about a lawyer's services, and firm names and letterheads. The misconduct involved the management of [his] law office and his advertisements, which used the name and likeness of a disbarred attorney. This was an agreed disposition of misconduct charges.
Grease Is The Word
An Arizona hearing officer rejected a number of ethics charges filed against an attorney by a former client and recommended an informal reprimand for failing to provide the client with a written retainer agreement. The rejected charges involved the following: that the attorney "went to a party and took multiple drags from [a] marijuana joint," that he had told the client he had once paid for a blow job, and that he had thrown a malfunctioning hand-held tape recorder in a pique or anger during a meeting with the client.
The hearing officer:
The squeaky wheel is not always entitled to be greased. In this case Complainant is the loudly squeaky wheel that caused the Arizona State Bar to file an ill-advised complaint, although to its credit the Bar first winnowed out the more flagrant of Complainant's accusations. Nonetheless, Complainant seems likely to emerge with what he was most after, escape from paying a legitimate substantial bill for legal services.
The hearing officer concluded that there was no evidence that the lawyer's performance was in any way impaired by the charged incidents and rejected the Bar's contention "that a lawyer's character flaws and weaknesses, independant of any effect on his actual practice of law, can be ethical violations simply because he or she is a lawyer." (Mike Frisch)
"Stun Belt" Reversal
The New York Court of Appeals has reversed a criminal conviction of a defendant charged with the murder by strangulation of a 14 year old victim. The trial court had ordered the defendant to wear a "stun belt" restraint during the trial. The court here reversed the affirmance of the conviction by the Appellate Division, concluding that forcing a defendant to wear the belt absent any showing that he was a danger at trial that would justify the use of the belt.
A dissent would hold that the presumption of innocence was not implicated: "...defendant failed to show that the stun belt was visible to the jury or otherwise compromised the fundamental fairness of the trial; he never objected that the stun belt impaired his ability to communicate with his attorney or meaningfully participate in his defense. Since I therefore do not believe that the defendant has shown any actual prejudice, I would affirm his conviction." (Mike Frisch)
CLE-Related Judicial Misconduct
A South Carolina magistrate judge was sanctioned for misconduct relaing to fulfilling his CLE obligations. The South Carolina Supreme Court described the misconduct as follows:
In this judicial disciplinary case, respondent Magistrate Judge...admits altering a court order and a letter from the Commission on Continuing Legal Education and Specialization (hereinafter “CLE Commission”). The record supports the recommendation of the Commission on Judicial Conduct (hereinafter “the panel”), and we retroactively suspend respondent.
Respondent failed to comply with Rule 510, SCACR and report his CLE hours for 2006-07 timely. Therefore, this Court suspended respondent. Subsequently, respondent complied with Rule 510. Thus, the CLE Commission issued respondent a letter finding him in compliance and instructing him to contact this Court to be reinstated. This Court then reinstated respondent by court order, and the court order specifically stated the reinstatement was not retroactive.
Respondent then retook the bench. While conducting bond court, respondent was asked to submit evidence of his reinstatement to the county administrator. Respondent faxed copies of the CLE Commission’s letter finding him in compliance and this Court’s order reinstating respondent. The version of the letter and this Court’s order sent by respondent were altered. Specifically, respondent removed the references that his reinstatement was not retroactive. Respondent explains the alterations of these documents as an innocent attempt to obscure notes he made on the documents as he did not have time to obtain the originals. Respondent admits he failed to notify the county administrator of the papers’ alterations.
The magistrate has been on interim suspension since October 12, 2007 and the court held that the served suspension was sufficient under the circumstances as a sanction. (Mike Frisch)
June 29, 2009
The North Dakota Supreme Court imposed a suspension pending the disposition of disciplinary proceedings in a case where the lawyer has been charged with, but not convicted of, criminal charges. The court describes the charges:
The suspension was imposed pursuant to a provision that empowers the court to act in matters of substantial threat of irreparable harm to the public. (Mike Frisch)
No Sanction For Judge
The Louisiana Supreme Court agreed with a finding of its Judiciary Commission that a judge had violated the Code of Judicial Conduct but rejected the proposed public censure sanction because the "wrongdoing does not rise to the level of misconduct warranting the imposition of a disciplinary sanction." The judge sat in a high-volume drug court and had regularly ordered that defendants pay a fine for the benefit of the "I Care" drug program while serving on the program's advisory council. The fines totalled $83,550.00
The court states:
In making this decision, we rely on [his] unblemished record on the judicial bench. Moreover, any potential appearence of impropriety subject of these proceedings stems solely from his admirable personal and judicial efforts to improve his community through substance abuse prevention and education. While we in no way condone his actions and strongly caution him to refrain from similar judicial misjudgment in the future, we do not find his actions to rise to the level of sanctionable misconduct.
A Comment on Law School 4.0
Posted by Jeff Lipshaw
An op-ed by Paul Lippe (no relation) at the Am Law Daily on what law schools ought to do to cure THE PROBLEM has gotten a fair amount of buzz in the blogosphere, including from our own Bill Henderson.
Here's my quick reaction:
1. The descriptions of Phases I to III (reading law; Langellian case method; "law and ...") seem accurate to me.
2. This statement strikes me as a relatively fair generalization:
Even in 1981, when I went to law school, the faculty generally held law firms in low regard, and clients were presumed unethical without the constant guidance of lawyers (when I spoke to a law school dean the other day, she immediately equated client with "Enron"). It's nuts for law school to be primarily about understanding appellate decision making and not at all about understanding clients.
This is particularly the case when discussing the politically-infused area of corporate governance. I still marvel at individuals in various institutions (academia, Congress, state governors, corporations) who have no compunction about calling the motives of other individuals in other institutions into question (i.e. conflicted, greedy, short-sighted, etc.) without stepping back and looking at their own. For example, I'm still not convinced that faculty governance has any moral superiority over corporate governance, and clearly Governor Sanford's recent escapade tarnishes the purity of the bully political pulpit. I'm willing to accept a middle ground, which is that none of us embodies an Archimedean moral fulcrum. Or to quote Robert Burns: "O wad som' pow'r the giftie gie us, to see oursels as ithers see us."
3. Mr. Lippe says:
-A much more empirical approach to practice, forcing much deeper inquiry, rather than just trotting out hypotheticals and issue-spotting--e.g., if choosing AAA arbitration is the right dispute resolution clause, do we know that a higher percentage of deals with no arbitration clause ended in a contentious dispute?
This statement strikes me as not fully thought out, but certainly an area in which inquiring minds ought to be engaged (I try to be, as evidenced in this recent piece about legal "cures" to social problems). First, I'm not sure we've fully probed the empirical foundations of statements of this sort enough to use them as the basis for advice. You have a rare form of cancer. Overall, the cure rate with the best treatment is 20%. We can at least make some fairly reliable predictions as a result of natural science, to get at real cause-and-effect. As a general matter, that's far more challenging when we draw social science conclusions. Second, the analogy to medicine highlights the issue. Is the information a helpful piece of data in deciding whether to take the treatment? My son, Matthew, starts med school in six weeks, with a beginning unit that touches on evidence-based medicine. My guess is that data is helpful, but not ultimately dispositive, in making forward-looking judgments about care.