Saturday, August 22, 2009
I'm blogging up a storm here, and the fact that the first hurricane since we moved to Boston is on the way, I can blog about a storm. There are rip tide warnings out for the Cape Cod, Martha's Vineyard, and Nantucket beaches. Plus there are stories in the paper here about New England as presidential summer hangout (the Obamas are on their way to the Vineyard, and the Clintons were there earlier this summer).
But first, a digression. A number of years ago, our daughter had a boyfriend named Max, who was an aspiring theatrical director in New York. We also have a dog named Max who isn't always well-behaved. One day, my wife called me at work and said "Max got into the New York Times." I said, "Is that about Max the human and a good thing, or about Max the dog and a bad thing?"
Given the first paragraph, I had a similar reaction to a hypothetical headline "Bill Spares Martha's Vineyard," (the actual one this morning was "Bill Spares Bermuda"). I leave you, dear reader, to figure out the double entendre. [Jeff Lipshaw]
Posted by Jeff Lipshaw
Paul Lippe, who has been an agent provocateur (or thought leader, as they say) on the subject of legal education, has a follow up to his original Am Law Daily commentary to which our Bill Henderson linked a while back. Follow the link and read it for yourself, but I'm not sure if the comments are available if you aren't a member of Paul's Legal OnRamp, so here's mine if you want to hit the "back" button on the browser after you read his column:
* * *
Like Ray [Campbell, visiting professor at Penn State Law School, who also commented - UPDATE: see his original comments below the fold], I'm a former Big Law partner, and I was the VP & GC of a Fortune 850, NYSE company. I'm less likely than Ray (based on his comments) to try to argue that today's paradigm of legal scholarship has anything more than a passing relevance to the in-the-trenches practice of law. But that's not really the point. Practitioners have to understand that we started down a particular path over a hundred years ago when C.C. Langdell came up with the idea that law could be derived inductively from the reading of cases, akin to the scientific method in other disciplines. (There's a social science term called "path dependency" and it has to do with how hard it is to get off a particular path once you are on it; as an example, if you take a job at the beginning of your career with Weil,Gotshal, you've created different path dependencies for future choices than if you take a job with Sooem & Servem in Elko, Nevada.) Law became a subject for instruction in research universities, not merely for the training of lawyers, and with that developed a community of legal scholars, developing, indeed evolving, their own standards for what constituted advancement in knowledge. For a long time, that had to do mainly with legal doctrine, and academic energy devoted itself to the great treatises, and the great doctrinal advances like the UCC.
The problem with comparing law to medicine (as I did, and to which Paul links) is that while the practice of medicine is both art and science, the science is still hard science, and, moreover, the linkage between cutting edge theoretical research and its practical application is far more intuitive. For example, my son has his name on a paper that deals with work on the very subtle science of diabetic neuropathy in cells - how at a molecular and cellular level does the glucose cause the problems it does? Even if the research isn't directed at a cure, we can understand it in the web of scientific research that leads to useful advances and human flourishing.
That's far harder to do in law, and one only needs to scan the titles of the last 2,000 or so papers uploaded onto SSRN to confirm the hypothesis. Moreover, there's a lot of work produced and in spotty quality because of two structural features of academic law as it has moved down its particular path: (a) the sheer number of law professors compared to other disciplines, because the training of professionals subsidizes the theoretical pursuits; and (b) the plethora of student-edited (and non-peer-reviewed) journals. In short, law as academic discipline is still finding its place in the world. Given a hundred years of path dependence, however, "solving" the problem of legal education isn't going to occur without some acknowledgment of the academic paradigm. For example, we could certainly, as a logical possibility, move to a world in which most lawyers are trained in vocational institutes, and make theoretical "law and..." part of more traditional humanities and social science Ph.D. programs. But I suspect that most lawyers like their ties to the status of research universities that spawned most of them.
Friday, August 21, 2009
Posted by Jeff Lipshaw
Over at Conglomerate, good friend Usha Rodrigues has a post mulling over a lawsuit reported on by Debra Cassens Weiss of the ABA Journal - a Troy, Michigan lawyer by the name of Donald Dobkin filed a lawsuit against the University of Iowa Law School for age discrimination because he didn't get the job when Iowa advertised (I presume in the AALS bulletin and other normal avenues) for a professor specializing in immigration law. I just sent Usha a note, but it seems worthwhile to comment here as well, given that I'm the author of the iconic "Memo to Lawyers: How Not to 'Retire and Teach,'" an essay that may highlight some of the issues in Mr. Dobkin's travail.
Here's how Usha poses the question: "was Dobkin clearly 'more qualified' than the 2 other prospectives offered the job, given academic hiring as we know it?" With all due respect to Usha, while I share her sympathy for Iowa, I'm not sure that's the right question. I think she's highlighted the wrong thing, namely, a focus on the quantitative (publications divided by years). Moreover, the question does the same thing Dobkin's case seems to do, which is to conflate the age issue with the "experience" issue. Is his claim that he was the victim of age discrimination, or is he asking the court to impose on the school a hiring policy based on experience over scholarly bona fides? The simple answer to Usha's question is that unless a court is prepared to undertake the latter, there were all sorts of reasons that Iowa could have reasonably passed on Mr. Dobkin without having considered his age.
Without getting all Thomas Kuhn-ish here, Usha's proviso "given academic hiring as we know it" is another way of acknowledging that academic law isn't just about training new lawyers. It is an academic paradigm that, for better or worse (actually, in my experience of several years now, better AND worse), is determined largely by them who is already in the paradigm. It's just a fact of the academic world. I have a book proposal in at a major university press that has passed every hurdle except a late request by the philosophy overseer that it be sent out for a pure philosophy review. It's possible I don't write (or think) in the au courant philosophy paradigm, and I will be wrongly rejected. But that doesn't give rise to a legal claim. As I said to my editor, que sera, sera.
If you look at the several oldsters who've gotten jobs recently - Bill Fisher (Richmond), Chuck Whitehead (Cornell), me - and, without flyspecking Dobkin's resume, you will see some things that this fellow doesn't have:
- Mega-elite school J.D. and other credentials in addition to "expertise"
- Time spent as visiting professor (Bill Fisher was with me down at Tulane)
- A showing of real commitment to the task of becoming a law professor (say, by being active in the blogosphere, going to academic conferences, etc.) by persevering through more than one rejection at one school
That's apart from the question whether his publications were any good (I'll accept sight unseen that they were okay but not earthshaking). And being an adjunct prof teaching undergraduates at Central Michigan University is even more meaningless than the meaningless adjunct LAW teaching chops I discuss in the "Retire & Teach" essay.
I think somebody who files a lawsuit after being declined at one school is completely naive about the academy and the legal process, which is a better reason to pass on him than his age. (See the Brad Wendel test in the Big Rock Candy Mountain essay Usha cites, quoted in full below the fold.) The balance of teaching non-academic professionals, on one hand, and contributing to the advancement of knowledge in the research university setting, on the other, is a serious subject, one that deserves to be considered apart from matters as trivial as the ratio of publications per years of practice as the sole determinant for the job as among competing candidates.
The Mississippi Supreme Court remanded to its Commission on Judicial Performance a proposed public reprimand and 30 day suspension of a justice court judge. The charges involved "allegations that he improperly touched a justice court deputy clerk and used racially derogatory language." The court found the statement of agreed facts was "superficial at best" and that the judge denied making the offensive remarks: "This court...has no way to determine what language was actually used, to whom it may have been directed, whether it was uttered from the Bench or in some other setting, how many times it may have occurred, the context in which the alleged statements were made, or any other relevant information about it." The touching matter "is similarly lacking in detail." (Mike Frisch)
A case summary from the web page of the Tennessee Court of Appeals:
The dispositive issue on appeal pertains to a party’s fundamental and constitutional right to a jury trial guaranteed by Tenn. Const. art. I, § 6, and whether the defendants impliedly waived their right to a jury trial by being late for court. Both defendants had timely demanded a jury trial in their respective answers to the complaint; however, neither defendant was in the courtroom when court convened at 9:10 a.m. on the morning of trial. When the defendants appeared, the trial judge required that the case proceed to trial without a jury. The facts in this case reveal that the case was set to begin at 9:00 a.m. on July 5, 2007, that the trial judge convened court at 9:10 a.m., that immediately upon taking the bench the trial court ascertained that the defendants were not in thecourt room, and that without making any inquiry concerning their absence made the finding that the defendants had implicitly waived their right to a jury trial. The facts also reveal that one of the defendants, Alan Siliski, had been in the courtroom prior to court being convened, but went outside to await the arrival of his attorney, who had called to advise he was running late. As for the other defendant, Jennifer Siliski, the facts reveal that the plaintiff voluntarily dismissed its case against her during a pretrial conference three days earlier; however, a few hours after the conference the plaintiff informed the court, but not Ms. Siliski, that it had reconsidered and determined that Ms. Siliski was an indispensable party, therefore, it was not dismissing its case against her. Plaintiff contends Ms. Siliski received word of the change via a circuitous route from plaintiff’s counsel to Mr. Siliski’s counsel to Mr. Siliski, who was to inform Ms. Siliski that she was again a party in the fraudulent conveyances action. Ms. Siliski, however, insists that no one informed her that she was once again a party. It is undisputed that the plaintiff did not directly inform Ms. Siliski of this important fact and no one else testified that they personally informed Ms. Siliski of the change of circumstances prior to the morning of the trial. We have determined the above facts are not sufficient to support a finding that either defendant impliedly waived his or her right to a jury trial because a waiver should not be inferred without reasonably clear evidence of an intent to waive. Therefore, the defendants are entitled to a jury trial as each defendant had timely demanded. Accordingly, the judgments entered against the defendants as a result of the bench trial are vacated, and this matter is remanded for a jury trial on the issues.
The plaintiff is an attorney who had sued her former client for breach of contract and fraudulent conveyance. The court's opinion is linked here. (Mike Frisch)
Posted by Jeff Lipshaw
I was reading the Wall Street Journal's Weekend Journal this morning, and the De Gustibus columnist, Eric Felten, waxes on about the USNWR ranking of universities and liberal arts colleges. I was struck by this observation early on: "However predictable the listing has become, and however arbitrary the methodology, U.S. News remains the standard arbiter of such things as whether Cornell is more prestigious than Johns Hopkins. (Last year it was Cornell, but this year it's Johns Hopkins, which slipped ahead to grab the coveted #14 slot.) No one takes such distinctions seriously—like an 89.7-point wine rating, college rankings are a vain attempt to give clear-cut answers to subjective questions."
The second part of this sentence is so obviously true, and the first part is so obviously false, at least in the world of lawyers and law schools, it gave me pause to reflect. Felten's take is that the rankings are really about getting ahead, and what going to Harvard or Princeton means if you want to end up writing comedy scripts in Hollywood or doing buy-out deals on Wall Street. I was prepared to mock this, but on further review, maybe there's something to it.
We had our "welcome back" faculty luncheon yesterday, and somehow I got on the subject of ambition with a colleague who is a career-long (and very successful) academic. This was to the effect (as to me) that you can take the boy out of the Type-A environment, but you can't take the Type-A out of the boy. That is, if I were the same chronological age as my faculty peers - at least in chronological seniority - being ambitious might well be the usual hallmark of starting a career, establishing one's place in the world, developing prestige and reputation, getting tenure, saving for the kids' college education, etc. - and thus not particularly remarkable. So when one is in one's second or third career, what does it mean to be ambitious?
Yes, I think the rankings do have something to do with our subjective views of getting ahead, and I do think there's something about the legal profession that makes OUR rankings so powerful. I used the phrase "progressing up the food chain" with my colleague, and in what industries or professions is the food chain as quantitative as the legal profession? I can still remember my first introduction to the National Law Journal Law Firm 100, sitting there in 1977 as a clueless 2L in an interview room at Stanford with a partner from Kelley, Drye & Warren telling me that this was "need-to-know" stuff as I was thinking about my career.
Here's my thesis. Felten is right in saying that nobody takes undergraduate rankings seriously because the relationship between getting ahead and one's undergraduate degree is fairly attenuated, except in rare cases. That appears to be the case, generally, with med schools as well. Our son just started med school at what would be considered an elite school, but the universal reaction among doctors was that where one went to med school simply didn't make a difference (one's residency may be a different matter). Business schools have their rankings, but MBAs and the companies who hire them don't seem quite as pathological as we do. There are thousands of undergraduate universities and colleges, and, for the latter, ranking is a mere bagatelle.
My observation, however, over 30 years of a career, is there's a lot of self-selection in the process of becoming a lawyer, and even more in becoming a big law firm lawyer or a law professor. I suspect the first element of that self-selection is a particular orientation to progressing up the food chain (says one who knows). There ain't that much to distinguish us; for all that we are white, black, Asian, Muslim, Jewish, whatever, we aren't all that diverse when we get too far below the derma. (I remember that being my instant reaction upon walking into the room at the first law firm partners meeting I attended after returning from five years in the business world.) There are only dozens and not thousands of law schools. Law firms (and even, I think, government agencies employing lawyers), at least compared to all forms of business organization, are relatively uniform in organizational structure. In other words, it's easy to see a well-defined food chain in the relatively small, homogeneous, and closed legal community.
Hence, as I was saying to my friend and colleague, having returned from our summer in Michigan, where I was productive in the way law professors should be productive over the summer, albeit in our lovely house in our lovely resort town, returning to my responsibilities over the academic year in a city (Boston) in which many would give their eyeteeth to live and work, doing a job (teaching) I love to do, and concluding that this particular life was (or should be) idyllic; nevertheless, I find myself having to confront from time to time my own visceral reactions to the food chain - that is, higher (whatever that means) is better than lower. And why, at my age and status in life, should I care? In the words of Pogo, perhaps "we have met the enemy and he is us."*
* Ten bonus points if you know why the picture is relevant.
Thursday, August 20, 2009
The Washington Supreme Court affirmed findings of misconduct and imposed a six-month suspension of an attorney for a conflict of interest in representing both a mother and son (a high school friend) in a family dispute and (for the mother) estate planning services. The clients were involved in a dispute with a sibling of the son. The court found:
The hearing officer found conflict inherent in Ruth [the mother] and Jan's [the son's] various business arrangements. Ruth and Jan were lessor and lessee of the Magnolia real property, and Botimer assisted both of them in this venture. Botimer also assisted Ruth on estate planning matters, while advising Jan as a potential beneficiary of Ruth's estate. Also, when advising on a possible restructuring of ACC, a potential conflict arose in the context of Botimer's representation of Ruth and Jan. Substantial evidence exists on the record to support these findings and conclusions.
The court also concluded that the conduct of the lawyer in blowing the whistle to the IRS on tax returns he had prepared violated his duty of confidentiality:
Botimer offers up a defense to the charge of improper disclosure of client information to the IRS on the grounds that he was fulfilling a legal duty to disclose under federal law. His arguments are not availing. Applicable federal tax code does not create a duty to do more than advise a client of past mistakes... Moreover, the duty to preserve client confidences outweighs whatever marginal benefit gained by reporting past wrongdoings. The crime/fraud exception under former RPC 1.6(b)(1) does not apply to arguably fraudulent tax returns. Finally, Botimer misapprehended his risk of perjury under federal law. Botimer contends that the federal tax code creates a duty on the part of tax preparers to disclose prior false entries on personal tax returns of their clients. The hearing officer found no such duty, based largely on the testimony of a tax expert. The hearing officer was entitled to credit the expert's testimony. Further, construction of the applicable statutes, reviewed de novo, reveals that Botimer's position is untenable. Under 31 C.F.R. § 10.21, a tax preparer "must advise the client promptly of the fact of such noncompliance, error, or omission. The practitioner must advise the client of the consequences as provided under the Code and regulations of such noncompliance, error, or omission." Moreover, 31 C.F.R. § 10.51(a)(4) creates a sanctionable offense only when a practitioner knowingly provides false or misleading information but phrases the offense in the present tense and says nothing about a duty of later disclosure. In addition, the crime/fraud exception does not permit the revelation of prior unlawful conduct in the form of false information placed on a tax return.
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio today imposed an indefinite license suspension against [a]Cuyahoga Falls attorney...for engaging in illegal voyeuristic conduct that resulted in his conviction on multiple criminal counts including felony charges of intercepting electronic or oral communications and pandering sexually oriented matter involving a minor. [His] law license was suspended on an interim basis in February 2008, after the Court received notice of his felony convictions.
The Court adopted findings by the Board of Commissioners on Grievances and Discipline that, although [his] criminal acts were not committed in the performance of his duties as a lawyer, they violated the state attorney discipline rules that prohibit an attorney from engaging in criminal conduct involving moral turpitude and from engaging in conduct that reflects adversely on the attorney’s fitness to practice law.
In imposing an indefinite license suspension, with credit for the months. [He] has been under interim suspension, the Court noted that this sanction requires a disciplined attorney seeking reinstatement to go through an extensive application process in which he must demonstrate that he has recovered the capacity to engage in the competent and ethical practice of law. The Court also imposed special conditions for reinstatement based on the nature of [his] offenses, including no additional misconduct and proof of continuing successful psychiatric treatment and compliance with a recovery contract with the Ohio Lawyers Assistance Program.
The misconduct had its genesis in the attorney's discovery that he could sometimes hear people in his apartment complex having sexual relations. He "started placing a recording device inconspicuously outside apartment windows so he could record residents' sexual activity and later listen to the recording for sexual gratification." A resident saw him and reported to the police. A search of his apartment revealed a substantial amount of child pornography and a "peep hole" that allowed him to view the female resident of the apartment next door.
The attorney presented the testimony of his psychiatrist (an expert in clinical sexuality) that he is being treated for paraphilia, "a condition generated by 'the clash between individual sexual interest and the social rules governing sexual behavior.' " The court expresses concern about whether the attorney can afford recovery treatment, but leaves the issue to a reinstatement hearing. One justice would permanently disbar.
A District of Columbia hearing committee has filed its report in a high-profile bar discipline case against a former prosecutor. The National Law Journal reports:
A former federal prosecutor in Washington was dishonest, interfered with the administration of justice and committed a crime when he doled out thousands of dollars in federal witness money to jailed informants and to individuals who were not in fact witnesses, according to a professional responsibility hearing committee in the District of Columbia.
The two-person Board of Professional Responsibility hearing committee, however, split on its recommended sanction against former assistant U.S. attorney G. Paul Howes, who now works in the San Diego offices of Coughlin Stoia Geller Rudman & Robbins.
Howes, who prosecuted complex drug gang cases in the District during the city's crack cocaine epidemic, was an assistant U.S. attorney between 1984 and 1995. Howes' alleged misconduct has led to reduced prison sentences for at least nine defendants -- several of whom were serving life sentences. The cases at issue were prosecuted while now Attorney General Eric Holder Jr. was U.S. Attorney for the District of Columbia.
In a 90-page hearing committee report, committee member James Phalen said a two-year bar suspension with proof of fitness before he is readmitted to the bar is appropriate. The other member of the committee, John Barker, said Howes should be disbarred. The D.C. Bar Counsel in 2007 rejected disbarment as a sanction in issuing its recommendation of a two-year suspension. Click here for a copy of the report.
The hearing committee said Howes "was an exceptionally tenacious and talented prosecutor with a strong work ethic, and that he handled some of the office's most complex and challenging matters. On the other hand, we find that this record was marred by serious wrongdoing, and we are not inclined to consider it as a significant mitigating factor in these circumstances."
Investigations into alleged misconduct by Howes has spanned more than a decade. The committee, which released its report Wednesday, heard testimony from the bar counsel, Howes and other witnesses more than two years ago. And a decision on the fate of Howes' bar license is still a ways off. The Board of Professional Responsibility and ultimately the D.C. Court of Appeals will also weigh in. Howes did not return a call seeking comment this afternoon. Howes' lawyer, Plato Cacheris of Trout Cacheris, also did not return a call.
Howes, admitted to the D.C. Bar in 1992, was accused of providing vouchers, which paid typically $40 a day to a witness who testified at trial, to individuals who were not entitled to receive them. Howes was also accused of intentionally failing to disclose the use and misuse of the vouchers to defense counsel.
A 1998 report by the Justice Department Office of Professional Responsibility found that Howes, over the course of two years, authorized more than $140,000 in payments to 132 witnesses. Some of the individuals who received the money had no connection at all with the Newton Street trials; others who received money had a thin connection to the prosecution, which was one of the largest and high-profile that Howes was assigned.
Howes told Justice investigators in 1997 that he authorized payment for informants who came to the U.S. Attorney's Office or called the office with information about the Newton Street case. Howes also said payment to informants who were released from jail was meant to get a person back on their feet. The DOJ internal report found that Howes used federal witness money as his personal slush fund. DOJ did not recommend criminal charges because Howes did not benefit personally from the payments.
In 2007, Howes admitted six of the eight ethics violations lodged against him, including false statement of material fact to tribunal, failing to timely dislose evidence that tended to negate the guilt of a defendant, and engaging in conduct that interfered with the administration of justice. The committee said the ethics charges are supported by "clear and convincing" evidence.
Howes contested two charges -- prohibited inducement to a witness and committing a criminal act that reflects adversely on lawyer's honesty. The committee found the evidence against Howes did not support the inducement charge but that his actions did amount to false statements -- a violation of federal law.
The committee members said Howes made false statements when he signed vouchers for jailed witnesses who were not entitled to receive federal money; when he used vouchers to pay for two retired police detectives for their work as "case agents"; and when he used the federal vouchers to compensate two children who were not witnesses.
The case is noteworthy in that the hearing committee deliberated for over two years (actually not so rare, but surprising in such a high profile case) and the first committee chair recused himself. The recusal issue was raised by Bar Counsel because the chair had sat beyond his designated term of service. The chair indicated that he did not participate in the decision in order to remove an issue on appeal or create the basis for a remand. Then, the second committee chair recused himself for undisclosed reasons. The recusal was announced in the committee's report. (Mike Frisch)
Wednesday, August 19, 2009
Posted by Jeff Lipshaw
From Annie Lively at the ABA, we have this posting of a job for the adventurous and idealistic:
American Bar Association, Rule of Law Initiative-Kosovo, Legal Education Reform Specialist (6-12 months, Fall 2009) (Pristina/Mitrovica, Kosovo)
The Legal Education Reform Specialist will be responsible for implementation of legal education reform activities with the University of Pristina – in both Pristina and Mitrovica. Pending the outcome of final discussions with funding agencies on areas of work, the Legal Education Specialist in cooperation with the resident staff, will assist with: the development of the Legal Methodology course, a one semester mandatory credited course; the development and piloting of a new course in Ethics and Professional Responsibility; and the development of a potential Research and Writing course. The Legal Education Specialist will also support the expansion of an on-going simulation legal clinic, as well as a currently piloted Trial Advocacy course and live-client clinic. Additionally, the Specialist will assist in the expansion of a “street law” style program called, TeenLaw. Course development and teaching, and clinical legal education teaching experience is a must. Experience teaching Ethics and writing courses is also preferred. The incumbent should also possess excellent staff management skills. Other requirements include five years relevant work experience, prior experience in formal university legal instruction and/or administration and prior experience in clinical settings (teaching practical skills). Prior knowledge of the legal system and legal education system in Kosovo is preferred. The Legal Specialist will be required to travel within the country and conduct work with two universities. All volunteer participants serving over 90 days receive a generous support package that covers travel, housing, general living, and business expenses. In-country foreign language training and medical evacuation are also included.
Application: To apply for the International Pro Bono Legal Specialist Program, please visit http://www.abanet.org/rol/opportunities/applywithus.shtml to fill out the Online Participant Registration Form. Please also be prepared to upload your resume. Only short-listed candidates will be contacted. For more information, visit http://www.abanet.org/rol.
Additional information is available at the ABA Rule of Law Initiative website.
A Louisiana hearing committee has recommended a six-month suspension with three months deferred and one year of probation in a matter where the attorney had essentially abandoned a client in a personal injury matter. The attorney stipulated to the facts and misconduct, leaving only the sanction issue to the committee. He was cooperative and remorseful but had a prior diversion for misconduct. (Mike Frisch)
Tuesday, August 18, 2009
"Hot Topics in Legal Ethics 2009." Date: Thurs., Aug. 27, 2009, at 1:00-2:00 p.m. eastern time, for 1.0 or 1.2 hours of ethics credit.
Topics include: recent decisions on conflicts of interest, screening, and disqualification (including Caperton v. Massey by the U.S. Supreme Court); how courts are using the rules of professional conduct in malpractice cases; and trends in disciplinary filings.
A Louisiana hearing committee has recommended that disciplinary charges against a lawyer be dismissed. After a previous suspension, the lawyer confirmed with a district attorney that a criminal matter against his client be dismissed. The committee found that the interchange did not rise to the level of unauthorized practice ("If a lay person had contacted the DA to learn the status of [his] intent to dismiss a charge, such conduct would be permissible and would not involve legal advocacy") or violate Rule 3.4 or other charged rules.
In the other matter, the hearing committee found that a two-month delay in proceeding with a child custody did not amount to an ethical violation: "Although all clients want their issue handled immediately, if not sooner, a two-month delay is hardly an ethical violation and it is highly doubtful it could even be considered malpractice."
The committee concluded that any violations were de minimus and that a letter of public reprimand is appropriate if any violation is found on review. (Mike Frisch)
Not a Legal Profession case, but of possible interest is a decision yesterday from the Washington Court of Appeals Division 1. The court's holding:
Should civil liability be imposed upon those who plan and
furnish beer for a high school graduation keg party where criminal violence
erupts? The appellant Hazel Cameron is the mother of a boy who died as a
result of being assaulted at a kegger. She requests that a jury be allowed to
decide whether the assault was a foreseeable result of providing unlimited beer
to teenagers in a remote location without supervision. But to maintain either a
common law or statutory cause of action for assault caused by the negligent
furnishing of alcohol to minors, the plaintiff must prove that the assailant had
violent tendencies known to the furnishers. Because the record lacks such
proof, the trial court did not err in dismissing the case on summary judgment.
A case decided today by the North Carolina Court of Appeals affirms the grant of summary judgment to the defendant-lawyer in a legal malpractice case. The plaintiff in the malpractice case had falsely claimed that he had a valid lease to have a billboard on the property of another. The lawyer had defended the former client in a defamation case that led to a large adverse judgment, which was collected. The liar then sued his lawyer.
The court concluded that the plaintiff "well knew" that he had no lease but "continued to assert his non-existent interests, giving rise to his liability." While the "[p]laintiff persuasively argues that the [lawyer] violated several [state bar ethics rules]...it is not appropriate to address the attorney's misconduct in an action for malpractice." Rather, the client's intentional wrongdoing in the underlying case barred a malpractice cause of action against the lawyer. (Mike Frisch)
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio Office of Attorney Services issued a warning today about an Internet scam affecting Ohio lawyers. Multiple individual attorneys and law firms have contacted the Supreme Court about the scam.
Here’s how the scam works: An Ohio lawyer receives an e-mail purportedly from another lawyer for collection of a debt. A follow-up e-mail arrives from the supposed debtor (who is also the client), seemingly legitimate, who sends a bogus check for payment. The Ohio lawyer is instructed to pay the debt by wiring some of the funds to the creditor and to keep a portion of the funds as payment for his/her attorney fees. The Ohio lawyer then deposits the check in his/her Interest on Lawyers Trust Account (IOLTA), wires funds to the creditor, and retains the agreed upon amount as attorney fees.
Meanwhile, the check goes through international banking channels until it’s eventually discovered that insufficient funds are available in the account to cover the amount. The bank debits the IOLTA for the amount of the returned check, while the lawyer has wired “good,” client funds to the purported creditor.
The proposed client is typically an actual Asian company—although the scammers have no connection with the company. Also, sometimes the scammers use real lawyers’ names in the initial e-mail.
Attorneys are advised to exercise caution when approached by unknown attorneys seeking to enter into financial transactions involving foreign entities. To report a suspected online crime, contact the FBI at www.ic3.gov.
Susan Christoff, Attorney Services director, said bad checks deposited in IOLTAs, however small, can have a negative impact on the delivery of legal services for those who need them most.
Each Ohio attorney – or the attorney’s employer – that escrows funds of others that are nominal in amount or held for a short period of time must have an IOLTA. Interest from IOLTAs funds the Ohio Legal Assistance Foundation, which distributes these funds to the state’s legal aid societies to provide free legal aid to the poor.
Monday, August 17, 2009
The web page of the Massachusetts Board of Bar Overseers/Bar Counsel summarizes a recent disciplinary sanction:
On June 19, 2009, the Supreme Judicial Court for Suffolk County ordered that the respondent...be suspended from the practice of law for two months effective July 19, 2009. The sanction arose from the respondent’s continuing to practice law after her administrative suspension for failure to pay her annual registration fees.
The respondent received her annual registration statement from the Board of Bar Overseers in February 2005 but failed to respond or to complete and return the registration statement. On November 1, 2005, upon the petition of the Board of Bar Overseers, the court entered an order of administrative suspension against the respondent for her failure to register and pay her annual registration fee.
The order required the respondent immediately to cease practicing law, and, if she was not reinstated within thirty days, to abide by the requirements of S. J. C. Rule 4:01, § 17. The respondent received this order.
Between November 15, 2005, and January 7, 2008, the respondent knowingly disobeyed the order of suspension by holding herself out as a lawyer authorized to practice law in the Commonwealth, accepting fees for legal services, and representing clients both in and outside of court proceedings. She also failed to notify her clients, courts, or opposing counsel of her suspension or otherwise comply with the requirements of S.J.C. Rule 4:01, § 17.
The respondent’s failure to register and pay an annual registration fee constituted a violation of S.J.C. Rule 4:02(1) and (3) and S.J.C. Rule 4:03. Her knowing disobedience of her obligations under these rules and of the order of administrative suspension violated Mass. R. Prof. C. 3.4(c) and 8.4(d) and (h). The respondent's conduct in practicing law after her administrative suspension violated Mass. R. Prof. C. 5.5(a).
In mitigation, the respondent’s failure to register and unauthorized practice occurred during a time when an immediate member of the respondent’s family was suffering from a mental illness and undergoing a serious crisis requiring direct, daily care by the respondent. The burden on the respondent caused substantial stress and significantly distracted the respondent from the requirements of her legal practice.
This matter came before the Board of Bar Overseers on a stipulation of facts and rule violations and a joint recommendation for a two-month suspension from the practice of law. On June 8, 2009, the board voted to accept the stipulation and recommend the agreed-upon disposition to the Supreme Judicial Court for Suffolk County. On June 23, 2009, the county court entered an order suspending the respondent for two months, effective July 23, 2009.
An interesting case from Montana involved a medical malpractice action brought by a widow on behalf of her late husband's estate against a doctor and a clinic. The plaintiff's attorney delivered the closing argument as a first-person narrative that the lawyer described on appeal as "[c]hanneling...as though he was the decedent."
When he started to describe what it felt like being autopsied, "[t]his got to be more than some could bear." A juror thought she would pass out and was attended to by the defendant, plaintiff's co-counsel (who is also a physician) and three other jurors who also were nurses. Plaintiff then sought a mistrial, which was denied. An alternate juror was seated and a defense verdict was returned.
The Montana Supreme Court reversed. The jury here saw the defendant "reacting to a real-life situation and apparently successfully delivering life-saving care. The effect on the jury is immeasurable, whether or not the individual jurors admit it or even consciously know it." The court made it clear that "no fault is assigned to any of those who responded to the ill juror in the courtroom."
How many of us can say that we were able to get a new trial because our closing argument made a juror violently ill? (Mike Frisch)
The North Carolina State Bar has filed charges alleging that a law firm associate had, in four instances taken fees due to his firm for his personal use. The bar's web page is as informative concerning charges as any I've seen in my internet travels, as it provides access to the charging document, answer (if any), identity of the hearing panel members and the location and date of the scheduled hearing. An example for all state bars to follow, in my view. (Mike Frisch)
American University's law school is hosting this year's conference for LatCrit XIV and the LatCrit/SALT New Faculty Development Workshop; the schedule and preliminary program is here. The conference takes place in D.C. and Bethesda, Maryland. Registration and cheap hotel info is here. Subject: The conference theme for LatCrit XIV is "Outsiders Inside: Critical Outside Theory and Praxis in the Policymaking of the New American Regime." Early bird registration before Labor Day is especially affordable. Note, too, the program for development of new and junior faculty, cosponsored by SALT and the University of Denver, including an eye-opening mock “Job Talk” for law teaching aspirants.