September 5, 2009
Blogging, the Difference Between Talking and Writing, and How Blogging as Writing Supports Scholarship
Posted by Jeff Lipshaw
One of the reasons I like blogging is that it forces me to write my thoughts instead of speaking my thoughts. I worry about e-mail, and instant messaging, and Tweet, because they all blur the distinction between what is meant to be read and what is meant to be heard. Many years ago, I argued a case in the Michigan Supreme Court, and not to put too fine a point on it, the appellee's brief was moderately incoherent. I thought then the reason was it clearly had been dictated and transcribed, and not written. That was talking when it should have been writing.
On the other hand, blogging as though you're writing can be boring. There's certainly a lighter and more conversation style. I'm using it right now. But there is something about seeing the letters appear magically in the text box that imposes (on me, at least) a certain discipline. Unlike my spoken words, which evaporate as they are spoken (be quiet!), the written ones, even in cyberspace, live on.
That gray area between talking and writing has an analog in the production of scholarly thinking. I'm not sure if it's passe now, but only a couple years ago there was a whole day colloquium at Harvard on whether blogging counted as scholarship (I remember sitting in my home office in Indianapolis, which means it was early 2006, listening to a web cast and hearing Kate Litvak dis it, and Larry Solum promote it). Not that I would ever go out of my way to do an ego-search on Westlaw (cough, cough), but as long as I was there, I noticed that the last several citations to my work have been blog posts, not articles!
Over at The Conglomerate, Darian Ibrahim scribed some interesting thoughts on rational actor economics and behavioral economics as the theoretical bases of regulation, particularly comparing entrepreneurial markets and public markets. I wrote a comment, and when I got done, I realized that I had capsuled a point better there than I had in my paper to which I referred. It was, I am sure, the discipline of writing, even if ephemerally. This morning I just got done modifying it into the concluding paragraph of the introductory section of The Epistemology of the Financial Crisis: Complexity, Causation, Law, and Judgment (happily soon to appear in a prestigious law review near you!). For what it's worth, here's the paragraph:
The overriding theme is that regulation needs to have an epistemological modesty about it, a certain lack of presumptuousness, all of which is belied by disciplines that think that critical causes can be reduced to (a) simple utility functions (rational actor economics), (b) complex functions that can actually model the world's almost infinite contingency (behavioral economics), or (c) an after-the-fact ascription of blame (law). The right answer, I suggest, is that broad policy requires relatively simple models, the necessary downside being there is only so much regulation of a complex world can accomplish. The crisis of epistemology in 1755 was that even after Newton's accomplishments in physical science, an earthquake still destroyed Lisbon, and the crisis of epistemology in 2009 is that all the algorithms in the world are not going to stop financial bubbles. The problem is endemic to all forward-looking judgments. Nobody knows until after the fact whether the entrepreneur is a peerless visionary or a self-deluded wacko, any more than I really know until after the fact that today is the day I should jump ship from the public securities markets because today they became a bubble.Hmm. I wonder if the law review editors are going to want to take out "wacko"?
September 4, 2009
Lessons for Teachers from Being a Student
Posted by Jeff Lipshaw
This wasn't my rationale for taking lessons in riding a horse this past summer, and continuing now that we are back in the Boston area, but what has occurred to me is the benefit to a teacher of being a student in a discipline as to which the teacher-student is an utter neophyte. (I'm not sure I had any rationale - I've tended to a midlife crisis every five years or so since I was 35, and if I can get through this one just by riding a horse I will have done pretty well.) Suffice it to say that other than a pony ride when I was five years old, and sitting on a merry-go-round, I had never gotten up on one. I've now had six hours of lessons with four different instructors (all excellent, by the way) at two different stables, and here are some random thoughts not so much about riding as about my reactions to be taught something.
1. I am incredibly insecure. Tell me every once in a while that I'm not a complete disaster. Indeed, it's encouraging to get at least as much praise for what I'm doing right as the corrections I need.
2. I feel pretty stable up there, but every once in a while the horse does something I've not experienced before, and it is a little scary (e.g., steps on a stone, bucks her head a little and sneezes, etc.). It helps to say something to the instructor and be reassured that nothing unusual or wrong is going on.
3. I'm not a natural athlete - I'm analytical to a fault and can be affected by what is known as "paralysis by analysis." I'm trying to translate what is a matter of athletic feel into my own sensory and linguistic images, and I can only absorb small bites at a time. And it helps to keep repeating the point over and over.
4. Sometimes we miscommunicate, or I interpolate an instruction from earlier into a new lesson. For example, you steer the horse both with how you move the reins and the pressure you apply with your legs. When I am trying to ride on the very outside of the ring, I have to press a little with the leg away from the fence to keep the horse from moving toward the center of the ring. We then started steering in figure 8s around cones, and now I want to apply pressure with the leg in the direction I actually want the horse to turn. But that was opposite to the previous instruction where I was using counter pressure to keep the horse in a line. I just didn't hear it well. The solution was to recognize that I was confused, stop, and say "I'm confused."
5. I'm also not a naturally relaxed athlete (something that keeps my handicap in golf high), and my inclination is to try too hard, get real tense, and create resistance to what I'm actually trying to do. A friend with whom I played golf over the summer (he's 67 and a 4-handicap, as well as a first rate tennis player) said, "in these sports, we always have a lot more time than we think we do." Take a deep breath. Don't panic. Sit tall. Don't overthink the problem.
6. Posting is the process of raising and lowering your lower body in the same rhythm as the horse's walk or trot (I assume canter as well, but I've not cantered yet). It is a physical movement not natural, I think, to men (and I can't say for women). The closest analog is to Pilates - small moves that engage your abs, inner thigh, and butt (sorry!). You know it when you do it, but it's not easy. It really helped one day when another rider was in the ring, and I could watch her.
My current instructor is Meg Howes at Verrill Farm Stable in Concord, Massachusetts, and she's a really good teacher!
September 3, 2009
No Evidence Of Bias In Bar Proceedings
The Oregon Supreme Court disbarred an attorney who had a record of prior discipline. Apparently, the lawyer had previously accused the Bar Counsel and the Bar's Executive Director of bias against him. Here, the court rejected the claims on the merits:
In this proceeding, the accused attempted to make the record that he failed to make in Paulson III. In particular, the accused called the Bar's Disciplinary Counsel, Jeff Sapiro, and its then-Executive Director, Karen Garst, as witnesses. The accused also put in a range of documentary exhibits, such as statistical studies of the Bar membership examining the extent to which the general membership perceives the disciplinary process as fair or biased (and if biased, on what basis), and letters from other persons who had been subject to the disciplinary process in the past and who thought that their particular proceedings had not been fair. In attempting to show that the disciplinary proceeding against him was impermissibly motivated, the accused also relied on the timing of earlier disciplinary proceedings against him, which he asserted coincided with activities in which he had engaged that had caused Sapiro and Garst to be vindictive towards him.
The trial panel -- which the accused does not challenge as biased in any way -- took his claims seriously and addressed them expressly. The trial panel accurately captured the essence of the theme that pervades the accused's arguments in this case:
"These defenses are alleged in a manner suggesting a common theme -- the Bar has treated the Accused differently than other members of the Bar accused of wrongdoing and has done so because the Accused objected to the manner in which the Bar conducted its business; had objected to the disciplinary process as part of a disciplinary system task force some years ago; had been openly critical of Jeff Sapiro and his office; had raised issues of improper ex parte conduct about his case(s) between the Board of Governors and the Supreme Court; and had complained about delay and retaliation against him. In short, that the Accused's assertion of his rights over the past several years has resulted in such animosity towards him that the claims of misconduct by the disciplinary counsel's office have been and are spurious and raised solely to retaliate and silence the Accused."
The trial panel found no persuasive evidence that either Sapiro or Garst had a vindictive or retaliatory motive in taking any action connected with the disciplinary proceedings against the accused. To the contrary, the trial panel found expressly:
"[T]he Accused examined both Karen Garst and Jeffrey Sapiro. The Trial Panel listened to that testimony carefully. The Accused argues the timing of all that has happened to him is sufficient evidence of animosity. While there are inferences that can be drawn in favor of the allegations of the Accused, they do not arise to a level that satisfies the Accused's burden of proof. While Sapiro admitted he was not happy about the federal court civil suit the Accused filed against him and other Bar leaders, there is no convincing evidence the allegations raised in that case, the defenses filed in Paulson II, or those in the case at bar have affected his judgment. In short, the panel finds that the Accused has taken the process very personally while Garst and Sapiro have taken it professionally."
Later, in the discussion and conclusion section of the trial panel's opinion, the trial panel further addressed the accused's claim that the disciplinary proceedings against him were impermissibly motivated:
"We have discussed [the accused's prosecutorial misconduct defenses] above, and are unable to find prosecutorial misconduct in this case. We carefully reviewed the documents in this case, including those offered by the Accused; observed the demeanor and actions of disciplinary counsel and trial counsel for the Bar; and observed the testimony of both Karen Garst and Jeff Sapiro. While the Accused may believe there was a vendetta against him by the Bar, it has not been proven by any reasonable standard. It is true that the Accused has leveled a long series of charges against the Bar over a period of years and that those assertions have been emotional for all concerned. Throughout this time, however, the panel must conclude officials of the Bar seem to have acted properly. That said, the panel would feel differently if the prior disciplinary cases against the Accused (as well as the charges pending here) had been determined to be without merit. Even at that, however, we are not certain that facts that might amount to a tort claim for malicious prosecution are a viable defense in an unrelated disciplinary case."
The trial panel's rejection of the accused's claims of vindictive and retaliatory "prosecution" turned significantly on the panel's credibility assessments of both the accused and the Bar staff. We appropriately defer to those assessments. The accused's theory of vindictive and conspiratorial motivation for the proceedings against him collapses with the trial panel's finding, which we make as well, that neither Sapiro nor Garst took any action that led to the disciplinary proceedings out personal animus against the accused. In addition, as the trial panel observed, and as this opinion earlier concludes based on our de novo review, the complaints against the accused all have proved to be well-founded. Bar staff would have been remiss in meeting their responsibilities had they not investigated those complaints. Likewise, they would have been remiss had they not pursued the additional disciplinary violations that they discovered in the course of their investigations (viz., the violations related to the accused's unauthorized practice of law when his suspension began). Having reviewed all the evidence that bears on the accused's claim that the disciplinary proceedings against him had been brought for impermissible motives, we conclude that the evidence disproves the accused's defense. Consequently, just as the trial panel did not need to decide when a claim of vindictive or retaliatory "prosecution" in a disciplinary proceeding will provide a valid defense to proven disciplinary violations, so, too, do we not need to decide that question.
The court also rejected so-called "affirmative defenses" and constitutional challenges to the bar disciplinary system. (Mike Frisch)
Disabled Because I Say So
The Montana Supreme Court granted a request by an attorney to be transferred to disability inactive status over the objection of the Commision on Practice that there was no disability. The court concluded that the pertinent rule required that any request for disability status be granted whether or not there is a real disabling condition. The rule contains three methods to achieve disability status that are stated in the disjunctive. Under the first method, the mere assertion of the claim requires that the court enter a disability order. Of course, the status does not end disciplinary matters, which are stayed until the disability is removed.
I would not be shocked if the court now amends its rule to require a showing of disability before a lawyer can halt ongoing proceedings based on an unsupported claim. (Mike Frisch)
Too Vague To Sanction?
An interesting (at least to me) bar discipline recommendation from the Illinois Review Board overturns several findings of a hearing board and proposes a one-year suspension for conversion and breach of fiduciary duty, among other things. The circumstances involved the lawyer's actions as an employee of two firms, both of which discharged the lawyer when improper activities were discovered.
The most interesting aspect of the decision is a dissent by a board member. The board member notes that the terms "conversion" and "breach of fiduciary duty" do not appear anywhere in the rules governing attorney conduct. Thus, discipline predicated on such findings violates the accused attorney's due process rights:
I specifically take issue with the first two charges in each of the eleven counts: those for "conversion" and "breach of fiduciary duty" as I believe those charges implicate Constitutional concerns grounded in fair notice. See e.g. United States v. Cardiff, 344 U.S. 174, 176, 73 S.Ct. 189, 97 L.Ed. 200 (1952). ("The vice of vagueness in criminal statutes is the treachery they conceal either in determining what persons are included or what acts are prohibited. Words which are vague and fluid, may be as much of a trap for the innocent as the ancient laws of Caligula.") I also take issue with the manner in which the Hearing Board treated civil proceedings related to the case, and the majority's tacit approval of that treatment.
The dissenting member would remand for further proceedings:
None of this is to say that Respondent's conduct is somehow beyond all possible bounds of the Rules of Professional Conduct. Although I share many of the sentiments expressed in Chairman Hooks's dissent to the Hearing Board's Report and Recommendation, the Rules do contemplate discipline for misconduct involving dishonesty, fraud, deceit or misrepresentation - whether it involves a client or an attorney's intra-firm dealings. I believe it incumbent on both the Hearing Board and Review Board that we insist that the Administrator try misconduct of that nature within the confines of the existing (or amended) Rules - rather than on the broader, murkier bases available in tort.
For all of the reasons foregoing, I would dismiss the charges of "conversion" and "breach of fiduciary duty" in each of the eleven counts and remand the case to the Hearing Board for proceedings under the appropriate charges based in the Rules of Professional Conduct
The hearing board report is linked here. (Mike Frisch)
The Second Time Around
The District of Columbia Court of Appeals disbarred a lawyer "for his cumulative conduct over more than ten years evincing (in Bar Counsel's summation) 'non-negligent misappropriation and dishonesty...' " and other misconduct.
The court cites an earlier case involving the same lawyer where a six-month suspension was iimposed for similar misconduct. The court here appends to its opinion the report of the Board on Professional Responsibility that had recommended the sancton imposed by the court.
It is noteworthy that, in the earlier case (decided in 2001), the hearing committee had recommended disbarment but the board and court rejected that recommendation. If the recommendation had been followed (as I thought it should have been), a lot of time, trouble and additional victims would have been avoided. (Mike Frisch)
September 2, 2009
Drawing the Right Lessions from the Bleak Entry-Level Legal Job Market
[by Bill Henderson, co-posted to the ELS Blog]
As the fall progresses, many law students and law school administers will be trying to assess the direction of three market trends: (1) the number or percentage of summer associates who receive offers of permanent employment; (2) the prevalence of deferrals among those lucky enough to be offered jobs; and (3) the volume of summer offers coming out of this year's OCI process. Nobody expects cheery numbers. But as the market information comes in over the next few months, law schools will be in a better position to assess the new landscape.
- Naivete. The modal student entering law school is not homo economicus. Rather, he or she is young, inexperienced, and overly impressed with branding--largely through US News--and the opinions of peers. IQ does not shield the young from overconfidence and the reflexive desire to impress others through the acquisition of positional goods. Indeed, sometimes intelligence in the absence of commonsense can make matters worse.
- Poorly Priced Credit. Banks have lent students funds without a sharp eye to repayment risk. The terms of loans are largely the same regardless of law school attended, geographic market conditions, and law school performance. Yes, historically law students have repaid their loans. But that is the same sloppy logic that created the housing bubble. The only way the math works is if the vast majority of law school graduates, despite low or no starting salaries, experience a steady, multi-year surge in income. This is a foolish assumption for anyone who understands the current state of law firm economics. Of course, just like most home mortgages, student debt over and above the Federal Stafford Loans, often get bundled together, turned into securities, and sold.
- Law Schools are Self-Interested and Locked in a Positional Competition. This is not a criticism; it is a statement of fact. Law schools work very hard to manage their market position, including their US News rank, because students and alumni can be completely demoralized with a significant decline. It does not matter if the decline in quality is illusory; stakeholders will declare the patient sick. This may surprise naive law students, but law schools cannot be counted on to be an objective broker. We need a regulator to level the playing field and force us to be transparent. Which brings me to my fourth point ... .
- Failure of Self-Regulation. The ABA Section on Legal Education and Admission to the Bar bears some responsibility here, but not become it has accredited too many law schools -- the antitrust implications of barring market entry are real. Rather, the Section has become too focused on the comfort of its law school members. If the Section collected and published detailed employment outcome information in a way that facilitated school-to-school comparisons--yes, just like US News--the information would trickle down to potential law schools. It is not helpful to say that 15% of a school's graduates work in business -- they need to know how many of those 15% are waiting tables, driving a cab, or selling insurance. Re jobs in private practice, how many are working as contract attorneys? Nobody really knows, and the issue is not on the Section's agenda. If these data are published, some law schools would probably go out of business.
Charges Reduced, Discipline Imposed
The web page of the California Bar Journal reports:
[An attorney] was suspended for one year, stayed, placed on three years of probation with a 60-day actual suspension and was ordered to take the MPRE within one year. The order took effect Feb. 25, 2009.
[He] pleaded guilty to misdemeanor third degree assault in 2006 after an incident during a dinner party at his home. A guest who suffered from narcolepsy fell asleep in a guest bedroom and when she awakened, she discovered [him] touching her shoulder, waist and hips. He was charged with two counts of felony sexual assault and misdemeanor unlawful sexual contact.
However, the charges were dropped after a physician concluded that the woman’s description of the incident was not supported by medical evidence, research and her own medical records. The authorities filed the misdemeanor assault charge against [him] as part of a plea agreement in exchange for dismissing the other charges with prejudice. The misdemeanor did not involve unlawful sexual behavior.
[The attorney] was sentenced to 60 days in jail, was released early for good behavior and is undergoing treatment for substance abuse.
He was publicly reproved in 2000 following convictions for simple assault, possession of a prohibited weapon and possession of an unregistered firearm, all misdemeanors.
In mitigation, he demonstrated remorse by apologizing to the woman before he knew the matter was reported to the police.
Charges Of Overbilling, Telephone Harassment
The Illinois Administrator has filed discipilinary charges in two counts. the first count alleges overbilling for court-compensated representation of juveniles:
Cook County compensates attorneys who participate in the program at set hourly "in court" and "out of court" rates. The attorneys receive authorization for their compensation by presenting to the respective trial judges fee petitions accompanied by affidavits attesting to the work they performed on specific dates. The presiding judges then review the petitions on the specific cases pending in their courtroom and grant orders to pay the attorney. The attorneys then present the orders and copies of their fee petitions to Clerk of the Cook County Board of Commissioners for approval. Once approved, the Cook County Treasurer issues payment to the attorneys.
In the first half of 2006, Respondent presented to the Clerk of the Board orders for payment totaling $350,000, representing services from June 2001 to June 2006. These billing statements included itemizations of the time Respondent purported to expend on various cases, the services purportedly provided on that case, and the applicable hourly rate. For various dates listed below, Respondent’s statements sought payment for time exceeding twenty hours in a given day...
The second charge involves allegations of telephone hasassment of his son's mother:
On April 29, 2008, Respondent called [the victim's] home and left messages on her phone machine including statements as "I’m going to kick your high yellow ass," "If I go to court I’m going to get you in court and it’s going to take ten police officers to pull me off of you;" and "I’m going to kill you," several times in the same message.
On January 29, 2009, Respondent called [her] home and left a phone message stating "I’m going to get your ass, bitch;" and I will cut off the head of any man who lays hands upon [his son] and place his dismembered head on the vehicle of the man’s car.
On February 4, 2009, Respondent called [her] home and left a message that he was going to get "his boy" to pull a gun and put it to Anderson’s as well as statements that he was going to send a "real clear message" and that he would break Anderson’s neck and stomp on her wherever she was if she called the police.
Respondent made the phone calls described in [the above] paragraphs...with intent to abuse, threaten or harass [the victim].
As a result of the phone calls described in paragraphs four and five, on February 5, 2009 a misdemeanor criminal complaint was filed in the Circuit Court of Cook County, People of the State of Illinois vs. Jeffrey Luckett 09 MC 1463.
On June 18, 2009 a bench trial was held in case 09 MC 1463. At the conclusion of the trial, Judge Donnelly entered a sentence of conditional discharge and sentenced the Respondent to thirty days of Sheriff’s Work Alternative Program and two years conditional discharge.
CLE Obligations and Unauthorized Practice
An attorney who had continued an active practice before state and federal courts after being placed on inactive status for failure to complete CLE obligations agreed to an 18 month suspension. The sanction was imposed pursuant to the agreement by the Pennsylvania Supreme Court. The attorney had failed to notify his law firm of his suspension.
As we have previously mentioned, Pennsylvania is a jurisdiction that takes a particulary dim view of unauthorized law practice in such circumstances. (Mike Frisch)
Prepare for the Bar at HarvardThere was a poster for this on the subway this morning. I did more than a double take when I saw the unmistakable crimson VeRiTas logo. You can get Harvard on your resume for only $225 and in one day. And it is bar-related. [Jeff Lipshaw]
September 1, 2009
He That Bills By The Sword...
A disciplinary summary from the web page of the California Bar Journal:
[An attorney] was suspended for one year, stayed, placed on one year of probation with a 60-day actual suspension and was ordered to take the MPRE within one year. The order took effect Feb. 25, 2009.
[The attorney] stipulated to six counts of misconduct in his representation of a client in his divorce and a beef with his neighbors. In lieu of attorney fees, he accepted two Japanese military pieces, a helmet and a hand sword guard. Without obtaining an expert appraisal, [the attorney] and his client agreed the sword was valued at $1,500 and the helmet at $2,500 to $3,500. [He] applied the value of the helmet to his attorney fees and the value of the sword guard to the divorce. He did not advise the client to seek independent legal advice or put the terms of the arrangement in writing.
His client won a judgment and attorney fees in the neighbor dispute, and [the attorney] was to receive their payments. He did not notify his client that he received funds and did not deposit the money in his client trust account, nor did he disburse the funds to his client. He also did not begin collection efforts when the neighbors failed to make their monthly payments.
The client then hired another lawyer to collect on the judgment, but when he contacted the neighbors’ lawyer, he was told the money had been paid. [The attorney] did not pay his client the funds despite a request to do so. The client then sued [him] and won a default judgment for $4,000.
In the divorce case, [his] bill showed a $633 credit due the client, but he never refunded the money.
[The attorney] stipulated that he failed to perform legal services competently, refund unearned fees, deposit funds in a client trust account, notify a client of the receipt of funds or promptly pay out those funds, and he entered into a business transaction with a client without fully disclosing the terms of the transaction.
In mitigation, he cooperated with the bar’s investigation and he had no prior discipline record.
The Rising Cost Of Private School
The Illinois Administrator has filed a complaint charging that an attorney had provided false information and phony tax returns to a private school in order to obtain tuition assistance that the child would not otherwise have been entitled to receive. The allegations contend that the conduct took place over several school years. The charges further allege failure to cooperate with the disciplinary process:
On March 20, 2009, April 2, 2009, and April 15, 2009, the Administrator attempted to serve Respondent via certified mail with a subpoena duces tecum commanding him to appear at the Chicago office of the Commission to produce materials and to offer testimony responsive to the allegations raised by the complaining witnesses in investigation no. 06 CI 00225. Each of the certified letters was returned unclaimed.
After having made four unsuccessful attempts to serve Respondent personally with the subpoena duces tecum, described in Paragraph Twenty-Four above, Humberto Bobadilla, Senior Investigator for the Commission, telephoned Respondent on April 6, 2009 at Respondent’s home telephone number. Respondent answered, and the investigator told Respondent that he was attempting to serve him with a subpoena duces tecum to appear at the Commission’s offices for a sworn statement. Respondent advised the investigator that the Commission "should just proceed with what you have to do; I am not going to accept service or participate."
On July 1, 2009, Respondent was personally served with a subpoena duces tecum commanding him to appear on July 7, 2009 at 10:00 a.m. at the Chicago office of the Commission to produce materials and to offer testimony responsive to the allegations raised by the complaining witnesses in investigation no. 06 CI 00225.
Of Pedagogical Epiphanies and the "On Call" List - Will the Deontological Prevail Over the Consequential in Class Participation?
Posted by Jeff Lipshaw
As previously noted, I ditched the seating chart in favor of tent cards with students' names. I am also having classes recorded and posted as MP3s on TWEN. The quality of the discussion yesterday on a normally discussion-proof topic - the establishment of the agency relationship - was the best in the four consecutive semesters I've now taught the class. This is notwithstanding my extreme laissez-faire attitude about laptops in the classroom. Could it be students are backing off transcription-style note-taking because of the MP3 backup? I do not perceive any fall-off in attendance (given my laissez-faire attitude toward attendance-taking, I can't be sure of that either). This is not an apples to apples comparison as I have taught the class alternately at 10 a.m. and 4 p.m., and the 10 a.m. class seems to have more energy generally, merely on account of time of day. But hope springs eternal.
Normally, by the third class, I've circulated an "on-call" list. This has its own history. My first experience teaching upper-level students was a three-credit class on Sales at Wake Forest in the fall of 2005. I'm willing to go public and say that it was (euphemistically) a learning experience, or more honestly, a disaster. Among other things (like coming to grips with how much you have to learn to teach a subject you thought you already knew!), I was still struggling with my own resistance to calling on people, particularly in the upper-levels, as an artifact of Socratic-style power relationships within the classroom. The result, however, was that most students weren't prepared, and my attempt to elicit dialogue (still my preferred method) by way of guilt-inducing doleful puppy-dog stares out at the assembled multitude only spurred on a few, and always the same, volunteers, leading to some comments in the evaluations to the effect that I seemed to favor just a few students. So I went to the "on-call" list as a compromise, first with a threat of grade-dinging if the students were absent or unprepared, and evolving into a kind of early-warning system to the students that I might call on them, but without either carrot or stick because (a) I didn't keep track of attendance, (b) I don't really do Socratic - I just pose questions and move on quickly if nobody knows the answer, and (c) I never punished anybody.
Yesterday, before class, I was trying to decide if the "on-call" list was now inconsistent with the other laissez-faire methodologies, and, as I explained to the class, I decided that the form into which it had evolved was not inconsistent, but the name was. That is, I know a lot more than the students do, but the class is more interesting if we have other voices than mine doing the teaching. I'm the director in a way; the students, if well-directed, help me teach, making it kind of a shared experience, rather than either lecture or Socratic brain teaser. So I've decided to rename it the "Co-Teaching List," which I think more aptly reflects the voluntary, team-oriented spirit of what I'm trying to do. In short, will students contribute to the success of the class as a matter of duty or obligation versus fear of adverse consequence? Or is my idealism once again getting the best of me?
The latest edition of the Georgetown Journal of Legal Ethics (Vol. XXII, No.3 Summer 2009) just hit the streets. The Current Developments 2009-2009 student notes cover a wide array of emerging ethics issues such as risks of online peer advice, implications of online disciplinary records, proposals for regulating legal hotlines, a discussion of nonconsensual screens, making sense of inadvertant disclosure and many other valuable and interesting topics.
The articles may be found at the following link.
Disclosure: I am biased as I serve as journal co-faculty advisor with Professor Mitt Regan. (Mike Frisch)
Probation For False Statement To Police
The latest edition of the California Bar Journal reports the following discipline:
[An attorney] was suspended for two years, stayed, placed on two years of probation and was ordered to take the MPRE within one year. The order took effect Feb. 25, 2009.
[The attorney] stipulated to two counts of misconduct. He represented a client whose mother paid [him] $75,000 to handle her son’s criminal matter, which was resolved through a plea agreement. The client’s son was represented by another lawyer in a dependency case. [The attorney] believed his client and his mother were concerned about an ongoing police investigation in the dependency matter and felt pressure to learn when and where a second police interview was scheduled. He believed the information would help his client with any legal steps he might need to take.
[The attorney] called the police and falsely identified himself as the attorney for his client’s son. When he tried to intervene on the father’s behalf, the court denied his motion. He agreed to refund $40,000 to his client’s mother as unearned fees, but only returned $5,000. [He] stipulated that he made false statements to the police and failed to refund unearned fees.
In mitigation, he has no prior discipline record, cooperated with the bar’s investigation, had significant financial and emotional stress due to his divorce, and he eventually refunded the full $35,000, plus an additional $5,000, to his client.
Third Party Fiduciary Obligations
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio will accept public comment until Sept. 30 on a proposed rule change about lawyers’ duty to safeguard client funds and property in which third persons claim an interest.
The proposed amendments to Prof. Cond. R. 1.15(d) and Comment  are based on a 2007 Advisory Opinion issued by the Board of Commissioners on Grievances & Discipline and recommendations issued in late 2008 by a special Ohio State Bar Association committee.
The current rule requires a lawyer to protect the interest of a third-party in client funds and property held by the client, unless the claim is frivolous. The proposed rule changes specify that a lawyer must have “actual knowledge” of a third person’s interest and that the claimed interest must be “a statutory lien, a final judgment addressing disposition of the funds or property, or a written agreement by the client of the lawyer on behalf of the client guaranteeing payment from the funds or property.”
Changes proposed to the comment portion of the rule offer guidance about a lawyer’s ethical duties depending on whether the funds or property is in dispute and whether the client or third person’s claim to the funds or property is lawful. Where there is a dispute over interest in the funds or property, a lawyer must hold the funds or property in a trust account separate from the lawyer’s funds, until the dispute is resolved.
Update: go to this link and click on Opinion No. 07-007 to find the Advisory Opinion.
Why Not Reciprocal?
The Maryland Court of Appeals disbarred an attorney convicted of felony immigration fraud. The attorney also was admitted in New York, where the Appellate Division for the First Judicial Department had imposed a one-year suspension.
A dissent questions why reciprocal discipline based on the final order in New York was not considered. New York had "acted first" and imposed a sanction over a year ago. Under reciprocal discipline principles, the same sanction is imposed unless there is clear and convincing evidence that a different sanction is warranted. The case that the dissent cites at page three is one I handled where Maryland concluded D.C. (i.e. me) was too light on sanction. Under the circumstances here, the dissent would impose indefinite suspension rather than disbarment. (Mike Frisch)
August 31, 2009
Why You Want to Think Twice About Having Children
Posted by Jeff Lipshaw
Son James and I went to New York City this past weekend to see daughter Arielle's brilliant production of Tell It to Me Slowly in the NYC Fringe Festival. On the train home, James, snapped the picture of me at left and published it on Facebook, requiring that I come clean about the real reason for the trip: my auditioning for the role of the butler robot in a remake of Woody Allen's Sleeper.
Oh, to experience the Orb and the Orgasmatron!
UPDATE: "Your son" in the comments is in fact "my son." I was able to get access to the picture because my son-in-law, Simon, tagged me in James' Facebook album, although ordinarily I do not have access because James refuses to "friend" me (his brother has taken the same stance). James explained this to me yesterday as his policy that he does not friend "adults." I pointed out that he is 20 and therefore himself an adult. He clarified this to mean "adults of your generation." I then pointed out that Simon, whom he did "friend" is only two years younger than his mother. His response was that by marrying his sister, Simon "married into" his generation. This kid has to go to law school. (BTW, the likeness to which James and Alan are referring in the comments - Lando Calrissian's assistant, is the one at the lower left. I see the point.)
Friends Like These
The Maryland Court of Appeals affirmed a trial court finding that a lawyer and complainant did not have an attorney-client relationship and imposed a public reprimand for mishandling of funds as a result of inadvertance and innocent clerical error. The lawyer, who was admitted in 1975 and had no prior discipline, had a longstanding and complicated personal relationship with the putative client. The "client" is also an attorney. They met in alcohol rehabilitation.
A dissent would find that the failure to find an attorney-client relationship was clearly erroneous and would indefinitely suspend. (Mike Frisch)