Saturday, September 12, 2009

Authority, Lawyering, and the Solitude of Judgment - and God!

Posted by Jeff Lipshaw

I wrote a short essay on this topic but I haven't posted it on SSRN because I've submitted it to a Images-1 peer-reviewed journal, and they sometimes have funny rules on what constitutes "prior publication."  (Although I'm delighted to have "Memo to Lawyers:  How Not to 'Retire and Teach'" published in the North Carolina Central Law Review, the reason given to me by the Journal of Legal Education for not taking it even for blind review was that it had been "previously published" on SSRN.)  Here's the abstract, and if you are interested in reading and commenting, drop me a note (it's 6850 words, or ten pages in law review format):

This short essay considers the essence of judgment, and concludes it is something very different from the lawyering or advocacy that is the archetype of the profession and its teaching methods. I consider the status of arguments from origin rather than validity as ones affected by power rather than critical judgment. I also consider the relationship between the experience of judgment and consciousness. Judgments are those things that occur in our minds, privileged to us, beyond authority, external truth-justifications, and power, whether or not we accede, in the solitude of our own minds, to authority, justifications, and power. Lawyering, or advocacy, is an external appeal to authority. It seeks to use argument, largely of origin rather than validity, to vanquish an opponent. It is a social and inter-subjective exercise. When we make judgments, however, we are completely alone.

One of the things I discuss comes from current debates in philosophy of mind - namely, how do we explain consciousness?  This is an excerpt that pretty well capsules my meta-view of the debate:

As an outsider to the debates, for example, about the reducibility of consciousness, I admit they strike me as either as concluded or pointless as debating the truth of whether God exists. If I do not believe God exists, then nothing short of a booming voice from heaven is likely to persuade me otherwise. Either God exists or not. Speculating on whether we will ever discover whether God exists is simply a second-order debate of the first. My own intuition is that consciousness is one of the those mysteries of the universe we will get to about the same time we figure out conclusively the pre-Big Bang cosmology. That is, arguing the second-order issue is pointless. As soon as I see that consciousness can be explained scientifically, I will drop my skeptical intuition. This is a matter of belief that cannot get reduced to a truth beyond the empirical occurrence of the event itself.

The point here is that the default position for many philosophers and scientists is that we won't get these questions answered ever, or that debating them is useless, and the best we can do to ensure human flourishing (and the excellences, as Aristotelians say) is to debate with reasons.  So it was with some delight that I woke up to a debate between Richard Dawkins and Karen Armstrong on the front page of the Wall Street Journal's Weekend Journal, on which I will pontificate briefly (is that an oxymoron?) below the fold.

Continue reading

September 12, 2009 | Permalink | Comments (2) | TrackBack (0)

Friday, September 11, 2009

Funding Opportunity for Litigation Research

[Posted by Bill Henderson}

The ABA Section of Litigation invites applications to The Litigation Research Fund which makes individual awards of $5,000 to support original and practical scholarly work that significantly advances the understanding of civil litigation in the United States.  The Fund was established in 2007 to support research and writing projects relevant to litigation policy and practice, with preference given to works with an empirical foundation.  Projects addressing issues of low-income individuals’ access to civil justice are particularly welcome.

Additional information is available on here

September 11, 2009 | Permalink | Comments (0) | TrackBack (0)

Face The Music, Not The Spectators

The District of Columbia Court of Appeals has ordered the interim suspension of an attorney who was suspended for 90 days without automatic reinstatement by the Supreme Court of the Commonwealth of the Northern Mariana Islands. The attorney was an Assistant Attorney General who received an order to show cause why sanctions should not be imposed for failing to file an appellate brief. The response from the attorney was problematic: she called the case "relatively minor" and said that it "fell through the cracks." She also said she was overworked and the problem would continue unless more resources were given to the AG's office. The court found the "likely to recur" statement "inexcusable."

And then there is footnote 4: "We also note the prosecutor's disrespect for this Court during the show cause hearing. At the hearing, the prosecutor repeatedly turned to face onlookers and mouthed words to them. Upon completion of the hearing, the prosecutor stormed out of the courtroom, made loud remarks to seated onlookers as she left, and slammed the door before the justices exited the courtroom."

(Mike Frisch)

September 11, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Judge, Then Counsel

The Kansas Supreme Court concluded that an attorney representing a client convicted of first degree murder had labored under a conflict of interest as a result of his earlier service as a judge pro tempore in the very same case:

The record establishes a conflict of interest in this case. Tuley's appointment as counsel for Boldridge in her trial for first-degree murder (and his acceptance of that appointment) after having authorized the issuance of subpoenas for telephone records in the investigation of that same murder case was clearly improper under the KRPC regulating attorneys and the Code of Judicial Conduct. Due to the nature of that conflict, the district court should not have appointed Tuley as Boldridge's counsel. Likewise, Tuley should have refused to accept an appointment that required an ethical violation. See KRPC 1.12(a).

We recognize that the Code of Judicial Conduct and the Kansas Rules of Professional Conduct for attorneys in this state provide for a waiver of such a conflict in circumstances where all parties give informed consent to the conflicted representation and where this consent is memorialized in writing. We must emphasize, however, that an oral statement by a defendant accepting counsel's appointment, without more, does not satisfy the waiver requirements. Although statements on the record by the court and the parties may in some instances substitute for the writing required by the KRPC, the record we examine today falls short of establishing any such waiver.

The hearing on Boldridge's waiver of the conflict was vague at best and did not explain the nature of the conflict at issue--that Tuley signed subpoenas authorizing government officers to obtain telephone records that would later be used as evidence of Boldridge's motive and opportunity at trial. Had this information been disclosed and the conflict more fully explored by the court and counsel, it is doubtful that Tuley would have been appointed to represent Boldridge. Boldridge testified at her K.S.A. 60-1507 hearing--the only proceeding where she was able to fully explain her understanding of the conflict in question--that she was "under the impression it really wasn't that big of a deal."

We conclude that the district court's rulings that Tuley's actions as a pro tempore judge in signing the subpoenas were "ministerial" and that Boldridge knowingly waived any conflict arising from those signatures were not supported by substantial evidence. The record does not support a conclusion that either party affirmatively waived or confirmed their consent to this conflicted representation in writing. Evidence presented at the K.S.A. 60-1507 hearing calls into question whether Boldridge truly appreciated the nature of Tuley's prior actions as pro tempore judge. For these reasons, we conclude that Boldridge has demonstrated that trial counsel acted under a conflict of interest when he accepted his appointment as her defense counsel.

The court nonetheless found that the conflict had not adversely affected the representation but remanded on other issues relating to the alleged ineffectiveness of trial counsel. (Mike Frisch)

September 11, 2009 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Agreed Sanction Questioned

An attorney who had been convicted of felonies involving dealing and possessing controlled substances was sentenced to a six-year prison sentence. The attorney was suspended in July 2008 as a result of the conviction. The Indiana Supreme Court approved an agreement and imposed a two-year minimum suspension with no possibility  of reinstatement until the criminal sentence is fully served. The attorney may then petition for reinstatement. The court noted that the attorney had sought and nearly completed treatment for substance abuse and accepted responsibility for the misconduct.

Justice Dickson disagreed: "Permitting such a convicted felon to practice law is unacceptable...because it places at risk the citizens who may seek future legal representation from the Respondent, and it undermines general public confidence, trust, and respect for the Indiana legal system as consisting of persons who are morally sound, fit, and suitable to be safely entrusted with the personal interests of others." Chief Justice Shepard concurred. (Mike Frisch)

September 11, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, September 10, 2009


The Wisconsin Supreme Court accepted the consent revocation of a lawyer convicted of wire fraud. The lawyer had been a senior managing director of Bear Stearns. The court recites the underlying facts:

The facts from the indictment are complicated and will be only briefly summarized by this court.  Attorney Hurtgen was a senior managing director in the Chicago office of Bear Stearns & Co. ("Bear Stearns"), an investment bank that did business with Edward Hospital.  In December 2007 Attorney Hurtgen was indicted in the U.S. District Court for the Northern District of Illinois on three counts of mail fraud, three counts of wire fraud and one count of extortion in connection with a "pay to play" scheme involving medical facility construction projects in Illinois.  Two other individuals, Stuart Levine, a member of the Illinois Planning Board, and Jacob Kiferbaum, owner and operator of Kiferbaum Construction, were also indicted in connection with the same scheme.  The indictment indicates that Attorney Hurtgen sought to arrange the financing of a proposed Plainfield hospital and medical center for Edward Hospital.

The indictment alleges that between early 2001 through at least June 2004, the three men conspired to defraud Chicago Medical School, the Planning Board, and the State of Illinois, among others, in connection with four construction projects.

According to the indictment, Levine, Kiferbaum, and Attorney Hurtgen agreed they would use Levine's position on the Planning Board to try to force Edward Hospital to hire Kiferbaum's company to build the proposed $90 million hospital and a $23 million medical office building in Plainfield.  The plan was to tell Edward Hospital representatives that the Planning Board would not approve the projects unless they hired Kiferbaum to build the projects.  Attorney Hurtgen assisted in the scheme because he wanted his employer, Bear Stearns, to receive the financing work for the new Edward Hospital.

According to the indictment, Attorney Hurtgen agreed to introduce Kiferbaum to the CEO of Edward Hospital.  Kiferbaum understood that Levine would direct the CEO to provide him with a kickback.  According to the indictment, in mid-December 2003, Attorney Hurtgen called Edward Hospital's CEO and said if the hospital wanted to have certain permits approved, it should postpone its application before the Planning Board on December 17, 2003, to allow time to hire Kiferbaum.  Otherwise, the permit would be denied.  On December 23, 2003, Attorney Hurtgen and Kiferbaum met with Edward Hospital's CEO to attempt to force the hiring of Kiferbaum's company.

On January 8, 2004, Attorney Hurtgen met again with the CEO as well as with Edward Hospital's project administrator.  When this meeting occurred, the defendants were unaware that the hospital officials were cooperating with the FBI.  The indictment alleged that in explaining his role in persuading Edward Hospital officials to hire Kiferbaum's company, Attorney Hurtgen said that Bear Stearns would finance the hospital if it was approved.  During the January meeting, the hospital's CEO requested proof that the threats and promises were real.  Attorney Hurtgen said he might be able to arrange a situation in which Levine would "inadvertently" bump into the CEO and Attorney Hurtgen.  After further discussions, Levine and Attorney Hurtgen went to a restaurant in Deerfield, Illinois, on April 18, 2004, to prove to the CEO that Levine, Attorney Hurtgen, and Kiferbaum were working together and that their threats and promises were real.  Levine and Attorney Hurtgen walked over to the table where Kiferbaum and the CEO were sitting and spoke with them about hiring Kiferbaum.  Attorney Hurtgen later said he told the CEO that it was "all about money" for campaign contributions.

As of the April 21, 2004, Planning Board meeting, Edward Hospital had not hired Kiferbaum.  Levine voted against the project and the Plainfield hospital application was denied. 

The court characterized the conduct as a felonious pay-for-play scheme. (Mike Frisch)

September 10, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

One Claim Survives

The District of Columbia Court of Appeals affirmed "in large part" the grant of summary judgment against a former programmer/analyst for Covington & Burling who sued for failure to reasonably accommodate her medical condition, hostile work environment, and termination in alleged violation of the D.C. Human Rights Act. The court found the hostile work environment claims to be time-barred but concluded that the reasonable accommodation claim remained viable. The former employee suffered from Crohn's disease. (Mike Frisch)

September 10, 2009 in Law Firms | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 9, 2009

Disturbing The Peace

More charges from the Illinois Administrator involve incidents of alleged breaches of the peace. The complaint contends that:

In 2008, [K. W.] was a mail carrier for the United States Postal Service. Her route included Respondent’s home in Chester, Illinois. Respondent’s mailbox was on a post at the curb.

Between May, 2008, and September, 2008, on numerous occasions, generally between 10:30 a.m. and 11:00 a.m., Respondent, while wearing no clothes other than very small and tight, Speedo-style swim briefs or women’s panties, met [K.W.] at the curb when she delivered his mail. On some or all of those occasions, including on September 18, 2008, Respondent had an erection that was obviously visible through his swim briefs or panties.

On two of the occasions described...above, specifically, once in early September, 2008, and on September 18, 2008, Respondent ejaculated in [K.W]’s presence.

Respondent’s above-described conduct alarmed and disturbed [K.W.] and provoked a breach of the peace.


In 2007, Respondent and [P. W.] were neighbors and lived three houses apart in Chester, Illinois.

On a weekday morning in July, 2007, at or about 8:50 a.m., Respondent was outside his home wearing no clothes other than very small and tight, Speedo-style swim briefs.

On the above-mentioned day and time, [P. W.] drove by Respondent’s home on her way to work. Respondent went to the curb and waived [her] to stop. When [she] stopped, Respondent had an erection that was obviously visible through his swim briefs. Respondent asked [her] if she had seen his dog. [P.W.] replied that she had not and would let him know if she did see it, and she drove away.

Respondent’s above-described conduct alarmed and disturbed [P. W.] and provoked a breach of the peace.


In 2008, [P. W.] and [B. L.] were friends and often met at [P.W.]'s home to jog together in [P. W.]’s neighborhood. Respondent and [B. L.] were acquainted.

On September 22, 2008, before 9:00 a.m., B. L. drove to [P.W.]'s home and met with her to exercise together. [B.L.] walked in the neighborhood and [P.W.] jogged in the neighborhood.

On the same date, between 9:00 a.m. and 10:00 a.m., Respondent was outside his home wearing no clothes other than very small and tight, Speedo-style swim briefs. Respondent saw [them] exercising.

Between 9:00 a.m. and 10:00 a.m., [they] completed their exercise and returned to [P. W.’]s house. [B.L] departed in her car from [P.W.]s home. As she drove by Respondent’s home, Respondent ran to the street and waived her to stop. When [B. L.] stopped, Respondent had an erection that was obviously visible through his swim briefs. Respondent asked [her] to drive back down the street to look for his dog, and [she] said that she would.

[B. L.] did not did not see Respondent’s dog and decided to drive home. As she drove by Respondent’s home a second time, Respondent again ran to her car and waived her to stop. He still wore no clothes other than very small and tight, Speedo-style swim briefs. When [she] stopped, Respondent held his penis through his swim briefs and ejaculated in her presence.

Respondent’s above-described conduct alarmed and disturbed [B. L.] and provoked a breach of the peace.

The complaint states that the attorney pleaded guilty to criminal charges in two of the three incidents. (Mike Frisch)

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

Blogging Lawyer Charged with Confidentiality Violations

The Illinois Administrator has just filed and published charges against an attorney that allege, in part, improper disclosure of confidential client information on a blog. The complaint alleges:

...Respondent was an assistant public defender in Winnebago County, Illinois. In the course of her duties, she had access to information about clients that would otherwise be confidential or secret.

Between June 2007, and April 2008, Respondent wrote and published an Internet web log ("blog") entitled "The Bardd (sic) Before the Bar – Irreverant (sic) Adventures in Life, Law, and Indigent Defense." Approximately one-third of the blog was devoted to discussing Respondent’s work at the public defender’s office and her clients, and the remaining content of the blog concerned Respondent’s health issues and her photography and bird-watching hobbies. In the work-related blogs, Respondent referred to her clients by either their first name, a derivative of their first name, or by their jail identification number.

Respondent’s blog was open to the public and was not password-protected. Respondent knew or should have known that the contents of her blog were continuously available to anyone with access to the Internet, and she maintained a site meter on the blog that counted the number of visits to the blog. At some point, Respondent posted the following language on her blog:

Commentary is Both Invited and Appreciated. Let’s Get Some Dialogue Going!

On or about March 14, 2008, Respondent represented a college student in relation to allegations that he possessed a controlled substance. On March 14, 2008, Respondent published the following entry on her blog:

#127409 (the client’s jail identification number) This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because "he’s no snitch." I managed to talk the prosecutor into treatment and deferred prosecution, since we both know the older brother from prior dealings involving drugs and guns. My client is in college. Just goes to show you that higher education does not imply that you have any sense.

Respondent knew or should have known that information contained in her March 14, 2008 blog...was confidential, or that it had been gained in the professional relationship and the revelation of it would be embarrassing or detrimental to her client.

On or about March 28, 2008, Respondent represented a diabetic client in relation to his drug charges. On March 28, 2008, Respondent published the following entry on her blog:

"Dennis," the diabetic whose case I mentioned in Wednesday’s post, did drop as ordered, after his court appearance Tuesday and before allegedly going to the ER. Guess what? It was positive for cocaine. He was standing there in court stoned, right in front of the judge, probation officer, prosecutor and defense attorney, swearing he was clean and claiming ignorance as to why his blood sugar wasn’t being managed well.

Respondent knew or should have known that the information contained in her March 28, 2008 blog was confidential, or that it had been gained in the professional relationship and its revelation would be embarrassing or detrimental to "Dennis."

On or about April 9, 2008, Respondent represented a woman in relation to allegations that she had violated the terms of a previous order of probation. On April 9, 2008, Respondent published the following entry on her blog:

"Laura" was a middle aged woman with 7 children, 2 of them still adolescents. She was a traditional housewife. Her husband, a recovering alcoholic, worked. She stayed at home, and home schooled her child who was handicapped amd (sic) learning disabled. In her favor, her original offense was a matter of sheer stupidity. She had forged a doctor’s name on a prescription form, in order to obtain Ultram from a pharmacy. Ultram is a painkiller with weak opiate effects and some effect of the serotonin system as well. It is prescription only, but it is not a controlled substance. It’s a moderately decent painkiller, but after a day or 2, any opiate-type "high" is long gone – at least for most people I know. I’ve used it off and on for years and I’ve never noted any "craving" or any other significant effect when I stop. I can’t imagine why someone would get "addicted" to the stuff. Further, from spam comments and e-mails, I gather that you can get the stuff over the Internet with ease and without a prescription at a not unreasonable price if you really want to, so why she would have forged a prescription form for that drug is beyond me. Still, that’s what she did, and she got caught, and she claimed to have stopped using. She claimed, per her pre-sentence report, not to be using any drugs at this time. And she had not been rearrested for anything other than 1 ticket for driving without a license in the intervening 5 years. On the other hand, while sentenced to the diversionary program, she had been referred to two different agencies and had never attended or completed any treatment program, and she had not been in contact either with her case supervisor or her probation officer since 2005, despite reminders and letters. She swore up and down to me that she was clean, she was no longer addicted, she had gone through a period of depression and had fallen out of touch and not known how to rectify the situation without risking jail. She was scared, and not experienced in the system. It seemed plausible. Neither I nor the prosecutor had any information on hand that would contradict the PSI and her statement in allocution.

The judge was lenient, given her family situation, her relative lack of criminal history, her good behavior other than status violations of omission, and the lack of any evidence of a current drug porblem (sic). He sentenced her to an additional term of 1 year probation, and ordered her to serve 90 days in jail, the first 5 immediately, and the balance held suspended. It was a gift. I felt I’d done my job well.

The bailiffs took her back to holding, pending transport to booking. In no more than 3 minutes, they came back. "Laura" wanted to talk to the judge. They advised her to talk to me first.

So I went back there to see what her concerns were. "But I’m on Methadone!" she tells me.

Huh? You want to go back and tell the judge that you lied to him, you lied to the pre-sentence investigator, you lied to me? And you expect what to happen if you do this? I’ll tell you what would happen; the sentence just pronounced would be immediately vacated and you’d go to prison, that’s what would happen.

"Can I get my methadone while I’m in jail?" she asks me.

No! Geez, what do you think jail is? Of course they’re not going to give you narcotics up there. You’ll be lucky to get Tylenol for a broken bone.

"What am I going to do," she asks me. "I can’t go 5 days without methadone."

Respondent knew or should have known that the information contained in her March 28, 2008 blog was confidential, or that it had been gained in the professional relationship and its revelation would be embarrassing or detrimental to "Laura."

On or before April 18, 2008, Respondent’s supervisor at the Winnebago County Public Defender’s Office became aware that Respondent was publishing blogs containing information about Respondent’s clients. On or about April 18, 2008, Respondent was terminated from her employment as an assistant public defender based upon the blogs that she had published.

In addition to the blog entries described...above, in a blog entry dated February 5, 2008, Respondent referred to a judge as being "a total asshole," and in a blog entry dated March 11, 2008, Respondent referred to a judge as "Judge Clueless."

Respondent’s blog entries...contained sufficient identifying information such that Respondent’s co-workers, employees of the State’s Attorney’s Office, police, bailiffs, or other participants in the Winnebago Circuit Court system could determine the identity of the clients and judges to which Respondent’s blog entries referred. The blog entries also contained sufficient information such that a motivated person who was not an employee of the Winnebago Circuit Court could, using other publicly-available information, determine the identity of the judges and clients referred to in Respondent’s blog entries as described...above.

(Mike Frisch)

September 9, 2009 in Bar Discipline & Process | Permalink | Comments (6) | TrackBack (0)

No Buyers Remorse

The Maryland Court of Appeals reinstated an attorney from suspension in 2007. The reinstatement was immediately challenged by a member of the Maryland Bar based on allegations made against the attorney in a federal civil matter. The attorney had disclosed the litigation in the reinstatement petition. The court dismissed the motion but reconsidered the issue on motion from Bar Counsel. The court today dismissed Bar Counsel's motion, concluding that the disclosure by the attorney of the pending litigation was sufficient. Subsequent findings in the civil matter did not form a basis to undo the reinstatement.

A concurring opinion notes that Bar Counsel is free to initiate new charges if it chooses to do so: "...although Bar Counsel may not have persuaded the Court to vacate [the attorney's] reinstatement...Bar Counsel is not foreclosed from initiating a new investigation and disciplinary action (if appropriate) as to alleged misconduct (if any) by the [attorney] relating to the transactions involving [the opposing party in the federal case] occuring after the date of the Court's 11 April 2007 order of reinstatement." (Mike Frisch)

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

Tier 4 Law Grads Aren't Spoiled

Posted by Jeff Lipshaw (HT Paul Caron)

I happened to be chatting with one of Suffolk's top students - she was telling me how hard my Agency, Partnership, and LLC last spring was, heh heh (but the grading was fair, everyone agreed) - who spent her summer at the Boston office of one of the New York based BIG BIG law firms, and just got an non-deferred offer to join the firm next year.  Some trouble in paradise, and the downsizing of the last year appears to have affected office morale, but my comment was "I don't think you can attribute that to a particular firm - it wasn't a great year for anybody.  And you can look forward to having a job from which you can repay your student loans."

Paul Caron links to a study today purporting to reach the unremarkable conclusion that Tier 4 law grads who get Big Law jobs are happier.  As I suspect are most young lawyers, even who graduated from "elite" schools, who, for whatever reason, never adopted an attitude of entitlement.

September 9, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 8, 2009

Technology Report: Mac OSX 10.6 (Snow Leopard)

Posted by Jeff Lipshaw

I installed the new version of the Mac operating system, OSX 10.6, or Snow Leopard, last Friday.  It's advertised as being mainly an improvement under the hood, so the changes aren't apparent to mere users like me, although I'm told that things are loading faster.  That may be true.  So far pretty much so good.

Apple surprised everybody by bringing it out sooner than expected.  Be prepared for glitches in non-Apple programs.  I have a neat little program called One Password that remembers all my passwords and fills them in for me - I had to download a Beta version.

Printer drivers are fun as well.  I have a nice little HP LaserJet 1020 in my office, and it won't work in Snow Leopard.  It is completely unsupported for Mac by either Apple or HP, and the recommendation of the guy on the phone at Apple Care was to downgrade back to Leopard if I wanted to use the printer.  I found a work around online, which you can find if you click through the links in the quote in the "Legitimus" post.  Be forewarned - this involves going into Terminal, which is the Mac equivalent of doing DOS commands.

UPDATE:  Oh, I forgot anti-virus.  There are those who say not to bother, but even if there's no virus threat to the Mac, it does identify what you are passing along.  Personally, I am paranoid - I have two Time Machine backups, one at home and one in the office.  You will likely need to upgrade your AV program.  I had to.

September 8, 2009 in Hot Topics | Permalink | Comments (2) | TrackBack (0)

Fargo Part Two

An attorney was suspended for two years by the North Dakota Supreme Court based on the following instances of non practice-related misconduct:

 [The attorney] was convicted in Fargo Municipal Court of two misdemeanors involving theft. The items taken were a Vulcan folding knife, valued at $124.99, on August 1, 2008, and a Pasayten knife, valued at $179.00, on May 24, 2008. Both thefts were from a Fargo store.

The court noted a prior similar incident:

The Hearing Panel found that ten years ago [the attorney] was disciplined by the Supreme Court for stealing a "Buck Tool" with an approximate value of $59.99, from a Grand Forks store, and for conviction of a class B misdemeanor of theft of two pair of walking shorts in Cass County District Court. In that matter, [he] received a suspension from the practice of law for 24 months, stayed on the condition that he commit no further acts of theft during that 24-month period.

The Hearing Panel further found that after his 1997 shoplifting incidents, [he] sought care for his preexisting depression and compulsive shopping. During the intervening eleven years,[he] had no other convictions nor any further discipline. [The attorney] maintained an active law practice prior to and after his 1997 convictions. None of the events for which [he] was previously disciplined nor the events of the current Petition involve any client funds or cases. After[his] convictions for the 2008 shoplifting events, he sought further help for the problems he was having and was diagnosed with major depression and impulse control disorder of kleptomania. [The attorney] has been receiving treatment since October 2008. The Hearing Panel found that [he] was remorseful for the impact his actions have had on his family, friends and law partners; and he has been open and truthful about the incidents which resulted in the prior discipline as well as the thefts resulting in the current disciplinary action.

The attorney was suspended on an interim basis as a result of the conviction. (Mike Frisch)

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

Monday, September 7, 2009

Ready, Aim, Fire

The Florida Judicial Ethics Advisory Committee has issued an opinion in response to a judge's inquiry whether membership in a local gun club to use its firing range where membership in the National Rifle Association is required contravenes rules of judicial ethics. The conclusion:

In conclusion, eight members of the Committee see no proscription to the judge’s membership in the local gun club where the club requires proof of membership in the NRA as a condition precedent to club membership, so long as the judge does not become personally involved in the NRA’s lobbying or fund-raising efforts and does not participate in the NRA’s Institute for Legislative Action and so long as lobbying on issues likely to come before the judge does not become the primary purpose of the NRA.

The judge is reminded of the commentary to Canon 5C(3)(a) which provides, in pertinent part, “The changing nature of some organizations and their relationship to the law makes it necessary for a judge to regularly reexamine the activities of each organization with which the judge is affiliated in order to determine if it is proper for the judge to continue the affiliation.” This comment has equal relevance to any consideration of Canon 2A’s command that a judge act in a manner that promotes public confidence in the impartiality of the judiciary, Canon 2B’s directive that a judge not lend the prestige of judicial office to advance the private interests of another, Canon 2B’s proscription that a judge not convey the impression that others are in a special position to influence the judge, or Canon 5A’s cautions that a judge be circumspect in the judge’s extra-judicial activities. Thus, the inquiring judge must continually monitor membership in this, or any, organization to ensure that the organization’s activities and the public perception of the organization have not changed to the extent that continued membership implicates any of the various provisions of the Code of Judicial Conduct.

One committee member is unable to distinguish JEAC Op. 91-14 (concluding that a judge should not be a member of the Adam Walsh Child Resource Center) or JEAC Op. 93-50 (advising a judge that membership in the Dade County Political Women’s Caucus, “would be clearly prohibited” because the “Caucus . . . recruits candidates and helps them get elected and also lobbies for various laws [and] operates a PAC to collect and disburse funds for its chosen causes”).  Canon 7 does not pertain, in this member’s view, but this member would advise the inquiring judge against joining the National Rifle Association in order to comply fully with Canon 2A’s command that a judge act in a manner that promotes public confidence in the impartiality of the judiciary, Canon 2B’s directive that a judge not lend the prestige of judicial office to advance the private interests of another, Canon 2B’s proscription that a judge not convey the impression that others are in a special position to influence the judge, and Canon 5A’s cautions that a judge be circumspect in the judge’s extra-judicial activities, all as interpreted in JEAC precedent.

(Mike Frisch)

September 7, 2009 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Oh, To Drive in Massachusetts Now That Fall Is Here

Posted by Jeff Lipshaw

If you live in Detroit, you know what a "Michigan Left" is.  (When you want to turn left onto a divided highway MassAve or boulevard, you actually turn right into the left hand lane of the direction opposite the one you want, then swing around a median 180 degrees the other way to the direction you really want to go.)  A Boston Left is simply turning left in front of the oncoming traffic before the traffic has time to hit you.  Massachusetts traffic signage is also its own cultural statement (assuming you can see it behind the trees and foliage).  This is our family's favorite, at the intersection where you are leaving Harvard Square to head up Mass Ave.  The question:  is the traffic signal telling you to go or to stop?

September 7, 2009 | Permalink | Comments (1) | TrackBack (0)

Self-Report Mitigates Sanction

An attorney who had devoted substantial effort to an appeal brief was unable to submit the brief in a timely manner. After five extensions and a court order directing that no further extensions be granted, the attorney decided to falsely represent that the brief had been mailed on time. The attorney placed a back-dated stamp on the envelope and falsely represented to the court that the brief was filed on time. In fact, the brief was four days late. The attorney had come forward and disclosed the deception to her client and the court after a "sleepless night." The court dismissed the appeal.

The Colorado Hearing Board imposed a suspension of one year and one day, with all but 60 days stayed, and probation for two years. The board gave significant mitigating weight to the attorney's "admirable action in self-reporting [the] misconduct." But for that factor, the board states that disbarment would be the appropriate sanction. (Mike Frisch)

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

Divorce Was Better Option

A recent disciplinary sanction reported on the web page of the Texas State Bar:

On August 18, 2009 the Board of Disciplinary Appeals signed a final judgment disbarring [a] Searcy, Arkansas attorney... On June 25, 2008 the Board signed an Interlocutory Order suspending [him] from the practice of law pending the appeal of his criminal conviction of three charges in general court martial order in Cause No. 431-43-9656FR United States Air Force, 37th Training Wing, Lackland Air Force Base, Texas: attempt to commit premeditated murder, conspiracy to commit premeditated murder and wrongful fraternization with an enlisted person, offenses under the Uniform Code of Military Justice. The crimes of attempt to commit premeditated murder and conspiracy to commit premeditated murder are intentional crimes as defined in the Texas Rules of Disciplinary Procedure. [He] was sentenced to confinement for 18 years in the Air Force Corrections System. The court martial was subject to an automatic appeal. The United States Air Force Court of Criminal Appeals affirmed his criminal conviction on April 23, 2008. On November 13, 2008 the United States Court of Appeals for the Armed Forces denied his petition for Grant of Review on November 13, 2008. [The attorney] answered but failed to appear at the hearing.

The decision of the Air Force Court of Criminal Appeals affirming the underlying conviction notes that the attorney was a "judge advocate with an impressive past and a promising career ahead of him" who had an affair with a paralegal and conspired with her to murder his spouse (a civilian attorney he had met while attending law school) rather than pursue "something as mundane as a divorce." (Mike Frisch)

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