Saturday, September 19, 2009

Rosh Hashanah Musings on Law and Justice

Posted by Jeff Lipshaw

Once again, I violate the tradition by celebrating the Jewish New Year not in a community (which when I was a member of a conservative congregation in Indianapolis never failed to cheese me off by talking full voice through the services, particularly in the back, something that the more Episcopalian sensibilities of the Reform temple seemed to eliminate) but in this solipsistic morning of musing.  I've pulled up to the front (just behind this one) a post written on Yom Kippur in 2006 (can it be three years?) just after we started this blog, when I was visiting at Tulane. 

Images

The point of the previous post was what I find difficult about religious ritual, which is the reification of the sense of awe, wonder, and mystery of life, being, and consciousness into a set of rules.  (Hence, my appreciation instead for the music.)  That's the tension I described three years ago, between kevah - fixed prayer - and kavanah - inspiration. 

Not unrelated, I've come to think since then, is the relationship between law and justice, articulated (surprisingly as far as I'm concerned) by Derrida, a view I find grounded, sensible, and moderate (that's the surprise).  In a nutshell, law and philosophy are both about the arche, the structure, the polity, the rules, but justice is something else, an-arche, related to a singularity, unreachable, and subject to reification as soon as the sense of justice is embedded in a rule, because rules are not singular but universal.  We can't deal with complete anarchy - law is necessary, but equity (in Derrida's terms) deconstructs it.  I'm indebted here to the book I'm reading this morning - Demythologizing Heidegger - by John Caputo, formerly at Villanova and now at Syracuse.  What Caputo calls Derrida's "scandal" is that Derrida is not wholly without foundational anchor - there is something that is not capable of deconstruction, and that is justice.  Of course, if it can't be deconstructed, then is it an ageless and universal truth?  Well, no, and there's the paradox.  Law is a construct and we can deconstruct it.  But "deconstruction is possible insofar as justice is undeconstructible, for justice is what deconstruction aims at, what it is about, what it is." (Caputo, at 193.)

Not surprisingly, this returns me to the relationship between individual judgment and default to authority, something on which I posted mysteriously a week or so ago.  Let's go straight to the paradigmatic case of judgment and default to authority, the Akedah story, the binding of Isaac, which is the traditional Torah portion on Rosh Hashanah morning, and thus quite appropriate as the text for this morning's sermon.  This was the story that provoked Kierkegaard's Fear and Trembling, of the knife-edge of impossible judgments, caught between conformity to what purports to be authority and what Derrida (through Caputo) describes as "fresh judgment":

What is to be done cannot simply be calculated - it must be judged. Furthermore, a just decision, which is never a merely programmed, calculated application of a rule, is always made in the element of undecidability, must always pass "through the ordeal of the undecidable," in which our respect for the universal trembles before "the unique singularity of the unsubsumable example."

Caputo, at 196, quoting Derrida, "Force of Law: The 'Mystical Foundation of Authority'", 11 Cardozo L. Rev. 919, 961-67 (1990).  That's the leap of faith in judgment, that instant of decision that Kierkegaard calls a madness.  Or as I said in the abstract to the yet unpublished essay:  "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." That's particularly true if the God speaking to you is saying that what is just is to slay your child merely to show your obedience to God.

For more on practical judgment, and in particular, facing up to authority that dictates against one's own sense of justice, see Susan Neiman's account and interpretation of the counter-example of the Akedah story, Abraham's bargaining with God to save Sodom and Gomorrah, in her book Moral Clarity.

September 19, 2009 in Billable Hours | Permalink | Comments (0) | TrackBack (0)

Liturgy, Heresy, and Rawls: A Yom Kippur Meditation

Posted by Jeff Lipshaw (practicing without a license).

I'm not in synagogue.  I have come to the point in my life where I pick and choose my spots.   Last night, the Touro Synagogue in New Orleans had a substantial attendance for the Kol Nidre services, and the voice of Cantor Seth Warner was appropriately spectacular.  I attend at least one service each High Holy Day if for no other reason than to hear my favorite piece of liturgical music, the Max Janowski setting of Avinu Malkeinu.  (This is the long version - beginning with "Avinu Malkeinu, sh'ma koleinu," available on CD with Jan Peerce doing the honors, and is not to be confused with my second favorite piece of liturgical music, the setting of the last piece of the prayer "Avinu Malkeinu, khaneinu v'neinu," a lovely version of which is available on the Western Winds recording of The Birthday of the World, Part II:  Yom Kippur, narrated, in goosebump-raising manner, by Leonard Nimoy.)  When I bought the Jan Peerce CD several years ago, I was astounded to learn that the Max Janowski piece was written in the 20th century, by the man who served as the music director of K.A.M. Isaiah  Israel Congregation of Hyde Park, Illinois from 1938 until his death in 1991.  Yet it is, at least in all the synagogues and temples I've attended, a cantorial canon, notwithstanding its relatively recent composition.

This is a public confession (if I were really clever I would do it as an acrostic in the style of the ashamnu prayer) of a life-long discomfort with the concept of worship.  As is obvious to anyone who has slogged his or her way through one of my pieces (in the words of Scott Turow in One L on the subject of reading cases, it's like stirring concrete with one's eyelashes), I can find elements of Kabbalistic mysticism everywhere, including contract law.  But the ultimate conception of God in the Kabbalah is actually a recognition that the minute God is reduced to a human conception, it can't be God.  The best language can do is the Hebrew Ein Sof -- there is no end.  Getting in touch with that sense is called kavanah.  The great Jewish scholar and philosopher Abraham Joshua Heschel wrote a lovely book called Man's Quest for God, in which he tries to reconcile the goal of kavanah with the far less inspiring aspect of worship known as kevah, or fixed prayer.  (Though kavanah and kevah are polarities, if you just wait for kavanah, instead of working at it in kevah, you probably won't get kavanah either.)  I can hit my moments of kavanah, but not in the talking section of the sanctuary (more common in Conservative and Orthodox services), and certainly not with the male-centered anthropomorphic reductions of Ein Sof that constitute the liturgy.  But if I don't think Adonai ("My Lord") for the unspeakable tetragrammaton name of God, and consider the unreducible emanations of mystery in the world (like the emotional zenith provoked by Max Janowski's juxtaposition of notes and chords), I can at least get a sense of it.

More of this random mumbling below the fold.

Continue reading

September 19, 2009 in Lipshaw | Permalink | Comments (2) | TrackBack (0)

Hofstra Hosts Oct 18-20 Conference on Ethics of Government Lawyers

On Sunday, Monday and Tuesday, October 18 – 20, 2009, Hofstra Law will host “Power, Politics & Public Service: The Legal Ethics of Lawyers in Government.” 

      The conference will focus on the most important regulatory and cultural reforms regarding the ethics of prosecutors, and the ethical duties and limitations of government lawyers who advise or litigate on behalf of public officials or public agencies.

      The Keynote Address will be delivered by Cyrus Vance, Jr., Manhattan District Attorney Candidate and Partner, Morvillo Abramowitz Grand Iason Anello & Bohrer PC.   Confirmed Speakers include: Mark Bartlett, First Assistant, United States Attorney’s Office in Seattle; John B. Bellinger, III, Partner, Arnold & Porter LLP and Former Legal Adviser, U.S. State Department and National Security Council; Professor I. Bennett Capers, Hofstra Law; Professor Kathleen Clark, Washington University School of Law; Professor Angela Davis, American University Washington College of Law; Professor Monroe H. Freedman, Hofstra Law; Professor Bruce Green, Louis Stein Professor at Fordham Law and Director, Louis Stein Center for Law and Ethics; Professor Peter Joy, Washington University School of Law; Professor Fred Klein, Hofstra Law; Professor Kevin McMunigal, Case Western Reserve University School of Law; Robert Mundheim, Chair, ABA Standing Committee on Ethics and Professional Responsibility; Professor Jamin Raskin, Director, The Law and Government Program, American University Washington College of Law; The Honorable D. Brooks Smith, Judge, United States Court of Appeals for the Third Circuit; Professor Barry Scheck, Director, Innocence Project, Cardozo Law School; Jeffrey Toobin, Author and CNN Analyst; The Honorable Mark Wolf, Chief Judge, United States District Court for Massachusetts; Ellen Yaroshefsky, Clinical Professor of Law and Director, Jacob Burns Center for Ethics in the Practice of Law, Cardozo Law School  

For more information please contact Kami Crary, Director of Special Events, at lawethics@hofstra.edu or (516) 463-6889, or visit law.hofstra.edu/Conferences.

[Download full-color printed brochure here: Dload Ethbrochure.    -- Alan Childress]

September 19, 2009 | Permalink | Comments (0) | TrackBack (0)

Friday, September 18, 2009

Sexting Conviction Upheld

The Iowa Supreme Court has affirmed a criminal conviction for distribution of obscene material to a minor. The case involved an 18 year old who had sent a photograph of his erect penis to a 14 year old female. The photo (along with a photograph of his face and an "I love you") was sent in response to her repeated request for same, although she testified that she had sought a photo of his penis in a non-erect condition. The sender and recipient were friends, although not in a dating relationship. She thought that she had deleted the message but apparently it was retrievable. The matter was brought to light by her mother, who surfs her internet traffic. The mother told the father; the father called the police.

The court concluded that the jury could properly find the photo obscene based on the instructions of the judge. The court also rejected a claim of ineffective assistance of counsel. (Mike Frisch)

September 18, 2009 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Missiles and Judgment

Posted by Jeff Lipshaw

I suppose it's timely that President Obama has today made a bold and both criticized and supported decision about missiles.  Quite coincidentally, I started watching last night a 1974 made-for-TV docudrama - "The Missiles of October" - which I first saw in May, 1975, as I recall, on the night after the last final of my junior year in college, and with a big steak and a beer in front of me.  Compared to "Thirteen Days" in which the focus was on Kevin Costner's Kenny O'Donnell, this one is primarily about the Kennedy brothers and Khrushchev, with a young William Devane making a very believable John Kennedy (compared to Bruce Greenwood's milktoast of a JFK in Thirteen Days), and a very young Martin Sheen (who, with this, The American President, and The West Wing, seems to hang out in the White House a lot) as Robert Kennedy.

Assessing judgment (as, say, in connection with what was done or not done in the financial crisis) is difficult because of the absence of the counterfactual.  We don't know how things would have turned out otherwise, so Kennedy's handling of the Cuban Missile Crisis, with the benefit of hindsight appears to be a non-pareil exercise of judgment.  We are all still here.  (I was eight; I remember my mother telling me to be quiet while the President was speaking to TV "because World War III could be about to start.")  On the other hand, the financial bubble burst.  How likely is it that hindsight bias might be at work in both cases?

Nevertheless, watching what seems to be a fairly accurate dramatization (I could be wrong, but I do remember reading Graham Allison's book on this as a sophomore...), several things struck me about the knife-edge of "do I or don't I?" that goes on in these matters (particularly when a possible outcome is a nuclear war).

1.  The big early decision was whether to make a pre-emptive air strike.  The military and John McCone, the CIA director, were in favor.  The first reasons against were moral ones - we were only twenty years removed from the sneak attack on Pearl Harbor.  In the brainstorming among Kennedy's advisors, somebody offered up the idea of a sea blockade (or "quarantine"), which is also technically an act of war, but obviously less dramatic than bombing.  To put this in terms of a little jargon, the heuristic that ultimately prevailed was path dependence.  That is, the blockade did not foreclose a stronger measure, but bombing foreclosed a weaker measure. 

2.  I have argued that judgment is also a matter of prediction, akin to scientific hypothesizing.  In a meeting with the Joint Chiefs, the air force general (could that really have been Curtis LeMay? - compare LeMay's reputation and his treatment in Thirteen Days, where he's played by a thuggish Kevin Conway) acknowledged forthrightly that he could not guarantee 100% success in taking out all the missiles.  His assessment was that he could guarantee taking out 90%, leaving intact a retaliatory capability still of killing 80 million Americans on the East Coast and in the South.  So the judgment had elements both of predictions of the "is" as well as considerations of the "ought."

3.  Kennedy's own resolve in the face of great uncertainty, as well as significant opposition and debate among his advisors, was on display, but there were neat little tidbits of "do I or don't I" along the way to which we can all relate - that is, do I honor the value of courage or the value of consensus?  In short, when is right to speak one's mind?  After the decision was taken (all of Kennedy's advisers in favor of blockade, except for General Taylor, Admiral Anderson, and John McCone - the military and intelligence people), Adlai Stevenson, who was then the ambassador to the U.N., raised the "what if" question about failure of the blockade, whether the next step would be diplomacy or war, and what the U.S. might trade (obsolete Jupiter missiles in Turkey and Italy, or the "non-strategic" base at Guantanamo).  JFK's discussion with RFK about Stevenson's courage in raising the issue (and thus being thought weak or cowardly), and Stevenson's own later insecurities about it are worth the price of admission (Robert was excoriating Stevenson for almost blowing the consensus RFK had achieved with the military, and recommended that JFK replace him immediately with John McCloy) .  Similarly, the air force general (I can't believe I'm saying this if it was Curtis LeMay) was honest about capabilities. 

4.  Kennedy briefed congressional leaders, whose response was "we'll support you for now, but we think you are wrong, and you can expect us to second guess."  Richard Russell was particularly obnoxious, and I didn't realize that William Fulbright also told Kennedy that he thought a pre-emptive airstrike was the right thing to do.  Kennedy's stewing on the way out of the meeting toward his speech was typical of how most of us would react - something like "well, you can take this job and shove it, if that's all the thanks you get for making a hard call."

5. It was interesting to watch Kennedy keep the wheels on by steering away from the extremes.  He used Stevenson's comment about diplomacy to take a hawkish position about the primacy of getting rid of the missiles, no doubt to allay the military people whose support he needed to make the blockade work.  He appeased Bobby by allowing him to add McCloy to Stevenson's mission at the U.N.

Again, it all turned out okay, but you have to have been there to sense just how scary it was, and how open the questions and judgments were.

September 18, 2009 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Quick-N-Easy--Not!

The Mississippi Supreme Court has imposed a public reprimand of a judge for his failure to render a decision in a timely manner. Noteworthy is the fact that the party who filed a summary judgment motion was not promptly decided was named Quick-N-Easy Grocery, Inc. Also noteworthy is the fact that the judge had previously been disciplined for similar lapses and is named Judge Agin. (Mike Frisch)

September 18, 2009 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Thursday, September 17, 2009

Quid Pro Quo

The Minnesota Supreme Court imposed a six-month suspension without pay of an elected district court judge. The judge was represented by an attorney in connection with his divorce. He had incurred and owed the lawyer's firm almost $100,000. Over a 3 1/2 year period, he appointed the lawyer's firm to perform court-compensated mediation services. When the judge was negotiating a fee reduction, the communications between the two suggested a linkage between the fee negotiation and the appointments. The suggestion of an improper fee arrangement came from the judge's ex-wife.

The court also censured the judge as an attorney. (Mike Frisch)

September 17, 2009 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Client Abandoned, Attorney Suspended

A report of bar discipline from the web page of the Ohio Supreme Court:

The Court adopted findings by the Board of Commissioners on Grievances & Discipline that [the attorney]  violated multiple provisions of the Code of Professional Responsibility by repeatedly making false and misleading statements during child custody and support proceedings before the Cuyahoga County Juvenile Court, and subsequently abandoned her client by walking out of the courtroom in the middle of a hearing.

In imposing an indefinite license suspension, the Court found that [the attorney] violated the state disciplinary rules that  prohibit an attorney from engaging in conduct involving fraud, deceit, dishonesty or misrepresentation, conduct prejudicial to the administration of justice, withdrawing from employment without taking steps to avoid harm to a client, intentionally causing prejudice or damage to a client and knowingly making a false statement of law or fact in the course of legal representation.

The court's decision is linked here. The court concluded that the attorney made a series of misrepresentations regarding scheduling and discovery. The transcript of the hearing from which the attorney abruptly departed is worth a read. The attorney complains that the case will take 15 years to conclude and states that she:

...hereby resigns because this is a travesty. Let me tell you a travesty...I'm not available for the next 15 years and that's what this is all about...I beg the Court to allow [the client] time to find new counsel because I cannot handle this case. I cannot be here. I cannot deal with this anymore because it is an absolute travesty. I have a severe headache, I feel very ill. I beg the Court to please continue this case.

The attorney did not participate in the disciplinary hearing.  (Mike Frisch)

September 17, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Exploitation

In a mortgage foreclosure action, the New York Court of Appeals has held that the defendant had sufficiently alleged that the plaintiff (her attorney and paramour) had exploited a fiduciary relationship and secured through fraud an arrangement where he was the lender and she the borrower on a condo purchase. He had a friend represent them both in the closing on the loan. They later married but there was a complication--he already had a wife and two children. When the situation unraveled, he foreclosed on the condo.

The court also concluded that the defendant had sufficiently stated a claim of fraudulent inducement to marriage. An earlier post concerning the case from the ABA Journal is linked here. (Mike Frisch)

September 17, 2009 in Clients | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 16, 2009

For The Benefit Of Consumers

An ethics opinion from North Carolina concludes that a lawyer or law firm may include information about prior results on a web page:

The consumer of legal services benefits from the dissemination of accurate information in choosing legal representation. See D.C. Legal Ethics Comm., Op. 335 (2006). Lawyers also benefit from the dissemination of accurate information when seeking to enlist the aid of co-counsel in a particular matter. A consumer researching law firms on the internet expects a law firm's website to include information about the firm's past successes, and many firm websites currently include a "verdict and settlements" section. The law firm's duty is to provide that information to the consumer without creating an unjustified expectation about the results the lawyer can achieve. However, the requirements set out in 2000 FEO 1 may be so burdensome that they discourage lawyers from providing any information about verdicts and settlements and thereby effectively prevent consumers from getting helpful information.


Therefore, a website may include a "case summary" section if there is sufficient information about each case included on the webpage to comply with Rule 7.1(a). Some of the required disclosures set out in 2000 FEO 1 should be included in the case summary section of the website. The summary should reference the complexity of the matter; whether liability and/or damages were contested; whether the opposing party was represented by legal counsel; and, if applicable, the firm's success in actually collecting the judgment. Providing specific information about the factual and legal circumstances of the cases reported, in conjunction with the inclusion of an appropriate disclaimer, precludes a finding that the webpage is likely to create unjustified expectations or otherwise mislead a prospective client.

 

An earlier opinion was modified to the extent it was inconsistent with this opinion. (MIke Frisch)

 

September 16, 2009 in Economics | Permalink | Comments (0) | TrackBack (0)

Suing Lender After Default Deemed Frivolous

A Massachusetts attorney who had defaulted on Law Access Loan Program loans that were guaranteed by The Educational Resources Institute ("TERI"), was sued by TERI, which obtained a default judgment The attorney sought to set the judgment aside on grounds that a district court found to be "perilously close to being frivolous." Thereafter, the attorney filed suit against a number of lenders and servicers of educational loans including TERI and its lawyers. The suit was resolved by summary judgment as to all defendants, with a finding that the suit was "wholly insubstantial, frivolous, and not advanced in good faith."

The attorney was charged with disciplinary violations related only to allegedly frivolous claims brought against the lender. The loan default was not charged as an ethical violation.

A single justice of the Supreme Judicial Court determined that the attorney's litigation behavior had violated ethical rules but noted that not every finding of frivolous claims merits disciplinary sanction:

There is no question that the respondent ignored valid summonses that he received, failed to respond to a valid action against him, and then engaged in repeated and persistent efforts to obtain relief from the default judgment that TERI had obtained in that action; there is also no question that these efforts were rejected by every tribunal that considered the respondent’s filings. As the special hearing officer noted, however, the misconduct cited in the petition for discipline concerns only the respondent’s “filing of frivolous claims in Superior Court,” not his various motions in the District Court, and not his appeals. The respondent’s Superior Court claims against TERI were found to be in violation of [a statute], and the respondent’s action in bringing and asserting those frivolous and unfounded claims required what can be seen as unnecessary expenditure of judicial resources as well as of the time and effort of opposing counsel. But, of course, every judicial award of fees and costs... because it must be based on a finding that the claims or defenses at issue were “wholly insubstantial, frivolous and not advanced in good faith,” involves the same arguably unnecessary expenditure of judicial and attorney resources - that is the point of the statute’s provision for the award of fees and costs. It is clear, however, that a judicial imposition of a sanction..does not result automatically or generally in the initiation of disciplinary proceedings, much less a sanction of suspension from the practice of law.

The single justice noted that the attorney has acknowledged the misconduct and determined that a proposed actual suspension was not required:

...in recommending suspension in this case, the board [of Bar Overseers] expressed concern about what it perceived as the respondent’s total lack of acceptance of the judgment that his lawsuit was frivolous, lack of insight about the nature of his misconduct, and his inability to appreciate the abusive (and ultimately self-defeating) nature of his behavior in this matter...I believe that the respondent may, finally, accept the judgment that the Superior Court action was frivolous and unfounded, and it is also worth noting that he apparently has been paying back the monies owed to TERI as well as the attorney’s fees that the judge awarded. It is also significant that throughout all the stages of this case in the courts (although not at all of the stages of discipline), the respondent represented himself. He serves, in my view, as a prime illustration of the adage that a lawyer who represents himself has a fool for a client. The respondent has not been subject to any prior discipline. This is not a fact in mitigation, but it might possibly suggest that when he is acting as an attorney for others, his conduct does not reflect the same type of persistent advancement of unlikely (at best) or groundless claims and arguments.

In consideration of (1) the disciplinary cases cited above that imposed a sanction of public reprimand or less for misconduct involving the advancement of frivolous and unfounded claims, and (2) the concerns articulated by the board (as well as the special hearing officer and appeal panel) in relation to this respondent and this case, I conclude that the appropriate level of discipline is a suspension for three months, suspended for one year under probationary conditions...One of the probationary conditions is to be - as the board, the appeal panel, and the special hearing officer all recommended - that the respondent take and pass the MPRE within a year. The second condition is that the respondent enter into a peer review or monitoring agreement, to be determined by bar counsel, for the period of one year.

(Mike Frisch)

September 16, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 15, 2009

Reciprocal And Sensible

The Wisconsin Supreme Court imposed a reciprocal 30 day suspension on an attorney suspended for that period of time in Arizona. The court reviewed the facts facts found in the original disciplining jurisdiction:

The following facts are taken from documents relating to the Arizona disciplinary proceedings, which were attached to the OLR's complaint and acknowledged in the parties' stipulation.  In 2002 Attorney...was the defendant in a malpractice action.  Shortly after the malpractice action was settled in February 2004, Attorney...used an assumed name to send six e-mails to the attorneys who had represented Attorney...'s former client in the malpractice action against him.  The e-mails contained profane and abusive language, and some of them contained slurs.  In addition, some of the e-mails threatened physical harm to the opposing attorneys and mentioned their home addresses, causing distress to the attorneys and their families.  The police were contacted and subsequently learned that Attorney...had been the sender of the e-mails.  Attorney...had apparently stopped sending the e-mails of his own accord prior to being apprehended by the police.

Attorney...was charged with and pled guilty to one count of misdemeanor harassment.  The Arizona trial court imposed a $2,500 fine and sentenced Attorney...to ten days of unsupervised probation.  The probationary period was subsequently waived because Attorney ...immediately paid the fine.

The court found the record from Arizona reflected a thorough proceeding and deferred to the Arizona sanction determination. Arizona also had imposed a two-year probation. The court found that this aspect of the sanction is fulfilled by successful completion of the Arizona probation rather than through supervision in Wisconsin.

The trend of email-related misconduct continues. (Mike Frisch)

September 15, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, September 14, 2009

No Interim Suspension On Email Charges

The Louisiana Supreme Court denied a request for an interim suspension of an attorney. WDSU.com reported last month:

[The attorney] is at the center of one of the e-mail controversies at City Hall. She was brought before the disciplinary committee to determine whether or not she acted unethically in her handling of City Council e-mails.

[The attorney] requested the e-mails of four City Council members back in December. Sanitation Director Veronica White gave the e-mails to Washington without going through the city attorney's office, which is the normal process.

Even though the [Attorney Disciplinary] board elected not to discipline [the attorney], the case still will be reviewed by the Louisiana Supreme Court, which has the final say.

Additional details may be found in this post from NOLA.com:

New Orleans lawyer Tracie Washington defended herself Thursday against a claim that she breached a professional conduct rule in connection with her handling of thousands of e-mail messages sent and received by City Council members.

City Councilwoman Stacy Head also testified in the closed-door hearing of the Louisiana Attorney Disciplinary Board in Metairie, said Washington's attorney, Clarence Roby.

Board members within 10 days must make a recommendation to the state Supreme Court about whether to temporarily suspend Washington's law license, drop the case or pursue other action. The judgment may not be known for months.

No recommendation about Washington's professional status was made today. "Tracie's license has not been suspended," Roby said.

Roby said Washington is alleged to have broken Rule 4.4(b) of the of the Rules of Professional Conduct, which states that a lawyer who receives a document that "appears to be subject to the attorney-client privilege or otherwise confidential ... shall refrain from examining the writing, promptly notify the sending lawyer, and return the writing."

At a council meeting this afternoon, Head refused to discuss today's hearing.

"I don't know what you're talking about," she said. "Whether I was there or not there is not something I'm supposed to talk about under my personal ethics obligations."

The e-mail controversy stems from a public records request made by Washington -- head of the Louisiana Justice Institute -- last December asking for copies of all e-mails sent and received by four City Council members.

Washington received the e-mails from the city's Sanitation Director Veronica White, not from the city attorney's office, which typically screens public records requests.

Washington posted on her Web site some of the e-mail messages written by Councilwoman Stacy Head and others.

The question before the legal disciplinary panel is whether Washington sidestepped the ethics of her profession in how she handled the messages.

The 4th Circuit Court of Appeal has agreed with Washington's contention that she had a First Amendment right to post the documents. The Louisiana Supreme Court immediately stayed that decision and later declined to hear the case on the merits.

The high court's actions, however, became largely moot when some Council members voluntarily released edited versions of the documents.

 (Mike Frisch)

September 14, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

"I'm A Street Guy" Or Save The Raspberries

The New Jersey Supreme Court imposed a public reprimand based on a presentment of the Advisory Committee on Judicial Conduct that set forth the misconduct of a municipal court judge handling an video arraignment for a series of non-moving traffic violations. The defendant apparently had an attitude, and attempted to "stare down" the judge after being accused of previously failing to appear, which the defendant denied. According to the judge, the defendant made a "raspberry" sound and "gestured to [the judge] with the middle finger touching his mouth." The defendant also directed a profanity to the judge.

The judge called the defendant back to the video camera and said (in part): "...you're not a street guy...but I'm a street guy. ...I didn't get offended when you gave me the old fist up in the air. That's okay. I didn't really care about that. But when you give me raspberries walking out and you give me some kind of disrespect like that, I'm just telling you that's contempt in the face of the court. You're going to jail. You're going to stay there for 30 days."

When the defendant tried to discuss the issue, the judge raised the stakes to 45 days, then 60 days and finally 180 days.

The presentment found that the exchanges were undignified and sarcastic and that the "sentencing of [the defendant] more closely resembled an auction than a judicial proceeding..." (Mike Frisch) 

September 14, 2009 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Sunday, September 13, 2009

Bertrand Russell on Throwing Away a Garbage Can

Posted by Jeff Lipshaw

While Mike Frisch is off making national news and Bill Henderson is laying bare the problems of the profession and the academy, I'm pondering replacing my garbage cans (Sunday is garbage take-out evening here in Neighborhood Nine of our fair city, Cambridge, MA).  I'd like to get a couple of the tote models with wheels and attached covers, but I'm somewhat intimidated by Images-2 my experience over thirty years of married life in trying to throw away a garbage can.  It occurred to me that perhaps this was the mundane household event that caused Bertrand Russell to come up with his famous paradox - namely, whether the set of all sets that are not members of themselves is a member of itself.  If the set is a member of itself, it is not a member of itself.  If it isn't a member of itself, it is a member of itself.

Other than writing in big letters - PLEASE TAKE THIS GARBAGE CAN BECAUSE IT IS PART OF THE GARBAGE - the question is whether set of garbage cans that I don't want is a member of the set of all of the other things I don't want.  Since the garbage collectors can't resolve the paradox, they never take the garbage can.  Maybe this is why my father-in-law was famous within the family for always repairing and never throwing away garbage cans.

I'm pretty sure there are drugs being advertised on TV right now that could cure me of thinking like this.

UPDATE:  Just after posting this, I took the dogs on their afternoon walk, and saw something demonstrating Images-3just how pervasive and intractable this problem is.  In Cambridge, we recycle a lot.  If you have yard waste, it goes in a separate pickup.  If it's in a regular garbage can, you put a bright red bumper sticker that says YARD WASTE ONLY on the can.  We walked by such a can that had another handwritten note stuck to it that said "Trash."  Hmm, I thought, was this a homeowner trying to throw away a garbage can?  No, I  concluded, the can looked okay.  He or she was simply trying to override the bumper sticker to indicate that it was real trash and not yard waste.  I realized that I was being flip earlier in suggesting one could solve the problem with a note to the garbage collectors.  To remove all ambiguity, you'd have to write a note that made it absolutely clear that the can itself, and not just its contents, were part of the trash.  By the time you got done, it would be so long that no self-respecting garbage collector, intent on grabbing the can, dumping its contents, and then flinging the can and its lid so far away from the house that retrieving it later was a kind of community grab-bag, would ever read it.  Harrumph.

September 13, 2009 | Permalink | Comments (2) | TrackBack (0)

LPB Credited With Breaking Story - New York Times Front Page Article

Kudos to Mike Frisch, whose post on disciplinary proceedings arising out of a lawyer's blogging activity provoked a front page story in the New York Times today.  [Jeff Lipshaw]

September 13, 2009 in Frisch | Permalink | Comments (0) | TrackBack (0)