January 24, 2009
Blago's Lawyer Resigns
Posted by Jeff Lipshaw
Well, in a rare moment of being "on topic," I was wondering about the somewhat "noisy" withdrawal by Rod Blagojevich's lawyer, Ed Genson, in which he was quoted as saying, "I never require a client to do what I say but I do require them to at least listen to what I say. ... I wish the governor good luck and godspeed." I wondered what ABA Model Rule of Professional Responsibility 1.16 had to say on this subject.
Genson would have had to withdraw if his representation would have resulted in a violation of the rules of professional responsibility or other law, but this is pretty clearly a permissive, rather than a mandatory, withdrawal. Permissive withdrawals are covered under Rule 1.16(b) as follows:
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
(1) withdrawal can be accomplished without material adverse effect on the interests of the client;
(2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;
(3) the client has used the lawyer's services to perpetrate a crime or fraud;
(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.
It seems pretty clear that this withdrawal fails under sub (4), and it wouldn't surprise me that Genson disagrees with the strategy of simply not showing up to defend in the impeachment trial. All in all, the statement may well be the best he could have done under the circumstances, because it does make it clear that it's not a mandatory withdrawal, and it's vanilla enough not to have much other impact than the fact of the withdrawal itself. Plus, it's no surprise that Blago doesn't listen to his lawyer much.
In Favor Of Screening
The Association of Professional Responsibility Lawyers ("APRL") has issued a statement in support of the recent ABA proposals favoring screening of lateral lawyers as a solution to imputed conflicts under Model Rule 1.10. The statements notes that "more than a few APRL members would oppose (and are actively opposing) the proposed amendment" and that "[i]t is important to note...that the proposed Rule 1.10 would not disturb the current regime at the extremes." The statement also includes a minority report from Mark Tuft. (Mike Frisch)
January 23, 2009
Aiding Fraud Draws Suspension
The Virgina State Bar reports the following sanction order:
On October 17, 2008, a three-judge panel of the Chesterfield County Circuit Court imposed a suspension of one year and one day on Steven Scott Biss, effective January 1, 2009. In a corporate and securities matter, he violated professional rules that govern competence, scope of representation, and misconduct that involved deliberately wrongful acts that reflect adversely on his fitness to practice.
The opinion recites findings that the attorney had assisted his corporate client in a fraudulent scheme and made misrepresentations to a judge. The attorney had represented a Hong Kong company that sought to purchase several million shares of a Delaware corporation. He violated securities laws (attributed to incompetence) and improperly released escroed shares to his client, which had not paid for them (attributed to dishonesty). (Mike Frisch)
Upward Adjustment In Sanction
The Illinois Review Board concluded, contrary to the finding of a hearing board, that a lawyer had made a material misrepresentation to a tribunal in addition to instances of neglect, failure to withdraw and other misconduct. The attorney had undertaken representation of injured plaintiffs who had been robbed of the proceeds of thier structured settlements in the failure to withdraw case. The hearing board had proposed a suspension for one year.
As a result of the misrepresentation, the review board recommended the sanction sought by the Administrator of a two year suspension:
Ducey has no significant factors in mitigation, as the positive testimony that he presented about his character was contradicted by the testimony of two of the Administrator's witnesses that his reputation for truth and veracity in the legal community was "extremely poor" and "extremely negative."
Based on the serious nature of Ducey's misconduct and the significant factors in aggravation, we conclude that a two-year suspension is warranted. Recently, in In re Kearns, No. 04 CH 80 (Hearing Board, Dec. 13, 2006), petition for leave to file exceptions allowed, No. M.R. 22495 (Sept. 17, 2008)) the supreme court suspended an attorney for two years and until further order of the court for employing an alien not authorized to be employed in the United States, counseling or assisting a client in engaging in illegal conduct, making false statements in an immigration application on behalf of a client, engaging in a conflict of interest, improperly using confidential client information, engaging in the unauthorized practice of law, neglecting two client matters, and failing to promptly turn over a client's file.
Unlike Ducey, Kearns engaged in criminal conduct. Kearns is relevant, however, because of the Hearing Board's focus on Kearns' false statements as well as the fact that Kearns involved numerous types of misconduct and several client matters. See also In re Vickers, 00 SH 77, M.R. 18384 (November 26, 2002) (two-year suspension until further order of court for neglecting two matters, engaging in the unauthorized practice of law, and failing to communicate with clients); In re Thebeau, 111 Ill.2d, 251, 489 N.E.2d 877 (1986) (two-year suspension for notarizing signatures that were not witnessed, misrepresenting facts to a court, and knowingly permitting client to commit forgery). Considering the nature and totality of Ducey's conduct, we conclude that a suspension of two years is necessary to protect the public, maintain the integrity of the legal profession, and caution other attorneys against engaging in similar misconduct.
We further determine that, like Kearns and Vickers, Ducey's suspension should run until further order of the court. The Hearing Board declined to recommend a suspension until further order of the court, concluding that Ducey is capable of understanding and following the rules of ethics if he chooses to do so. However, at the time the Hearing Board made its recommendation, Ducey was not under suspension for other misconduct as he is now. Additionally, based on the record and Ducey's conduct in these disciplinary proceedings, it is evident he does not appreciate the seriousness of his misconduct. Unlike the Hearing Board, we are not confident that Ducey will choose to conform his conduct to the rules of ethics. For these reasons, we are left with the firm conviction that Ducey should not be allowed to return to practice until he has demonstrated to the supreme court that he is capable of and committed to practicing law in an ethical manner.
As we have seen in prior bar discipline cases, the "conduct in [the] disciplinary proceeding" can play a major role in the bottom line sanction. (Mike Frisch)
Disagreement Over Sanction
An attorney was the subject of bar proceedings rooted in three instances of driving while intoxicated in 2001 and 2002. In the second incident, he drove to the residence of his ex-wife's boyfriend while intoxicated. He smashed out the vehicle windows of the boyfriend's car with a shovel and fled in his own automobile. The police were able to stop him after a chase. He refused to exit the vehicle despite police commands and was pulled out of the car at gunpoint. His minor child was in the front passenger seat. The third incident involved him broadsiding another car while driving his gold BMW. He fabricated a claim that a stripper from the Gold Club was driving the car. He then appeared at the Office of Disciplinary Counsel and refused to answer questions, citing the Fifth Amendment and his right to privacy.
The Louisiana Disciplinary Board has recommended that the attorney be disbarred: "this case is not strictly contained to criminal acts...the Board views [his] dishonestry and obstruction during this disciplinary proceeding to be a central focus of this case and warrants an upward deviation from the baseline sanction of suspension to disbarment. Respondent has obstructed this proceeding by refusing to answer routine questions under the guise of a constitutional privilege." The Board further found he had refused to adnit liability for the collision despite overwhelming evidence of guilt .
A dissent favored a long suspension, noting that the issues were rooted in conduct outside the practice of law and had consulted with the bar's assistance program:"the evidence shows that [he] has abused alcohol in times of stress, for which he has sought treatment and counseling. The recommendation...is too harsh. A lenghty suspension, with the safeguards of the reinstatement process, is more appropriate as the sanction in this matter." (MIke Frisch)
January 22, 2009
Randomness and the Law
Posted by Jeff Lipshaw
There seems to be an industry right now in popularizing (for the New York Times crowd at least) the Tversky and Kahneman insights on human judgment under conditions of uncertainty. Nassim Nicholas Taleb goes at it from the standpoint of financial markets in The Black Swan and Fooled by Randomness, and science writer Leonard Mlodinow (of Feynman's Rainbow fame) has a go in The Drunkard's Walk. The gist of all of it is that there is a lot more randomness in what we come to interpret after the fact as great feats of skills or stupidity. I'm having a harder time warming up to Taleb (here's a guy who takes himself pretty seriously!), but what I recall most about Mlodinow in Feynman was his engaging insecurity about living up to his appointment to the Cal Tech faculty.
Mlodinow's opening set of examples includes the game of studio executives picking Hollywood winners. He cites Sherry Lansing, the Paramount chief, who had a great run with Forrest Gump, Braveheart, and Titanic, but then backed a string of losers and got fired. The point is we find it pretty easy after the fact to attribute success or failure to specific causes, but (a) it's a hell of a lot harder to say the decisions were wrong at the time they were made, and (b) our after-the-fact intuitions about what caused what don't bear a lot of relationship to the actual probabilities of the events occurring. In the long run we all regress to the mean, whatever the mean is.
Is George Soros a financial genius? Well, he came up trumps on one big bet. So did Mark Cuban. Can we really explain who gets hired and who doesn't at the AALS meat market? Certainly there are ways to make yourself more saleable, but at a certain point, it's a crap shoot.
Here's a thesis I've been circling around for a while: everything about scientific jurisprudence wants to identify cause-and-effect. Whether it's identifying the proximate cause for purpose of tort liability, or linking up future disputes to present contract provisions for the purpose of avoiding the disputes, what we do as lawyers is link up events in the world by way of a set of rules, axioms, conditions, statutes, principles, etc. Niklas Luhmann said, in so many words, the legal system depends on an illusion, at least within legal system, that there is something called justice, even though anybody looking at it from the outside can see it's just a lot of people using those rules, axioms, conditions, statutes, and principles to further their self-interested ends. The system would break down if the illusion of justice were exploded. Justice is another way of describing in word a counterfactual world in which the randomness of "is" has given way to the order of somebody's "ought." So, for example, some lawyers argue that what they write in contracts (and how courts deal with them) has something to do with entrepreneurial success; others wonder whether maybe it's 49% perspiration, 1% inspiration, and 50% dumb luck. How many law professors are willing to take the position that much of what lawyers do (at least in the forward-looking business world, rather than the backward-looking litigation world) is swept away in the tsunami of randomness of real-world outcomes?
An example below the fold.
We had litigation that went to trial over whether another company was infringing our patent. The other company counterclaimed that the patent was invalid. We picked as our trial lawyer somebody who by all accounts was the best patent trial lawyer in the country. Indeed, he had won seven or eight straight jury verdicts. We made the usual array of strategic and tactical litigation decisions. Here's the outcome as reported in part by Bruce Rubenstein in the May, 2001 issue of Corporate Legal Times:
The jury upheld the validity of Great Lakes' patent. It awarded Great Lakes $1.04 million in damages for the two years during which Clariant stipulated to infringing the patent. Great Lakes had asked for $9 million in damages for lost profits and an additional $1 million for price erosion due to competition.
It also ruled against Clariant's claim that it hadn't violated U.S. patent law when it shipped nelfinavir into the United States.
The jury decided that the process Clariant has used since 1998 does not infringe the patent. Thus, it can continue to manufacture and sell tic-D in competition with Great Lakes.
"This vindicates the position we took throughout the litigation, that the process the company has used since late 1998 is a different process that does not infringe," says Murphy. "In fact, it's a better process for making both tic-D and nelfinavir."
Not so, according to Jeffrey M. Lipshaw, senior vice president, general counsel and secretary of Great Lakes. Lipshaw observes that Clariant stipulated to infringement.
"I don't know how you can call that a vindication," he says. "Indeed, they were found to be patent infringers, and we were awarded damages. We won on validity, and we won on the issue of whether what they did with our chemical when they made it into a drug changed it materially. It did not. The only issue they won on was their contention that, after infringing for two years, the tweaks they made to the process took them outside the scope of the patent."
Unfortunately, of course, that last issue was the difference between
$1 million and $9 million plus an injunction, so you can decide for
yourself if it was a win or a loss, given what it costs to take a major
patent case to trial. The question is: should I have been blaming myself as much as I did? Or was I just being a lawyer?
Illinois Bar Charges
The Illinois ARDC has filed bar charges against an attorney as a result of his conviction in Missouri for multiple counts of sexual misconduct with minors and witness tampering. The attorney was convicted of statutory sodomy in the first and second degree for acts of deviate sexual intercourse. The bar charges note that the attorney is serving a 65 year prison term. A news report of the underlying conviction notes that the attorney had previously served as an Assistant United States Attorney in Missouri.
The attorney had been terminated in 1999 from his AUSA position and had sued the DOJ for racial discrimination and retaliation. The United States Court of Appeals for the Eight Circuit affirmed the dismissal of that suit. The termination was based, among other contentions, on charges that he had misused his position as an AUSA and committed perjury at his brother's bank robbery trial. He had been placed on administrative leave while an internal investigation was conducted that ultimately led to his discharge. (Mike Frisch)
Regular And Timely Billing Merits Summary Judgment In Fee Action
The New York Appellate Division for the First Judicial Department held today that summary judgment had improperly been denied to a law firm suing a former client for unpaid fees in a domestic relations matter:
Evidence in the form of detailed monthly invoices addressed to defendant, together with affidavits submitted by plaintiff and defendant, indicating that the invoices were regularly and timely forwarded to and received by defendant, established plaintiff's compliance with the retainer agreement's regular billing requirements. Defendant's contention that she often orally objected to the bills by making general complaints to plaintiff that the bills were high was self-serving, not time specific, and otherwise contradicted by her actions in failing to avail herself of the offered arbitration (see Darby & Darby v VSI Intl., 95 NY2d 308, 315 ; Manhattan Telecom. Corp. v Best Payphones, 299 AD2d 178 , lv denied 100 NY2d 507 ). Furthermore, defendant's undated letter to the court, complaining that the bills were "too high" and that plaintiff continuously assured her that her husband would have to pay the bills generated in the matrimonial action, was vague and belated since it appears to have been drafted months after plaintiff had moved to be relieved as defendant's counsel.
Change Of Venue Appropriate When The Plaintiff Is A Judge
A decision today from the New York Appellate Division for the First Judicial Department:
Plaintiff was injured in Orange County allegedly because of a defective custom-made bicycle he had purchased from defendants. Plaintiff, an active Justice of the Supreme Court, New York County, commenced the instant action in New York County, where all parties reside. After joinder of issue, plaintiff moved to change venue to Kings County in order "to avoid even a possible appearance of impropriety." In opposition, defendants stated that they had "no objection" to the New York County venue, but if appearances required a change of venue, then, in view of plaintiff's apparent City-wide personal and professional relationships with judges, the change should be to a county outside of New York City, in particular, Westchester, the closest suburban county to Manhattan and well served by trains from Manhattan. In reply, plaintiff stated that he too had "no objection" to retaining the New York County venue, but, if appearances required a change, continued to urge Brooklyn as more convenient than Westchester. Under all of the circumstances presented herein, we agree with defendants that the transfer of this matter to Westchester County is appropriate.
Kudos To North Dakota
Since this is the day for Oscar nominations, my nomination for the best state high court web page must go to the North Dakota Supreme Court. Informative, entertaining (not limited to court information but providing links to news articles and other matters of interest) and as user-friendly as any court site that I visit in my on line travels. Today, the court has provided a link to the list of all attorneys ineligible to practice as of yesterday! The link provides further links to information about the attorney such as date of admission and location of practice. Some links even have a photograph of the now-ineligible lawyer.
I can't think of any other court that delivers this information in such a timely and accessible manner. Also, given the public nature of the suspension posting, I imagine that North Dakota does not have the problem of a lawyer practicing while suspended for non-payment of dues for five + years as identified in the prior Minnesota post. (Mike Frisch)
We Pay These Every Year
An attorney who had engaged in unauthorized practice from October 2003 to July 2008 was publicly reprimanded by the Minnesota Supreme Court. The attorney and the Office of Lawyers Professional Responsibility had stipulated that the failure to pay "was inadvertant in that [the attorney] had submitted the 2003 statement to his employer but neglected to ensure that his employer had paid the required fees...[he] was unaware of his fee-suspended status until receiving the disciplinary complaint and that after the disciplinary complaint was received [all fees and late charges] were promptly paid." The parties also stipluated to the sanction. (Mike Frisch)
A Period Of Unusual Stress
The Louisiana Supreme Court publicly censured a Baton Rouge parish judge in part for conduct committed while presiding over a specially created drug court. The investigation began with a report from the district attorney of a pattern of ordering defendants to pay fines to third parties unrelated to the cases. Additional reports suggested that the judge was diverting fines from their designated recipients and permitted his judicial assistant to have a second job in possible violation of state law.
The court sustaned the findings of its Judiciary Commission and agreed with its censure recommendation. The commission had found the judge's motives "convincingly good" with respect to the fines and noted that the accomodation of the assistant's second job had taken place in the wake of Hurricane Katrina when "[i]t was commonly recognized that at that time the citizens and government in Baton Rouge endured unusual stress."
Justice Victory dissented and would impose a "more serious" sanction. (Mike Frisch)
Progress Is Our Most Important Product
On display today are three orders (linked here, here and here) of the District of Columbia Court of Appeals in reciprocal discipline matters where the court concluded the proceedings in a bit more than two months. Prior to recent amendments in the court's rules, Bar Counsel would have to file a statement to the Board on Professional Responsibility and the board would then file a report to the court for final action. It could take years even in uncontested matters and (as we have previously blogged) a source of potential board mischief. Now, if the attorney fails to show cause, identical discipline is promptly imposed.
To give a flavor of the prior regime, linked here is a board report from prior to the rule change. The board has to write a ten-page explanation why virtually identical discipline in an uncontested reciprocal disbarment from New Jersey. (Mike Frisch)
January 21, 2009
An attorney admitted in 1965 had racked up a series of reprimands and short suspensions over the years was suspended for one year (consecutive to an ongoing suspension) for client-related misconduct and income tax violations. The court had called for further briefing after receiving a stipulated proposed disposition but ultimately adopted the sanction:
Attorney Woods has an extensive disciplinary history. Attorney Woods' misconduct in this matter seriously compromised the legal rights of his client, D.B. Upon review of the stipulation, this court questioned whether the proposed one-year suspension was inadequate under the circumstances, particularly given Attorney Woods' extensive disciplinary history. Accordingly, this court issued an order directing the parties to justify the recommendation for discipline contained in the parties' stipulation.
Both parties filed written responses. The OLR provided this court with a 14-page detailed memorandum which analyzed some 11 disciplinary cases involving neglect of client matters. The OLR advised the court that typically, the misconduct alleged in this complaint would warrant a suspension in the range of 60 to 90 days. The OLR also analyzed nine disciplinary cases involving failure to file income tax returns or pay income tax liabilities. Absent his extensive disciplinary history, Attorney Woods' misconduct in this matter would likely warrant a suspension of his license to practice law in
for a period of 90 days to six months. Here, however, the OLR was mindful that Attorney Woods' previous disciplinary history is a significant aggravating factor justifying a more lengthy suspension.
Upon review of the OLR's statement in support of the stipulation, this court is persuaded that a one-year suspension of Attorney Woods' license to practice law in Wisconsin——imposed consecutive to his current suspension——is adequate discipline for the misconduct committed in this matter.
Ex-Detroit Mayor Rebuffed
The Michigan Attorney Discipline Board yesterday denied the petition of former Detroit Mayor Kwame Kilpatrick to set aside an order of bar license revocation issued on October 31, 2008. He had argued that his criminal plea agreement indicated he would "surrender" his law license without defining that term. Thus, he contended, he had resigned "under objection" and sought to set aside the revocation. The board found that he had unambiguously agreed to revocation and that the resulting order had not been erroneously entered. (Mike Frisch)
Judge Suspended For Three Days
An Indiana Superior Court Judge was suspended without pay for three business days by order of the Indiana Supreme Court. The judge's son had died accidently and his drug use was a contributing factor. The judge attended the sentencing on weapons charges before another judge of a defendant "whom [he] believed played a tangential or indirect role in his son's drug use..." and stated to prosecutors "[l]aw abiding citizen, my ass!...[the defendant] was a 'drug dealer.' " He also asked people in the front row if they were related to "that piece of shit?"
The court found that mitigating factors warranted the sanction. He had only intended to observe the sentencing hearing and has taken measures to address his grief. One aggravating factor was a prior public admonition for taking action in his son's misdemeanor case. (Mike Frisch)
A Louisiana hearing committee considered bar charges filed against a judge who had been removed from office for, among other campaign improprieties, using his office staff to perform campaign activities on threat of losing their jobs if they refused and lying under oath in the ensuing investigation. He had been criminally charged with perjury and public salary extortion and pled guilty to a reduced charge of conspiracy to commit public payroll fraud. He had been suspended as a result of the conviction and the Supreme Court denied his application for reinstatement.
In this bar proceeding, he contended that the proceedings be dismissed for lack of jurisdiction because the sanction of removal from office has already been imposed. The committee recommends that jurisdiction be exercised in light of the Supreme Court directive that "necessary disciplinary proceedings be instituted." The committee found that the accused had lied under oath and was "evasive and unwilling to accept responsibility" for his perjury. The committee found the sanction question a "difficult case" but recommends permanent disbarment. (Mike Frisch)
Disbarment But Not Permanent
A Louisiana hearing committee has recommended the disbarment of an attorney convicted of theft of more than $500 from Kiko Foods. This was not shoplifting; rather, he was Kiko's chief financial officer with "direct access to and control over the corporate bank accounts and financial records of the company." He had issued numerous checks for his benefit payable to cash, totalling over $276,000 and failed to pay quarterly payroll taxes to "obstruct discovery of his embezzlement."
The committee noted that the attorney had self-reported the conviction and has been treated for a gambling addiction. These factors led to a recommendation that there be a possibility of reinstatement. (Mike Frisch)
January 20, 2009
Chief Justice Roberts Joins "One Really Big Flub" Pantheon; Rowan Atkinson Considered for 2012 Oath
Posted by Jeff Lipshaw
You don't get into this club by being a loser. Oh no. You have to have a life of great accomplishment. But you also have to be remembered primarily for one great flub. The charter member was Chris Webber of "I thought we had a time-out" fame, and he was joined by Phil Luckett, the referee who couldn't seem to get the coin toss straight.
Other nominees will be accepted in comments.
Well, it could have been worse. Rowan Atkinson could have been administering the oath.
No Need To Suspend
An attorney who was convicted of failure to file state tax returns in 2003 and 2004 was censured by the New York Appellate Division for the First Judicial Department. A non-suspensory sanction was deemed appropriate:
Respondent presented substantial mitigating evidence. It is uncontested that her failure to file taxes was due to a dire financial situation which was primarily attributable to expenses she incurred in taking care of both her parents for over twenty years. She was not motivated by dishonesty, a lavish lifestyle or the desire for a personal accumulation of wealth. Moreover, respondent voluntarily disclosed her failure to file federal income taxes to the IRS. She corrected her failures with the IRS, reached an agreement, and complied with a payment plan to satisfy her outstanding federal taxes, plus interest and penalties. Respondent acknowledged and took responsibility for her failure to similarly reach out to the State Department of Taxation and Finance. She related her intention to contact the state after her federal liabilities were repaid. While she testified about severe debt and her medical and psychological problems, she did not seek to excuse or justify her conduct but to demonstrate how her mind set negatively contributed to her ability to adequately address her day-to-day personal needs. Respondent admitted that this caused her to pursue a course of action contrary to law, her own self-interest and her own good judgment. Respondent fully cooperated with the state authorities and the Committee in both the criminal and disciplinary matters. She has no disciplinary history, she has an excellent reputation as an honest and skilled practitioner, and she has expressed remorse.