Tuesday, January 20, 2009
Posted by Jeff Lipshaw
Sorry, ABA Journal, but I'm going off topic for a minute.
I've been transfixed all day watching the inaugural (the Obamas are now walking on Pennsylvania Avenue, and I'm worried about security!), but my bigger question is whether in a day that followed a big night, where they started at 8:30 this morning, did the big ceremony, had lunch, and have to do parties tonight, do they get to go up in the residence, kick off the suits, throw on some sweats, and just hang for a couple of hours before they have to put on the gowns and tuxes?
The closest in my experience was my daughter's bat mitzvah. We had the dinner for all the out-of-town relatives the night before. We didn't go to St. John's Episcopal and have coffee with the outgoing President, but we did have to show up at the Temple early for pictures and a short meeting with the rabbi. We too had a long and emotional ceremony. We didn't do lunch in Statutory Hall, but we did a lunch in the social hall (complete with candle lighting and toasts). Nor did we have a parade, but I did take the minivan over to pick up the soft serve ice cream machine. And there wasn't an inaugural ball, but we had a bowling and karaoke party for the kids.
All I know is that by about 5:00 p.m. I was beat. We had about a 90 minute interregnum where we got to catch our breath. Then it was off to Langan's Pizza and Bowl for the festivities, and my karaoke version of "Midnight Train to Georgia."
I hope they get some time to veg a little bit.
Mitch Rubenstein, editor of our sister blog, Adjunct Law Prof Blog, has posted on SSRN an article published in the Northwestern U. L. Rev. Colloquy, Lawyer's Worst Nightmare: The Story of a Lawyer and His Nurse Clients Who Were Both Criminally Charged Because the Nurses Resigned En Mass. Here's the abstract:
Imagine that a group of foreign registered nurses approach their lawyer because they feel abused and want to quit their jobs. They signed an employment contract agreeing to remain employed for three years and are unsure of their rights. The contract that they signed also contains a $25,000 liquidated damage provision. The lawyer advised his clients that they have to right to quit, and after they quit, the lawyer and his clients find themselves at the center of a massive criminal and civil controversy. Both the lawyer and his clients are criminally charged with endangering the welfare of critically ill pediatric patients and related crimes because the nurses resigned en masse without notice. You might think that such a case could not arise in Twenty-First Century America, but in 2007 that is exactly what occurred in Suffolk County New York and resulted in a New York appellate court having to prohibit the criminal prosecution of both the nurses and their attorney. Matter of Vinluan v. Doyle, ___A.D.3d___, 2009 WL 93065 (2d. Dep't. Jan. 13, 2009).
This Essay examines this troubling case, where the court held that such a prosecution offended the Thirteenth Amendment and the attorneys First Amendment right to provide legal advice to his clients. This Essay explores the public policy issues raised by this case, whether nurses have the same right to withhold their labor as other employees, as well as certain issues which the court did not reach such as whether criminal prosecution of the nurses is preempted by the National Labor Relations Act. Additionally, this Essay explores legal issues surrounding the criminal prosecution of an attorney based on advice he may have given which the court ultimately found to be "profoundly disturbing." The Essay concludes by explaining that the liquidated damage provision, which may have sparked this entire controversy, was probably unenforceable as a penalty, another issue not reached by the court, that criminal prosecution of both the nurses and their attorney was unwarranted and that the Appellate Division decision was correctly decided.
January 20, 2009 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (2) | TrackBack (0)
The Washington State Supreme Court affirmed the summary dismissal of a legal malpractice case brought against a lawyer who represented the plaintiff in a divorce. Claims were also dismissed against the lawyer's former firm notwithstanding the fact that the retainer agreement was on firm stationary. The claim was that the attorney had failed to preserve the client's beneficiary interest in her spouses life insurance and misadvised her of the effect of the divorce on her beneficiary status. The court notes that the lawyer did not represent the husband, who changed the benefciary designation prior to his death.
As to the former partners:
While Ms. Estep met with Mr. Hamilton and received his business card when Mr. Hamilton was a partner with Mr. Hackney and Mr. Carroll, she did not retain Mr. Hamilton until after the partnership dissolved. Ms. Estep points to no acts of Mr. Hackney or Mr. Carroll after August 7, 2003 that would lead a reasonable person to believe Mr. Hamilton was acting with the apparent authority of his former partners. Neither Mr. Carroll nor Mr. Hackney acted towards Ms. Estep to give Mr. Hamilton apparent authority use of the retainer form. Mr. Hamilton's office location is immaterial, considering that Ms. Estep fails to show any act by the former partners misleading her.
In a 2-1 opinion issued today, the United States Court of Appeals for the Sixth Circuit remanded with instructions to dismiss a lawsuit brought by Geoffrey Fieger and Richard Steinberg under the First and Fourteenth Amendments challenging as vague and overbroad Michigan's Rules 3.5(c) and 6.5(a). These rules are commonly referred to as the "courtesy and civility" provisions of the Michigan Rules. Fieger had been disciplined in Michigan for comments made on his radio show.
The court majority found he lacked standing to bring the action. Further, there was no contention that Fieger had been singled out by disciplinary authorities or is reasonably threatened by the rules. The court noted that he has been subject to a single, isolated reprimand for violating the rules despite his regular criticism of the Michigan judiciary in vocal, harsh and vulgar terms. The court also notes that he no longer has the radio gig.
Judge Merritt dissents. He takes issue with the suggestion that the rules at issue are saved by the Michigan Supreme Court's purportedly narrow construction of its provisions: "nothing in the opinion suggests where the line between permissible and impermissible [comments] might be drawn." (Mike Frisch)
Sunday, January 18, 2009
An attorney was appointed to defend a criminal case in which the client was charged with second degree murder. He secured a hung jury at the first trial and a lesser conviction for manslaughter at the second trial. The client was sentenced the 30 years hard labor. The client made two attempts to secure habeas corpus relief without success. The client thereafter filed a complaint with the Office of Disciplinary Counsel ("ODC"), alleging that the attorney had labored under an undisclosed conflict of interest in that the lawyer grew up with the victim and that the lawyer's father had previously been in law partnership with the victim's father. The complainant alleged further that the lawyer had sought out the court appointment. The lawyer responded to the complaint by calling the allegations "ridiculous." The complaint was dismissed by ODC and a hearing panel affirmed the dismissal determination.
The Louisiana Supreme Court dismissed the dissatisfied complainant's request for review. Notably, two justices disagreed with the summary dismissal. In opinions linked here and here, the justices take the ODC to task for what is characterized as an inadequate investigation: Justice Traylor asserts that "no true investigation of the allegations was made." According to the dissents, no sworn statements were taken from the father or the son; nor was there any independent investigation beyond the accused lawyer's denial. Justice Johnson would direct the appointment of a special disciplinary counsel to conduct an appropriate investigation.
In an unrelated matter, the court conditionally admitted a bar applicant with the condition that she demonstrate a good faith effort to satisfy financial obligations on a quarterly basis for two years. (Mike Frisch)