Tuesday, September 29, 2009
The Louisiana Attorney Disciplinary Board has recommended disbarment of an attorney who was retained to resolve a tax matter. The client sold balloons at New York county fairs and was charged with failure to pay state taxes. The attorney failed to take action and misrepresented his lack of effort to the client. When asked to produce a fee accounting, the attorney submitted a bill for over $17,000. The board found his explanation that he had retained the records for two years after Hurricane Katrina, used these records to create his accounting and then destroyed the documents to be "unconvincing and inconceivable."
As to sanction:
The facts of this case are simple. First, Respondent made no attempt to pay off the tax debt, contrary to the desire [of] his client and his own representations. Second, Respondent claims to have earned the substantial fee, despite the lack of any supporting evidence. Third, Respondent has not refunded any portion of this fee to his client. This conduct has caused significant harm to [the client]-- his tax debt remains outstanding despite the fact that he expended an amount sufficient to pay the debt.
Is this what they mean by balloon payments? (Mike Frisch)
The Georgia Supreme Court held yesterday that fitness for readmission was established of an attorney who had voluntarily surrendered his license in 1989. He had pled guilty to charges of possession of cocaine with intent to distribute. He was pardoned in 1995 with all civil rights restored except with respect to firearms.
The court cited the following in support of its conclusion:
...he has become increasingly involved in a religious community, engaging in intensive Talmudic and Bible study. [He] performs volunteer work with a religious organization assisting Jewish inmates, attends synagogue regularly, performs community service on civic committees in lakewood township in New Jersey.
He must take and pass the Georgia bar exam and achieve a scaled score of 75 on the MPRE to complete the reinstatement process. (Mike Frisch)
Monday, September 28, 2009
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio will accept public comment until Oct. 21 on a proposed rule change to expand mandatory Supreme Court review of the character, fitness and moral qualifications of applicants seeking to be admitted to the practice of law to anyone convicted of a first- or second-degree felony. The rule currently requires mandatory review of applicants convicted of aggravated murder, murder, attempted murder or rape.
In addition, the proposed amendments would allow the Board of Commissioners on Character & Fitness more discretion in reviewing and approving the character, fitness and moral qualifications of applicants convicted of other felonies.
View the text of the proposed rule. Comments on the amendments should be submitted in writing to: Lee Ann Ward, Director of Bar Admissions, Supreme Court of Ohio, 65 S. Front St., 5th Floor, Columbus, Ohio 43215 or firstname.lastname@example.org.
In another interesting decision from Georgia involving reciprocal discipline, the Supreme Court dismissed as unproven a matter in which the attorney had entered a conditional plea to a public reprimand in Florida. The attorney had entered the conditional plea after denying charges that he had backdated two letters in 1998. He produced testimony under oath from his legal secretary as well as expert testimony.
I have not previously seen a case where an admission for sanction purposes was disregarded in a reciprocal case. Georgia lawyers take note of the benefits of an Alford plea in bar discipline matters outside of the Peach State. (Mike Frisch)
Sunday, September 27, 2009
Posted by Jeff Lipshaw
I suppose it's appropriate to conclude the Ten Days of Awe of the Jewish calendar by tying up, on the eve of Yom Kippur, a loose end I started to unravel when I was sitting here at my computer instead of participating in ritual observance on Rosh Hashanah. As I noted, "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." I have a lot of regard for what Martha Nussbaum described as the source of the religious (and all conscience-related) impulse: "the faculty in human beings in which they search for life's ultimate meaning." I'm just not crazy about what my fellow humans generally do to act on that impulse. (I also have the same kind of naive idealism about academia as a place of pure exchange of ideas, with much the same result. But that's not new. I had a kind of naive idealism about fiduciary obligations when I was a corporate officer and general counsel. My conclusion is nobody is more or less insulated from human nature in the actual practice of religion, scholarship, or business.)
Some time over the last ten days, I came across Brian Leiter's published essay on the constitutional tolerance of religion by way of his more recent draft on whether religion is even entitled to moral respect. (I agree with him that, as a matter of law, the appropriate standard is tolerance. I also agreed not to quote or cite the draft, other than this minimal reference to its context, and with the clear indication it is a draft. It is available publicly available on SSRN, albeit with the "don't quote or cite" request.) The arguments depend on his already completed conceptual construct of religion with which I take issue, and I've posted an essay to that effect on SSRN. The title is Can There Be a Religion of Reasons? A Response to Leiter's Circular Conception of Religion, and this is the abstract:
This is a comment on a definition of religion recently proffered by Brian Leiter in support of different conclusions we ought to draw with respect to religion. His analysis is ultimately circular: the problem with religion is that it is not science. Exposing the circularity requires identifying the trick, which is that he employs an appeal to common sense to distinguish religion and science. Nevertheless, the very belief in common sense is the same as the religion Leiter attacks: it is categorical and insulated from further reasons. My argument in response has three major themes. (1) The argument based on receptiveness to reasons and evidence itself arbitrarily picks and chooses reasons and evidence. (2) It is possible to posit a religion whose categorical demands on action and requirements of foundational bedrock are minimal. (3) Religion uses reason (in the sense of concepts apart from evidence) to grapple with the source of our bedrock beliefs. It differs from other such grappling only in degree and not kind of thought; once we accept the role of concept (or reason) in such work, religious or secular, we necessarily must accord bedrock status (or categoricity) to at least one concept. Finally, I suggest that adoption of Leiter's definition has a troubling implication as to our respect for personhood.
By the way, if you are curious what to say to a Jewish person on Yom Kippur, since "happy Yom Kippur" is something of a contradiction, say "g'mar tov" which is short for the full Hebrew phrase that means "may you be sealed well." The mythology is that we are inscribed in the Book of Life for the coming year on Rosh Hashanah, and the inscription is sealed on Yom Kippur. The actual prayer is called the Unetaneh Tokef, and it is the inspiration of Leonard Cohen's (above left) "Who By Fire." Consistent with the kind of grappling with which I credit the religious impulse in the essay, I interpret this as "Recognize there is a distinction between what is and what ought to be, and we can't always make them match. Let's do the best we can even when the world throws obstacles in our way."
G'mar Tov. (UPDATE: A good friend reminds me that a less highfalutin' greeting or wish is "fast fast" or "easy fast." Since that rarely applies to me, I forgot!)