October 9, 2009
Son On The Run
Reciprocal discipline of a 90 day suspension was imposed by the Kansas Supreme Court in a matter where that same sanction had been imposed in Colorado. The attorney had a son who also was an attorney. The son was charged with two counts of sexual assault on a child, conspiracy and assault on a child. He was released on bond and failed to appear for trial. He moved from Mexico to Guatemala to Costa Rica. The father was added as a signatory to the son's bank account, sold the son's home and Corvette and made a series of deposits in the account that the son was able to access through ATM withdrawals. The son was eventually arrested, extradited, convicted and disbarred.
The attorney had practiced without prior discipline for over 40 years, was remorseful and had fully cooperated. A minority of the court would have imposed the more severe sanction of indefinite suspension.
This case calls to mind a decision of the Maryland Court of Appeals where the court majority imposed disbarment of an attorney who helped his son flee to Israel after committing a murder: "This is not a case of this Court passing moral or criminal judgment on a father for trying to protect his youngest son, nor is it the Court punishing a surrogate for a crime where the accused has escaped the reach of Maryland's law...It is merely the process by which this Court protects the public from attorneys whose actions fly in the face of their legal obligations to the public and their own profession."
The Maryland case has a dissent that is worth a read: "...the extreme language and tone of the majority opinion might lead a reader to conclude that the respondent was the one who committed the homicide." The dissent notes that the son was tried, convicted and imprisoned in Israel (he was a dual citizen). The assistance was provided before an arrest warrant was issued. According to the dissent, an attorney or parent would not obstruct justice by delivering a potential defendant to a jurisdiction where a lesser penalty might be imposed. Indeed, Maryland and Virginia prosecutors had agreed to send the alleged Beltway Sniper to the jurisdiction (Virginia) where a death penalty would more likely be obtained. (Mike Frisch)
More Wrong Turns
The Kansas Supreme Court imposed a public censure based on the findings of misconduct arising from a traffic stop of the attorney's wife. She was pulled over for failing to use a turn signal and was cited for not producing proof of insurance. The lawyer altered and laminated an expired insurance card and gave it to his wife without informing her that it was invalid. She was pulled over for speeding and produced the card: "An investigation ensued and the...misconduct came to light."
The attorney testified that he had altered the card because his wife was "pestering him to obtain insurance." He pled no contest to two misdemeanors. (Mike Frisch)
An already suspended lawyer was suspended for 60 days concurrent with the prior sanction by the Maine Supreme Judicial Court. The complaint in the present matter was filed by an Assistant Professor of Criminal Justice at Thomas College in Waterville, Maine. The attorney and complainant had a "brief friendship." He was at her home discussing the ongoing bar hearing in the first matter and "became quite emotionally upset and angry such that he suddenly grabbed or struck [the complainant's ] German Shepherd puppy" and refused to leave until the day despite her demand that he do so.
The lawyer denied "certain descriptions of his attitude and behavior, but ...does now agree and regret that a number of his comments and actions were improper and could have caused [the complainant] to become as upset and distraught as she described in her complaint." Tus, his conduct was "unworthy of an attorney." (Mike Frisch)
NOW President Terry O'Neill, Lawyer and Former Law Prof, Speaks Out Against Letterman et al.
Posted by Alan Childress
NOW President Terry O'Neill was for years a colleague of mine on the Tulane faculty -- and a popular teacher on subjects including legal ethics, and influential writer on the social and community effects of corporate control rules. Before that, she was a law graduate of Tulane and undergrad at Northwestern U, a partner in a NOLA law firm, and a prof at UC Davis and Denver. She is shown far right with other NOW officers.
We miss her but she has certainly gone on to great things. Here is part of her appearance on Joy Behar's show on HLN. She, Gloria Allred, and others are weighing in on the David Letterman workplace situation. NOW is particularly not happy with how the media has trivialized it, and how unrepresented women are in CBS's corporate governance. (See how writing law review articles can actually inform one's real life?) Here is Terry O'Neill's press release on the David Letterman scandal, noting for all of us, not only constituents and women, why that kind of situation is harmful:
Every woman -- and every man -- deserves to work in a place where all employees are respected for their talents and skills. The National Organization for Women calls on CBS to recognize that Letterman's behavior creates a toxic environment and to take action immediately to rectify this situation. With just two women on CBS' Board of Directors, we're not holding our breath.
And here is an earlier Huff Post column by former NOW president Patricia Ireland on why Terry O'Neill should be elected president -- O'Neill's platform was to take NOW back out into the world, blogs, TV, Twitter, and locally, instead of the opponent's reported agenda, says Ireland, to keep it an inside-the-beltway DC lobbying organization focusing on formal legal positions.
Obviously the fulfillment of that platform is their taking public and
media-rich stands against Letterman, Roman Polanski, and other famous events
(and especially how the media cover them without recognizing the victims in a
serious way). The NOW press release by Terry about the health care plans and reproductive rights is
here and her YouTube vid on public option is here as "absolutely essential."
Info on 2010 NOW internships is here.
October 8, 2009
Is managing for USNWR rankings like "earnings management"?
Over on my own blog, I've commented on the yearly trend towards taking action to improve schools' USNWR rankings (see here). Other blogs are also noticing some schools' moves. TaxProf Blog noticed that some Texas schools are dropping the size of their classes, even in a time when budgets are an issue (see here). And Brian Leiter has called "shenanigans" on some schools dropping their PT programs, now that PT programs are counted in the rankings (see here).
If schools are changing their programs for good reasons--e.g., on the theory that smaller class sizes provide better learning experiences for students--I have absolutely no beef with those decisions. But if schools are changing their programs to improve their rankings, and for no other reason, how different is "rankings management" from "earnings management," where businesses hide flaws in order to make themselves look "stronger" than they are?
(Posted by Nancy Rapoport)
Reciprocal discipline of a public censure was imposed by the New York Appellate Division for the Second Judicial Department. The court described the stipulated misconduct found in New Jersey:
The undisputed facts reveal that on June 24, 2008, respondent and New Jersey Bar Counsel executed a Stipulation of Discipline by Consent, which collectively referred to charges of professional misconduct. Specifically, the Stipulation stated that on January 5, 2007, respondent was stopped by a police officer in New Brunswick, New Jersey for making an improper left turn. In an attempt to avoid receiving a traffic summons, respondent falsely stated to the officer that he was employed by the Union County Prosecutor's Office and showed him an identification card issued by the Union County Sheriff's Office. Respondent subsequently admitted to the officer that his prior statement regarding his employment was not true. Therefore, in addition to the traffic violation, respondent was subsequently charged with impersonating a law enforcement officer and obstruction of the administration of law. These charges were subsequently reduced to a disorderly persons offense, to which respondent pleaded guilty.
The Stipulation further stated that, in a letter dated July 13, 2007, respondent misrepresented to the Office of Attorney Ethics that the charges against him were dismissed by the municipal prosecutor, and that the matter arose from a "miscommunication" between respondent and the arresting officer. As reflected in the Stipulation, "[R]espondent has since admitted to the Office of Attorney Ethics that he lied to Officer Knight to get to his Court appearance and avoid getting a ticket, and that he was not candid with the Office of Attorney Ethics in the hope that the ethics matter would be dropped". Respondent admitted that his misconduct violated New Jersey Rules of Professional Conduct 8.1(a) [false statement of material fact to a disciplinary authority] and 8.4(b) [commission of a criminal act that adversely reflects on the lawyer's honesty, trustworthiness and fitness as a lawyer].
Here, respondent's admitted misconduct with respect to his convictions: (1) for securities fraud under 15 USC §§ 78j(b) and 78ff; and (2) for conspiracy to commit securities fraud, in violation of 18 USC § 371, have been held to correspond to the misconduct which would constitute a violation of New York's insider trading statute, General Business Law § 352-c(5) and (6). As respondent's criminal offenses, if committed under New York law would constitute felonies, they are a proper predicate for automatic disbarment (see, Matter of Rosenthal, supra, 64 AD3d at 18; Matter of Olesnyckyj, 43 AD3d 167 ; Matter of Appell, 27 AD3d 81, 83 ).
Accordingly, the Committee's petition should be granted and respondent's name stricken from the roll of attorneys pursuant to Judiciary Law § 90(4)(a) and (b) upon the ground that respondent has been disbarred as a result of his convictions of federal felonies that would constitute a felony under New York law.
No Discipline For DiscourtesyThe Maryland Court of Appeals has dismissed disciplinary charges brought against an attorney who had delayed responding to letters from opposing counsel and in returning medical records in a divorce case within an agreed time frame. Such conduct did not prejudice the administration of justice. The court concluded that the behavior was discourteous but not sanctionable. The court made clear that it did not condone the "trench warfare" litigation tactics of the accused attorney: "Lest the victor's laurel here on Respondent's brow be thought to be vindication of his conduct, we disabuse any reader of that perception." While the court has not yet enacted professionalism standards and a report has proposed such enactments, the report "remains hortatory." (Mike Frisch)
October 7, 2009
New Institute on Law in Latin America and Related Civil Jurisdictions to Hold Conference in Madrid Nov. 11
Posted by Alan Childress
A prof of the law school of Monterrey Tech, Carlos Gabuardi (who is also a Tulane law grad with a PhD from us in comparative law), shown below with a hopefully wise Latina Justice, passes along this announcement of a relatively new Center and its second program to be held Nov. 11, 2009, in Spain. Congrats, Carlos, and much success as the Director. Here is an intro.
The Center for Legal Innovation, Development and Research for Latin America has been established thanks to the generous support of the Instituto Tecnológico y de Estudios Superiores de Monterrey (Monterrey Tech), through the Cátedra Eduardo A. Elizondo, and the Spanish law firm Garrigues to the purpose of having a forum for discussing those issues that may have legal relevance for the Latin American region.
2. Establishing a web-based forum based upon an Internet portal with State of the Art technology for the permanent discussion of the initiatives generated within the forum by the Group of the 100.
3. Having an annual meeting of the Group of the 100 of the Garrigues – Monterrey Tech Center for Innovation, Development and Research for Latin America.
Further info on the Center is linked here in a Word document: Download CENTER - 2009 doc. And on attending the program in Madrid, just ask Carlos. Contact info for Carlos Gabuardi is at this link, and his bio is here.
Go And Sin No More
The Wyoming Supreme Court has imposed a public censure for a concurrent conflict of interest. The attoney represented a defendant charged with a drug offense. Through discovery, the lawyer learned that the client had implicated another current client who the lawyer represented in a divorce case. The criminal client and the divorce client came together to the lawyer's office. The lawyer met privately with the criminal client and advised him of the conflict. Although the lawyer disclosed the conflict (the client denied fingering the divorce client), the lawyer refused to continue the representation. Howver, the lawyer failed to withdraw from the criminal case for two weeks.
The court appointed mentors for the lawyer and indicated that any future ethical violation would result in a two-year suspension. (MIke Frisch)
The File Belongs To The Former Client
In a disciplinary matter involving the failure to return a client file, the Indiana Supreme Court imposed a private reprimand. The client had entered a guilty plea to a charge of auto theft. After sentencing, the client renewed an earlier request to see the State's discovery and all other court documents. The lawyer sent only the sentencing order and told the client that he would not "waste a lot of needless time and money sending stuff that's irrelevant for what you're obviously planning to do and that's filing some sort of post-conviction relief..." The lawyer sent a prior PCR decision of the Court of Appeals and advised the client to "read it about 14 times before you file any sort of PCR petition in your case."
The court considered that the file was provided after a grievance had been filed, the absence of prejudice and the attorney's 25 year unblemished record in determining to impose private (but published) discipline. (Mike Frisch)
Too Good A Pro Se Prison Lawyer
Posted by Alan Childress
This blurb from the Fifth Circuit Civil News daily update shows that sometimes you punish yourself by being too good, but I bet the inmate wears the opinion as something of a badge of honor, especially if he eventually actually wins on his religious freedom claim. I just wish it were published so more people could see the logic. But my thanks, still, to Robert McKnight of the Civil News for bringing it to light.
The U.S. Court of Appeals for the Fifth Circuit did not publish any non-habeas civil decisions on Monday, October 5. It released this notable unpublished decision: McAlister v. Livingston, No. 08-20297 (5th Cir. Oct. 6, 2009) (King, Davis and Benavides) (per curiam; unpublished): The district court denied inmate McAlister's request for appointment of counsel in his civil rights lawsuit against Texas prison officials. The lawsuit alleged religious discrimination against Wiccan inmates in violation of the First Amendment, the Religious Land Use and Institutionalized Persons Act, and the Equal Protection Clause. Holding: Affirmed with respect to the denial of appointment of counsel. The district court did not provide reasons for the denial, but the basis was clear enough for affirmance: "The record, 997 pages long, contains numerous pleadings, briefs, and motions that McAlister has drafted and affidavits he has gathered from various individuals. These documents are all relevant and on-point.... McAlister has sufficiently investigated his case, and his presentation of his claims and the relevant legal issues to both the district court and to this court for review has been adequate." No other factors weighed in favor of appointment of counsel. And, indeed, the Court vacated and remanded with respect to the First Amendment and RLUIPA claims. (Appeal from S.D. Tex. Case No. H-05-3228. [Link to PDF.])
That may be the 'obvious' reason for denying appointed counsel: he was too good. It certainly flies in the face of the obvious counterground: my general principle that one does not needlessly piss off the group leader of the Wiccans.
If I may reminisce, it reminds me of a case I worked on while clerking for the Fifth Circuit just after the split with the Eleventh (we got custody of the Texas inmates, while they got to raise all the loons in Florida). Some warden decided that too many clever inmates were claiming to be Jews to get the kosher food. Maybe it was less Alpoesque, I do not know. But I do know this: the warden instituted an earnesty-sifting process by hiring a local rabbi (in rural East Texas, must have been a lonely guy back then) to "test" prisoners on their Jewishness. I know that sounds like a setup for some bad ethnic stereotype jokes (or an even worse moile joke), but it is not. (If they claim to be Presbyterian, I would offer them a ham sandwich made with Miracle Whip and see if they gag, thus denying their innate Presbyterishness. Or just play Art Garfunkel's solo album and see if their eyes dialate.) As I recall, the Fifth Circuit struck down the testing procedure rather handily. The principle seemed to be that anyone could become Jewish if they wanted to be.
Merton's unintended consequences of social actions tells me that the predictable next step for the warden would be to make the kosher food kosher but inedible, or at least equally inedible if he wanted to avoid another pro se complaint.
Craig Johnson, Founder of Venture Law Group, DiesCraig Johnson, a Stanford Law School alum who left Wilson, Sonsini to form the Venture Law Group, truly a cutting edge model of what a law firm could be, has passed away after a stroke at the age of 62. He was a Silicon Valley titan. Here's the WSJ story. [Jeff Lipshaw]
October 6, 2009
Call For Papers: Law & Society Ass'n in Chicago May 27-30, 2010
Posted by Alan Childress
Call for Participation -- Due Date: December 8, 2009
The 2010 Annual Meeting of Law and Society Association Thursday, May 27 through Sunday, May 30, at the Renaissance Chicago Hotel.
Theme: AFTER CRITIQUE: What is Left of the Law and Society Paradigm?
Born out of disillusionment with the failures of liberal legalism to deliver social justice or equality, law and society scholarship at the time aimed to expose those failures and challenge liberal legalism’s legitimating premises. Twenty years after the founding of LSA, during the decade of the 1980s, the critical impulse of law and society scholarship was itself put under the microscope by some who turned critique inward, calling out law and society scholars for embracing empty empiricism or for their complicity with legal and political elites. In this period, meta-debates raged over theoretical, methodological, and political questions.
More recently events in the academy and the world seem to have squelched our appetite for critique either of the legal order itself or of the premises and purposes of our own scholarship. In an era when the rule of law has come under sustained attack, can we go beyond celebrating it and allying ourselves with its projects? At a time when there are no dominant theoretical or methodological perspectives in the academy, should we turn away from epistemological questions and just get on with our work?
The theme of the 2010 LSA Meeting–After Critique–invites us to consider the law and society enterprise today and to think about its future direction. We want to reflect on the various ways that law and society scholarship has been and should be engaged with the threat of terrorism and governmental responses to it, national and global attacks on the rule of law, questions of sovereignty and sovereign prerogative, the contemporary situation of identity politics, and the collapse of the global economy and the crisis of neo-liberalism.
This year there is a new option: the Work in Progress Paper. For info on this and any other question, contact Judy Rose.
Five-Year-Old Son Tells Truth; Lawyer Sanctioned
From the current online edition of the California Bar Journal:
[An attorney] was suspended for one year, stayed, placed on two years of probation with an actual 60-day suspension and was ordered to take the MPRE within one year. The order took effect April 3, 2009.
[He] pleaded guilty to misdemeanor driving under the influence and causing bodily injury to another person with two enhancements — he had children in the car and he refused to submit to a sobriety test. The State Bar Court found that his conduct involved moral turpitude.
In 2007, Redding police were notified about an automobile accident in which a car had overturned. They were unable to find the occupants of the car, but found a purse belonging to [his] wife. When officers went to [his] home, he refused to answer the door, and due to safety concerns about his family, the police broke in.
[His] wife had gone to the hospital with a scalp laceration and his two young children were in the bedroom. Although [he] denied he had been driving, his five-year-old son told police that his father was the driver of the overturned car. Despite [his] claims that he had been home sleeping, police observed that he was under the influence of alcohol. He performed poorly on two sobriety tests and refused to take a third.
[He] was arrested and had a blood alcohol level of .12 percent.
He was charged with four felonies, including child abuse and causing injury while driving under the influence. He pleaded guilty to the lesser charges.
The court noted that in addition to the convictions, [he] repeatedly lied to police officers. “It is of particular concern that at a time when (his) wife was in the hospital and his two young children had yet to be examined for internal injuries, (Arel’s) sole focus was to convince the officers that he was not the driver,” wrote Judge Lucy Armendariz.
In mitigation, [he] has no prior discipline record, performs extensive community service and presented nine witnesses who testified to his good character.
Joint Defense Agreement Does Create Attorney-Client Relationship
A recent ethics opinion from the Legal Ethics Committee of the District of Columbia Bar:
Joint defense agreements do not create “former client” conflicts under Rule 1.9 because members of a joint defense group do not become the lawyer’s “clients” by virtue of such agreements. However, a lawyer who participates in a joint defense agreement may acquire contractual and fiduciary obligations to the members of the joint defense group who were not the lawyer’s clients. Such obligations can give rise to a personally disqualifying conflict under Rule 1.7(b)(4) to the extent that they materially limit the lawyer’s ability to prosecute or defend a substantially related matter adverse to a joint defense group member.
Under Rule 1.10(a)(1), such conflicts are not automatically imputed to other lawyers in the lawyer’s firm. If the lawyer has moved to a new firm since handling the joint defense group matter, other lawyers at the new firm could undertake a substantially related matter adverse to a joint defense group member, provided that the personally disqualified lawyer is timely screened from the new representation. The analysis is more difficult if the lawyer has remained at the same firm. If that firm wishes to undertake a related matter adverse to a member of the joint defense group, the firm must consider: (i) whether the entire firm is bound by a joint defense agreement that one of its lawyers signed while affiliated with the firm; and (ii) if not, whether the lawyers who would be handling the new matter might have been exposed to confidential information from the joint defense group matter while that matter was being handled by others in the same firm.
A Simple Reprimand
The Maryland Court of Appeals has determined that a "simple reprimand" is the appropriate sanction for misconduct committed by an attorney in his capacity as personal reprentative of his aunt's estate. According to the court's summary, the aunt had loaned the nephew $95,000 interest free with repayment due 120 days after her death. He took five years to repay without interest for the time he was in arrears. The court concluded that he had not been intentionally dishonest and considered his "otherwise unblemished record and other mitigating factors..." While he could serve as personal representative, he was ethically obligated to collect interest on the loan for the benefit of the estate.
The facts set out in the court's opinion describe a protracted and nasty family dispute. Notably, the complaint was initiated by the attorney for the attorney's sister. He serves on the Attorney Grievance Commission. The court rejected as "unfounded" a claim that this fact had unduly influenced the actions of Assistant Bar Counsel. (Mike Frisch)
Suspension For DUI That Caused Death
An attorney who had caused a fatal car accident while intoxicated and been convicted of a felony was suspended for at least 24 months without automatic reinstatement by the Indiana Supreme Court. A report of the underlying arrest from theIndychannel.com is linked here. Details from the Indianapolis Star repoting on the criminal sentencing:
A judge sentenced a former state attorney to two years in prison today for driving drunk and causing a fatal wreck.
A special prosecutor asked for the maximum eight years in prison, but Terry J. Record, 29, instead received the advisory four-year sentence with half suspended.
Marion Superior Court Pro Tem Judge Mark Jones added four years of probation, with 80 hours of community service each year; about $20,000 in restitution to the victim’s family; and a five-year license suspension — a sentence designed to punish Record and ensure that he doesn’t harm anyone else again, the judge said.
In May 2007, Record left Brad’s Brass Flamingo after sharing pitchers of beer and shots with a stripper and ran a red light at Southeastern Avenue and Pleasant Run Parkway. His red BMW, traveling 59 mph in a 35-mph zone, plowed into Jimmy R. Cash’s truck, nearly splitting it in two.
Cash, 46, a father and husband, died at the scene. * * *
Record pleaded guilty in April to a Class C felony charge of operating a vehicle while intoxicated, causing death. He avoided more serious Class B felony charges because of evidence problems related to blood tests that prompted special prosecutor Barry Brown, a former Monroe County prosecutor, to offer the plea.
He likely will win release from prison in about 11 months, with credit for good behavior and 26 days spent in jail while his case was pending.
October 5, 2009
Loss Of Two Licenses
A lawyer who was admitted to practice in 1985 obtained a license to practice medicine in 2004. He was convicted of endangering the welfare of a child that he was treating as a patient and sentyenced to three years probation. as a result, he surrendered his medical license.
The New York Appellate Division for the Fourth Judicial Department entered an order suspending the lawyer from practice for three years. The link takes you to the court's decision page. Click on Matter of Plache to read the court's decision. (Mike Frisch)
No Recusal Required
The Maryland Court of Special Appeals has affirmed a trial judge's denial of a motion to recuse himself in a personal injury action. The motion contended that the judge's brother had drafted a will for the opposing party 17 years ago. It was further contended that the judge's brother had represented a person with the same last name as the opposing party 10 years ago, although there was no indication that the judge knew this person.
The court found that '[n]othing on the record before us approaches the gravity..." of cases that warranted recusal. The prior cases cited involved a judge accused by counsel of repeated sexual misconduct, where the judge's former wife's stepson was implicated in the matter, and where the judge had recently stated that a defendant's acquittal was an "abomination." (Mike Frisch)