Saturday, November 14, 2009

Does Popular Intellectualism Overlap With Academic Dilettantism? And What Does It Imply for the Future of Teaching Lawyers?

Posted by Jeff Lipshaw

I'm stealing some thunder because we get our Sunday supplements to the New York Times on Saturday Images-3 morning, so I can't presently link to the online version of the Book Review (do your best with the link I've given you).  The cover review is Steven Pinker (left) on Malcolm Gladwell's (right) new book, What the Dog Saw, which is an anthology of his New Yorker articles.  It's interesting Images-2 because Pinker is an academic with some reputation as a public (or popular) intellectual; Gladwell is a journalist who popularizes otherwise arcane academic or intellectual topics, particularly in mathematics, statistics, and the social sciences.  (Maybe they are bonded by their views on hair.)

Pinker's primary critique of Gladwell is simply that when he gets very far below the surface, he also gets it wrong.  There's some pretty good logic to this: if the non-expert misses the point of what the expert is saying about the particular problem, the non-expert is likely to propose a solution to the problem that is either wrong or naive.  One example Pinker points out is Gladwell's treatment of the predictive value of certain data for success in professions like teaching.  I liked the way Pinker put the point on a subject I've thought and written about a lot: the extent to which all judgments come down to a irreducible leap from what is known to what is not.  I think that's Gladwell's "blink" moment as well.  But Pinker rightly observes that does not mean that you give up on data or expertise.  Says Pinker, "[G]iven the technology you have, there is an optimal threshold for a decision, which depends on the relative costs of missing a target and issuing a false alarm."  There's still great mystery in the science and philosophy of that instance of decision, but the right answer is not to consign all decision-making to a dartboard.  Gladwell seems to be suggesting you throw the predictive data out because it might be wrong ("teaching ought to be open to anyone with a pulse and a college degree").  [Ed. note:  smart ass remark about current state of many faculties deleted.]

If you don't read the Editor's "Up Front," at page 4, however, you'll miss Pinker's equally well-taken critique of academic expertise.  He observes that academic experts (I would offer "often" but not "always") lack perspective.  "They suffer from 'the curse of knowledge':  the inability to imagine what it's like not to know something that they know.  That makes them underestimate the sophistication of readers and write in motherese rather than explaining concepts from the ground up."  (Motherese, I just learned, is an academic term for the way parents talk to children, including heightened pitch, exaggerated intonation, and increased repetition of words and clauses.  The best example I can remember offhand of witnessing misplaced motherese is when during his opening statement, a pompous opposing trial lawyer, explaining the problem with an industrial boiler, said (and I quote), "for you ladies on the jury, think of the boiler as a teapot.")

I think there are two interesting implications here, one about academic interdisciplinarity, on which I posted a week ago, and one on the future of law schools, which is presently a hot topic, having been addressed by Gerding, Ribstein, Gerding again, and others.  As to the first, the Pinker-Gladwell exchange suggests a continuum with polar extremes of narrow and deep academic specialization, at one end, and broad and shallow familiarity, at the other.  Both Pinker and Gladwell move toward the center of the continuum, albeit, I'd argue, from the opposite poles (Pinker trying to explain language and thought from an academic standpoint; Gladwell trying to do the same from a popular standpoint).  I think there's another place in the continuum, and that's where there's an attempt at intermediation between one narrow but deep academic specialty and another, in the hope or expectation that there is useful intellectual grist somewhere in the middle.  For example, I go back to Goedel's Proof.  Is it no more than a spectacular advance in symbolic logic, or does it have explanatory power in epistemology?   David Chalmers's view is that consciousness is an inherent part of the physical universe, down to particles (I'm not sure if that's fair, but it's close).  Roger Penrose thinks there's an explanation of consciousness somewhere in quantum theory.  And we haven't even gotten to the subject of "law and . . . "!  Louis Menand's comment once again comes to mind:  "The academic profession in some areas is not reproducing itself so much as cloning itself. If it were easier and cheaper to get in and out of the doctoral motel, the disciplines would have a chance to get oxygenated by people who are much less invested in their paradigms."

As to law schools training lawyers, and particularly for those of us thinking about how to educate transactional lawyers (not to mention jump-starting the development of wise judgment abilities for all lawyers), Larry Ribstein's comments strike at this same issue.   What does Larry hold up as the current state of affairs?  Pretty fairly, in my mind, that law schools teach "how to litigate and give individualized advice."  (Compare what business school teaches.)  So how do you teach a business lawyer?  Larry's on to something:  "a convergence of legal education with technology and business training;" "use disciplines such as history, psychology and economics to get potentially profitable insights into contracts and litigation;" "learn to speak the languages of the other disciplines in their firms, and these other disciplines will have to learn some law."  Joe Tomain at Cincinnati offers a CLE program to Ohio lawyers in "law and leadership" that draws on works in the humanities and history (e.g., Plato's Republic, Sophocles's Antigone; The Prince by Machiavelli); every time I mention something like that to the managing partner of a law firm, he or she immediately responds enthusiastically.

But, to quote the Ghostbusters, who ya gonna call to teach this stuff?  It has to be somebody working that line between Pinker and Gladwell - not talking in motherese, but also not shying away from dipping into other disciplines in which he or she is not "narrow but deep."

November 14, 2009 in Hot Topics, Straddling the Fence, Teaching & Curriculum | Permalink | Comments (0) | TrackBack (0)

Modified Fee Agreement Upheld

The Alaska Supreme Court affirmed the grant of summary judgment to a law firm in a dispute over the modification of a fee agreement. The clients were injured when the stairs to their rooms at a resort collapsed. They entered into a contingent fee agreement with the law firm. The agreement provided for a 25% fee if the matter was resolved before a complaint was filed, 33% after the complaint and 40% after the filing of an appeal.

The case was complicated by the bankruptcy of the defendant. The clients and law firm entered into a modified fee agreement and the case eventually settled for slightly over $1.231 million. The clients and law firm had a substantial disagreement over the computation of the fee. As required by ethics rules, the law firm paid the undisputed portion of the client's share and retained the disputed amount in a trust account. The trial court found for the law firm.

Here, the court rejected claims that the amended agreement was improper and violated the rules of professional conduct. The trial court had properly resolved any contract ambiguities against the law firm in awarding judgment and was not clearly erroneous in its interpretation of the phrase "further substantial litigation" in the modified agreement. (Mike Frisch)

November 14, 2009 in Billable Hours | Permalink | Comments (1) | TrackBack (0)

Friday, November 13, 2009


The Pennsylvania Supreme Court has imposed a suspension of a year and a day retroactive to an interim suspension in July 2007. The attorney was admitted in 1990 and had worked at Finley Kumble and later White & Case, where she "represented large financial institutions in commercial real estate transactions that often involved tax considerations." She later established her own firm and continued to do tax work.

The attorney was charged with tax offenses relating to her personal taxes and pleaded guilty to three counts of willful failure to file federal income tax returns. She served a prison term and has completed her probationary term. She experienced a number of stressful issues during the period of the offenses. The sanction here will require her to petition for reinstatement.

The Disciplinary Board rejected claims that the crimes were the product of ignorance: ""Respondent's legal background handling tax and business matters makes it all the more inconceivable that she was unaware of her obligations as to her own taxes." (Mike Frisch)

November 13, 2009 in Bar Discipline & Process | Permalink | Comments (3) | TrackBack (0)

New Data on BigLaw Contraction: Patterns of Winners and Losers

[posted by Bill Henderson, cross-posted to ELS Blog]

A careful analysis of the recently released National Law Journal 250 reveals some surprising trends.  The NLJ reports that the nation's largest 250 firms (by lawyer headcount) shrank by 4%. Yet, when broken down by geography (see figure below, click on to enlarge), nearly half of the losses (2,096) were concentrated in the 45 firms headquarters in New York City.  And another 20% (883) fell on the 17 NLJ 250 firms headquartered in Chicago.NLJ250geography2009

To put those figures in perspective, for 2008 (the baseline year), NYC- and Chicago-based firms only accounted for  24.7% and 14.7% respectively of the NLJ 250 total lawyer headcount.  In contrast, DC-based firms accounted for 9.7% of the NLJ 250 universe in 2008 but only 3.8% (161) of the total contraction.  The disparate geographic impact suggests that the reductions-in-force are probably due disproportionately (or overwhelmingly) to the decline in the volume of corporate transactions and woes in the banking and insurance sectors.  Among major markets, San Francisco-based firms shrank the least, though this glass-half-full news is probably the result of the dissolutions of Thelen Reid and Heller Ehrman in late 2008, which were both headquartered in the Bay Area. 

On comparative basis, the middle-market firms appear to be thriving.  Collectively, there was a 0.6% increase in the number of lawyers in the 91 NLJ 250 firms based outside the Top 10 markets. In contrast, firms headquartered in Top 10 markets did uniformly worst.  Below is a ranking based on percentage contraction:
  1. New York City (45 firms)    -7.0%   
  2. Dallas (7 firms) -5.9%
  3. Houston (4 firms) -5.4% 
  4. Philadelphia (15 firms)                -5.4% 
  5. Atlanta (9 firms) -5.3% 
  6. Chicago (17 firms)                      -4.7% 
  7. Los Angeles (11 firms) -2.7% 
  8. Boston (10 firms) -2.1%
  9. Washington DC (18 firms)           -1.6%
  10. San Francisco (9 firms)               -0.1% 
Firm size appears to be a major explanatory variable, particularly for associates.  Here is the breakdown of changes in lawyer headcounts by size of firm:

So what is the bottomline analysis?  I think the slowdown in the economy has made the largest firms the most vulnerable to price pressure from large corporate clients.  The largest firms have the highest cost structure (rents and associate pay), and there is some doubt whether there is a corresponding value-add for their higher fees.  At the high end, the market is pretty crowded.  An international footprint is not necessarily a competitive advantage when 20+ of firms have the same high fixed costs and similar lawyer credentials.  Not surprisingly, a lot of desirable legal work that does not require a multi-office international platform is migrating to firms further down the AmLaw/NLJ 250 food chain.  (These observations, by the way, track Larry Ribstein's The Death of BigLaw analysis.)  Indeed, anecdotal evidence from my informal network suggests that boutiques are booming holding their own [NOTE: after the original post, three additional members of my informal network suggested that boutiques were not booming but, instead, hurt less badly].

Folks, we are in uncharted waters.  The structure of the corporate bar is changing rapidly.  The giants are vulnerable.

November 13, 2009 in Law Firms | Permalink | Comments (0)

Post-Judgment Actions Lead To Disbarment

The Maryland Court of Appeals has disbarred an attorney who was a co-plaintiff (with his spouse) in a defamation action. The defendants countersued and secured a judgment for approximately $386,000. By 2007, the amount was around $431,000. The charges alleged that he had "claimed to be insolvent during this period of time, while utilizing monies in his escrow account and joint business accounts funded by his law office, for personal expenses, allgedly to avoid payment of the...judgment."

The court rejected the attorney's legal and factual contentions on review of the trial judge: "The record is replete with instances in which [the attorney] engaged in a pattern of dishonesty, fraud, and deceit, in his unrelenting efforts to conceal assets from the [judgment holder.]" Among other things, he failed to respond to post-judgment discovery requests,used escrow and pension accounts to conceal assets, fraudulently conveyed over $100,000 to himself and his wife from his corporations, and improperly paid more than $170,000 in personal expensers from his pension account. (Mike Frisch)

November 13, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Caperton V. Massey Decision After Remand

The West Virginia Supreme Court has decided the Caperton v. Massey case on remand from the United States Supreme Court. The court's decision is linked here. The bottom line:

For the reasons stated in the body of this opinion, we reverse the judgment in this case and remand for the circuit court to enter an order dismissing this case against A.T. Massey Coal Company and its subsidiaries with prejudice.

The court also issued an opinion holding that 13 emails between Justice Maynard and Donald Blankenship were not public records and were thus exempt from disclosure. The litigation had been brought by the AP. The court's reasoning:

...we conclude that none of the thirteen e-mails at issue herein constituted a public record under FOIA. None of the e-mail's contents involved the official duties, responsibilities or obligations of Justice Maynard as a duly-elected member of this Court. Twelve of the e- mails simply provided URL links to privately-operated internet websites that carried news articles Justice Maynard believed Mr. Blankenship would be interested in reading. All twelve of the news articles were written by private entities and were already in the public domain. The thirteenth e-mail did nothing more than provide Mr. Blankenship with the agenda for a meeting being held by a private organization. Consequently, logic dictates that we conclude that not one of the thirteen e-mails was related in any manner to either the conduct of the public business, or to the official duties, responsibilities or obligations of the particular public body, which was in this instance, Justice Maynard. In the final analysis, if we adopted the AP's position that these e-mails constituted public records, then “a grocery list written by a government employee while at work, a communication to schedule a family dinner, or a child's report card stored in a desk drawer in a government employee's office would be subject to disclosure. [FOIA] was never intended to encompass such documents[.]" (citations omitted)

Justice Workman reserved the right to file a dissenting opinion in both cases. (Mike Frisch)

November 13, 2009 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Thursday, November 12, 2009

Unsupported CJA Fee Requests, and Overly-Sarky Sidley & Austin Brief

Posted by Alan Childress

Two recent posts from the Law of Criminal Defense Blog caught my eye and I share them with you below.  (This is in addition to recommending Bill's nice and provocative post here this morning on outcomes in legal education -- which btw has been picked up by the ABA Journal here [they do that to Mike's posts all the time, too] and has good comments after, including several "Go Henderson"s.).

In one post, the blog (by John Wesley Hall, Jr.) reports on "a rare look at an appeal from a denial of CJA fees appealed to the Circuit Court and applying the" circuit's written guidelines.  That court was the Ninth Circuit; it held that the trial judge's "48% reduction of CJA counsel's second interim fee request was within the court's discretion based on the judge's observation of the trial not matching the trial preparation." 

I am indisputably interested in issues of federal appellate deference and standards of review, to be sure, but also what caught my eye is the decision below was by "Judge Quackenbush."  I immediately thought of Groucho's doctor-character in A Day at the Races, but that was actually Hackenbush. But my comedic instincts were not wrong.  Turns out he was originally Quackenbush but "MGM’s legal department discovered at least a dozen legitimate U.S. doctors named Quackenbush, so, for legal reasons and to Groucho’s dismay, the name was changed to Hackenbush."  More famous litigation lore, perhaps, is the Warner Brothers' rumored threat to sue the Marx Brothers for their film title A Night in Casablanca, to which Groucho wrote a letter to WB threatening to sue them for using the word “Brothers”:  “Professionally, we were brothers before they ever were.”

In another post, Hall comments on a trial judge's chastising of Sidley Austin "for dripping sarcasm in their brief."  Hall's reminder:  "You're going to win or lose without it [sarcasm], either on the facts and law or the fact the judge hates defense lawyers and defendants, and sarcasm is just unprofessional."

Hall also links to an article on lawyers AS criminal defendants, by Leslie Levin, new in the Georgetown Journal of Legal Ethics.

November 12, 2009 in Blogging, Film, Lawyers & Popular Culture, Teaching & Curriculum | Permalink | Comments (0) | TrackBack (0)

Ohio Publishes Guide To Attorney-Client Relationship

From the web page of the Ohio Supreme Court;

The Supreme Court of Ohio today released a publication that provides practical information about the lawyer-client relationship for Ohioans considering hiring an attorney.

A joint project of the Supreme Court’s Clients’ Security Fund and Commission on Professionalism, the guide is intended to promote the public’s confidence in the integrity of the legal profession in Ohio.

It is hoped that Ohioans use this guide with its easy-to-understand terms for help in finding a lawyer, what to expect after hiring a lawyer, how to avoid problems in the lawyer-client relationship, and what steps to take if problems do occur. The guide also contains a glossary of common legal terms and their definitions.

“Hiring an attorney can present many challenges to someone unfamiliar with the legal system,” said Janet Green Marbley, administrator of the Clients’ Security Fund. “The tips included in this consumer guide should go a long way toward establishing a comfort level when the need arises to hire an attorney.”

Lori Keating, secretary to the Commission on Professionalism, said other aspects of the guide speak to the duties that the attorney and the client have when working together. “Appreciating the roles each person plays and how one’s actions affect the other should reduce misunderstandings and lead to more successful attorney-client relationships.”

The guide will be distributed through multiple channels to reach Ohio consumers, including judges, clerks of court, legal aid offices and public defender offices. Attorneys should contact the Clients’ Security Fund or Commission on Professionalism for free copies to distribute to their clients.

Access the guide.

(Mike Frisch)

November 12, 2009 in Clients, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Mouth Of the Rat

The Florida Supreme Court has disbarred an attorney who had previously been suspended for demonstrating a "complete disrespect for the [bar] disciplinary process." The disbarment was based on findings that he had held himself out as licensed to practice after his suspension by maintaining his law office in Boca Raton and in communicating as counsel in connection with a California matter. The referee also found that he had engaged in unauthorized practice by ghost-helping a friend in pro se litigation in Illinois, where he was never admitted to practice.

The court rejected a variety of contentions raised by the attorney, who had asserted that the bar had proceeded improperly by "stacking" claims of misconduct against him after contempt charges were brought based on charges that he had violated the one-year suspension order. (Mike Frisch)

November 12, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Privilege Upheld

A worker injured in a fall from a scissor lift retained a law firm to sue K-Mart, where the incident had taken place. The claims were lost in K-Mart's bankruptcy,allegedly due to the failure of the law firm to properly preserve them. The injured worker then retained new counsel and proceeded against the lessor of the scissor lift on theories of product liability and negligence. The case was settled on the eve of trial for $235.000. A lawsuit alleging malpractice by the first firm was then filed.

At the deposition of the client, questions were asked about communications between the client and the second firm concerning the settlement of the claims against the lessor. The defendant law firm appealed the trial court's determination that the communications were protected by the attorney-client privilege.

The trial court's holding was affirmed by the New York Appellate Division for the Third Judicial Department. Citing a similar prior case that had upheld the privilege claim, the court concluded:

We are unpersuaded that the presence of a settlement less than the full amount of insurance, or any of the other circumstances asserted by defendants, compels a contrary conclusion in this case.

(Mike Frisch)

November 12, 2009 in Clients, Privilege | Permalink | Comments (0) | TrackBack (0)

Outcome Measures and Regulatory Failure in Legal Education

[Posted by Bill Henderson]

Over the last few years, the topic of outcome (or output) measures has been a recurring theme at various association meetings and conferences surrounding legal education.  Some of this discussion is motivated by Department of Education initiatives that want to establish a clear linkage between educational cost and economic returns.  Some schools, however, believe that their fortunes will rise when they can be judged on three years of education (e.g., bar passage rates, employment, student satisfaction) rather than the input measures that drive the U.S. News Rankings.

It is hard to imagine a more impossible task than faculty from 190+ law schools reaching a "consensus" on outcomes measures.  Yet, consensus is not required.  The ABA Section on Legal Education and Admission to the Bar, through its authority to accredit law schools, can require law schools to measure, collect, and report information that the Section determines is in the public interest.   In 2007, the Section created a "Special Committee on Output Measures" and asked it to "define appropriate output measures and make specific recommendations as to whether the Section should adopt those measures a part of the [Accreditation] Standards."

So what happened?  The Special Committee's 76-page single-spaced Final Report, issued in July 2008, made little headway in defining output measures or making specific recommendation regarding accreditation. In a nutshell, the Committee recommended that the Standards be amended so that each law school would be free to define and measure its own outcomes.  In theory, these new Standards could be given teeth by the rigor of the outcome measures (or lack thereof) embodied in a school's self-study report and strategic plan (two processes already required under the accreditation process).  This excerpt from the Final Report puts the best possible spin on the Committee's recommendation:

[A]n approach that accords significant independence to law schools would make it possible for the schools to serve as laboratories for innovation and systemic improvement. ... As law schools experiment with various models of their own choosing, the data these schools generate will inform other schools' experiments and will provide a basis for fine-tuning models for instruction and evaluation. At some point in the future, it may be the case that our understanding of outcome measures has progressed so far, and that certain views have become so widely held, that the ABA Section of Legal Education and Admissions to the Bar will be in a position to demand greater specificity in the criteria in the [Accreditation] Standards and/or Interpretations. But, at least at the present time, the Committee believes that in drafting Standards and Interpretations, it is best to give law schools the latitude to experiment with a wide range of models.

When we step back, it is hard to believe that this thousand-flowers-bloom approach is the tack taken by the regulator charged with overseeing legal education.  To paraphrase the above passage, it says "do what you want to do, but try a little harder.  When something works well, and most schools adopt it, the Section can implement it as the new rule.  That way we can avoid difficult decisions that will upset our friends."

In truth, the Committee's approach turns the purpose of outcome measures on its head.  In the broader discussion in higher education, outcome measures are sought because they enable an apples-to-apples assessment of the effectiveness of an educational institution.  Indeed, the entire process is meant to facilitate comparisons.  Why? Because meaningful comparative information levels the playing field between those providing education (the schools) and those financing it (the students/citiizens). When outcome information is readily available, it changes behavior and alters powerful norms, including over-reliance on US News.  In the absence of apples-to-apples outcome information, the market adapts as it does now--by focusing on the basis of inputs (revenues, books, number of faculty, LSAT scores, UGPA, etc.).  It is the opaqueness of legal education that creates a vacuum needed for the US News rankings, which are nearly perfectly correlated with student entering credentials.

The Committee shrinks from the task of defining specific, comparable outcomes because it knows (at least implicitly or subconsciously) that the very process of creating meaningful outputs creates a large number of winners and losers among law schools.   Yet, by refusing to act as regulator that serves the public interest, the ABA Section on Legal Education and Admission to the Bar makes law schools the winner and law students the losers. 

If we evaluate outcome measures from the perspective of law students rather than law schools, there are at least three pieces of information that the Section should collect and publish annually in a format that facilitates school-to-school comparisons:

  1. Bar Passage.  Working in conjunction with the Law School Admissions Council (LSAC) and the National Conference of Bar Examiners (NCBE), the Section should construct a database that compares scores on the Multistate Bar Exam after controlling for entering credentials, jurisdiction, and law school attended.  Preliminary evidence suggests large variations--above and beyond entering credentials--in law schools' ability to get their students over the bar exam hurdle. See Henderson Letter to Special Committee (January 30, 2008).  This information is crucial to diversifying the bar because minority students historically have significantly lower bar passage rates. Both educators and students need to know which schools are most effective at erasing this gap.  Principled objections to the bar exam as an outcome (so often voiced by professors) need to be squared with the practical realities faced by students.

  2. Employment Outcomes.  How many graduates are working in non-legal settings?  What are the salary ranges and distributions within legal and non-legal practice settings? Is there any evidence that some schools have better placement records as a result of curricular initiatives?  Remarkably, no one in legal education knows the answers to these questions. Schools should be required to submit a list of the employers and job titles for all of its graduates, and the Section should then code and compile these lists in a way that reveals the full range of outcomes, thus enabling meaningful school-to-school comparisons.  The lists themselves need not be published; the binning process would capture the useful information while also ensuring student anonymity.  There is a high probability that the current ABA coding system (e.g., "academia", "business") contains outcomes that make $120K in legal education look like a bad investment.  The Section should follow up with these graduates to better understand their circumstances, including the decision-making process that the graduates relied upon.

  3. Debt Loads.  Because of the scholarship process used by virtually all law students, tuition is a misleading indicator of law school cost.  Debt is a more accurate measure.  But means and medians are not enough; students need to see full distributions. Specifically, they should have access to a histogram of a school's debt loads at graduation. And not just law school debt, but also total educational debt and consumer debt.

If the Section focused on the above approach, they will not need to develop the thousand-flowers-bloom approach embodied in the Special Committee's Final Report.  In a market will better information, law schools will find and leverage their own competitive advantage in order to survive--and let's be honest, some schools won't.  From a societal perspective that is okay.  The Section on Legal Education and Admission to the Bar needs to wake up to the fact that is is regulator with a fiduciary responsibility to law students, not law schools.

November 12, 2009 in Teaching & Curriculum | Permalink | Comments (2) | TrackBack (0)

Wednesday, November 11, 2009

False Advertising Charge

The North Carolina State Bar has filed a disciplinary complaint charging an attorney with misconduct in the wake of his purchase of a law practice that operated under the trade name of Traffic Ticket Restitution of North Carolina ("TRRNC"). The accused was a member of a two-lawyer firm.

The complaint alleges that he entered into agreements with various attorneys throughout the state on a contract basis and solicited business that referred to the contract lawyers as "local member attorneys." The characterization is alleged to have been false and misleading. The complaint also alleges that the payment arrangement with the contract attorneys was a prohibited fee-splitting agreement.

A second count alleges that the attorney mishandled a traffic case that he had accepted for a $149.00 fee. (Mike Frisch)

November 11, 2009 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Disbarment Rather Than Disability

The South Carolina Supreme Court disbarred an attorney who is presently incarcerated on charges of mortgage fraud. The court concluded that the attorney failed to establish a basis to remain suspended based on a claim of incapacity:

In November 2006, the Court placed Respondent on incapacity inactive status pursuant to Rule 28(b), RLDE, Rule 413, SCACR, after he submitted a letter from his doctor stating he was treating Respondent for bipolar disorder and attention deficit hyperactivity disorder and he felt Respondent was incapable of testifying in a deposition.  Respondent requested two specific attorneys to be appointed as counsel and as guardian ad litem, but both attorneys declined. 

On June 1, 2007, a hearing was held before the Panel on the issue of Respondent’s incapacity.  Respondent appeared by telephone, but after he was informed the proceeding would continue without the appointment of counsel, he terminated the call.  The Panel found that Respondent waived his right to present additional medical evidence regarding his incapacity and that the letter from his doctor simply stating Respondent could not testify was insufficient to show he was unable to assist in his own defense.  Therefore, the Panel ordered ODC to schedule a final hearing on the merits.

Despite receiving notice of the merits hearing, Respondent failed to appear.  ODC presented testimony from four witnesses as well as substantial evidence showing Respondent failed to properly maintain his trust, escrow, and operating accounts.  The Panel recommended that Respondent be disbarred.

Respondent is currently incarcerated as a result of federal mortgage fraud charges, which are unrelated to this disciplinary matter.  After receiving notice that oral arguments before this Court were scheduled, Respondent sought a continuance due to his mental and physical incapacity and requested that the Court appoint counsel.  We denied this request.  This matter has been pending since 2000.  ODC has afforded Respondent more than sufficient time to seek counsel as well as numerous opportunities to submit any medical records showing he is unable to assist in his own defense.  Respondent has repeatedly failed to show any good-faith or genuine effort in asserting his rights or cooperating with ODC.  Accordingly, this matter need not be further delayed.

The bar charges involved misappropriation and related misconduct. The attorney had a record of prior bar discipline. (Mike Frisch)

November 11, 2009 in Bar Discipline & Process | Permalink | Comments (2) | TrackBack (0)

New Ethics Journal Release

The Georgetown Journal of Legal Ethics latest volume (Fall 2009) has just hit the streets. The title of the volume is Symposium: Empirical Research on the Legal Profession: Insights From Theory and Practice. Included is an article co-authored by our own Bill Henderson. We will provide the link as soon as it is on line.

The symposium was held at Georgetown Law in March 2009. Kudos to the authors and student editors for this notable contribution to our understanding of current trends affecting the legal profession. (Mike Frisch)

November 11, 2009 in Conferences & Symposia | Permalink | Comments (0) | TrackBack (0)

The Bear Stearns Acquittals - A Causation Versus Blame View

Posted by Jeff Lipshaw

Images-1 I've given talks now twice in the last two weeks, once to a group of faculty and students at the Brooklyn Law School, and once to the faculty at Suffolk, based on my article The Epistemology of the Financial Crisis.  One of my colleagues just sent me a note with a newspaper quote from one of the jurors who acquitted the Bear Stearns hedge fund managers who seemed to be of two minds (one private and one public?) regarding the future of the investment funds under their management:  "The entire market crashed. You can't blame that on two people." Giving the talks on the paper helped me refocus on what I think is its central thesis, namely that the paradigm of causation in law is blame-seeking, not explanation. As I said in the article about forward-looking regulation:

The overriding theme is that regulation needs to have an epistemological modesty about it, a certain lack of presumptuousness, all of which is belied by disciplines that think that complex causes can be reduced to (a) simple and singular utility functions (rational actor economics), (b) complex functions that can actually model the world's almost infinite contingency (behavioral economics), or (c) an after-the-fact ascription of blame (law). The right answer, I suggest, is that broad policy requires relatively simple models, the necessary downside being there is only so much regulation of a complex world can accomplish. The crisis of epistemology in 1755 was that even after Newton's accomplishments in physical science, an earthquake still destroyed Lisbon, and the crisis of epistemology in 2009 is that all the algorithms in the world are not going to stop financial bubbles. The problem is endemic to all forward-looking judgments. Nobody knows until after the fact whether the entrepreneur is a peerless visionary or a self-deluded wacko, any more than I really know until after the fact that today is the day I should jump ship from the public securities markets because today they became a bubble.

My response to my colleague this morning was that I had a similar take on what had happened in the Bear Stearns trial. The jurors understood intuitively the distinctions between causation as scientists and ordinary people consider it, and blame (as causation) as lawyers consider it.  And the seeming inconsistencies of the managers loving and hating the market are precisely the uncertainties we all live with looking forward rather than backward. 

Larry Ribstein suggests this is a problem with the application of the criminal law to business; I think it's something slightly different, particularly as a number of us try to construct an approach to teaching students what they need to know in order to practice law in transactions versus law in litigation.  The profession is vested in the job of blame-finding and it's something of a rigged game.  That is, a common justification for the presence of transaction lawyers is to anticipate the blame-finding that they can expect their sibling professionals to be undertaking once the deal is done.  This is always a tricky position for me to take and defend, because the immediate response is that I'm suggesting quietism or passivity in the face of wrongdoing.  No.  It's that there's more of a "shit happens" world out there than our teleological (purpose-inferring or end-inferring) instincts would like to admit, and the line between misfortune and injustice (as my friend Linda Meyer puts it) doesn't map very well against the line drawn by FRCP 11 or its equivalents on meritorious legal allegations.

November 11, 2009 in Current Affairs, Law & Business, Law & Society | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 10, 2009

Suspension En Masse

The New York Appellate Division for the First Judicial Department has issued an order suspending a significant number of attorneys (listed at the conclusion of the order) for failure to file the required biennial registration statement and to pay the required dues. The court notes:

The attorneys in question have been duly notified of their noncompliance and given an opportunity to cure their default. The Office of Court Administration mailed each of the defaulting attorneys a biennial registration form to their last known home address, a second notice to their last known business address, and a final notice to their home address. Attorneys who remained in default following these three notices were referred to the Disciplinary Committee. On October 31, 2008, this Court published notice in the New York Law Journal that the Disciplinary Committee would institute an omnibus disciplinary proceeding seeking immediate suspension from the practice of law against those attorneys who did not cure their default by November 24, 2008. Thereafter, a list of approximately 1158 attorneys who failed to submit satisfactory proof of registration and payment of fees was forwarded to the Committee. The Committee then filed its motion for service by publication of the notice of petition to suspend.

Pursuant to the order of this Court entered April 16, 2009, which provided for service of the petition to suspend by publication in the New York Law Journal for five consecutive days, a list of the defaulting attorneys along with their last known business addresses was so published commencing May 20, 2009. A notice was also posted on the Court's website. The order further provided that attorneys on the default list who failed to register and pay all outstanding fees, or provide proof of prior registration and payment of such fees, within thirty (30) days of the last date of the published notice, as required by the order, would be subject to a further order of the Court immediately suspending them from the practice of law in the State of New York.

(Mike Frisch)

November 10, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Liu and Michelson Complete Latest Survey on Chinese Legal Profession

Posted by Alan Childress

Sida Liu (Wisconsin-Madison [sociology]) and Ethan Michelson (Indiana-Bloomington [sociology and recently affiliated with the Maurer School of Law program in global legal professions, which also sports our coblogguist Bill Henderson]) have completed an exhaustive nine-year follow-up to Ethan's 2000 survey of the legal profession in China.  Results of the newest study are linked here.  Ethan reports, "Our preliminary findings clearly suggest that 'the more things change the more they stay the same.' ”  The report is in English and also Mandarin, entitled 关于中国法律服务工作环境的问卷调查.

November 10, 2009 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Fee Dispute Appeal Oral Argument

The District of Columbia Court of Appeals will hear oral arguments this Friday (November 13th) in a case described in a June 2008 report reprinted below from

In March, a D.C. Superior Court judge awarded Douglas Rosenthal, a former Sonnenschein Nath & Rosenthal antitrust partner, only part of the compensation he claimed was owed to him by the firm.  Now, nearly three months later, Judge Melvin Wright has whittled down that award from more than $3 million to $65,639.

Rosenthal (who is not related to the Rosenthal in the firm's name) sued his ex-employer for $8.5 million, claiming he had not been fairly compensated for representing the families of those killed in the 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland. That contingency work generated nearly $17 million for Sonnenschein. Rosenthal also claimed he was owed origination credit for Sonnenschein's representation of Sun Microsystems against Microsoft Corp. That work produced $20 million in fees for the firm.

After a 2 1/2-week jury trial, Judge Wright entered judgment in favor of Rosenthal on March 28 to the tune of $3.73 million. However, Sonnenschein was also awarded $300,000 in its counterclaim against Rosenthal and his new firm, Constantine Cannon. Sonnenschein filed that claim because it said Rosenthal and Constantine had interfered with clients when Rosenthal left in 2005.

Sonnenschein filed a motion on April 10 arguing that Wright had not properly adjusted the jury's $3.73 million award. Sonnenschein said the court agreed that it would subtract the amounts that Rosenthal actually earned during the years in question from the amounts the jury determined he should have been compensated. According to Sonnenschein's motion, after that calculation, the damages award becomes $365,639. After also subtracting the $300,000 for Sonnenschein's counterclaim, judgment for Rosenthal is reduced to $65,639. Last Thursday, Wright granted the motion to decrease the damages award to that amount.

One of Rosenthal's lawyers, Constantine Cannon partner Gary Malone, says he believes the judge "erred" and plans to appeal the decision within the next month. Rosenthal is also represented by Constantine partner Robert Begleiter. Michele Roberts, a partner at Akin Gump Straus Hauer & Feld, and James Hamilton, a partner at Bingham McCutchen, represent Sonnenschein.

First reported in The BLT: The Blog of Legal Times

The oral argument may be heard in real time by access through following link. Click on the link highlighted in yellow to hear the agrument. (Mike Frisch)

November 10, 2009 in Law Firms | Permalink | Comments (0) | TrackBack (0)

Interim Suspension Of Medical License Upheld

The Vermont Supreme Court rejected contentions of a medical doctor that his license to practice had been improperly suspended by the Medical Practice Board while charges of unprofessional conduct are adjudicated. The allegations:

On March 31, 2009, the State moved to summarily suspend [the doctor's] medical license based on a simultaneously-filed specification of charges containing fifty-five counts of alleged unprofessional conduct, a State investigator’s affidavit, and an exhibit consisting of [the doctor's] 2004 “letter of assurance” to the Board.  Based on a review of the medical records of ten patients, pharmacy records, and several interviews, the State alleged, in summary, that [the doctor] had repeatedly abused his authority by prescribing excessive quantities of powerful narcotics for patients without noting and copying the prescriptions in patients’ charts, conducting adequate medical histories and examinations, documenting the physical symptoms and medical bases for the prescriptions, considering indications of drug dependency and adverse side effects from the large quantities of narcotics prescribed, or accounting for the risk of drug abuse and diversion, all in violation of acceptable standards of professional conduct. 

 In addition, the charges alleged that [the doctor] had altered patients’ charts, failed to produce medical records requested by the Board, made material misrepresentations to the Board, and violated numerous provisions of an earlier letter of assurance to the Board.  The letter was the product of a State investigation, dating from 2000, into pharmacist reports concerning [his]prescriptions of large quantities of narcotics.  The investigation remained open, and in 2004 resulted in a detailed letter of assurance from [him] agreeing to several conditions, including promises to consult regularly with a New Hampshire-based anesthesiologist concerning the use of narcotics to treat pain; to accept no new patients likely to require treatment for chronic pain; to prescribe no Schedule II drugs for periods longer than fourteen days; to scrupulously maintain patient charts, documenting their diagnosis, condition, and the rationale for prescribing controlled substances; to retain copies of all prescriptions for Schedule II drugs; to require all patients being treated for chronic pain to enter into written agreements governing their receipt and use of prescriptions for controlled substances; and to promptly comply with all Board requests for records.

The court found that the preponderance of evidence standard did not violate the doctor's rights. (Mike Frisch)

November 10, 2009 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Reprimand For Embezzling Probate Judge

The South Carolina Supreme Court has reprimanded a former probate court judge basded on the following findings of fact:

On or between April 19, 2007, and December 21, 2007, respondent embezzled public funds while working as a Newberry County Associate Probate Judge.  In mitigation, respondent submits that she took the money to pay for medical expenses and to pay deposits needed for surgery and medical testing.  Further, respondent submits that, at the time she took the money, she hoped to repay the funds at a later time. When confronted by agents from the South Carolina State Law Enforcement Division (SLED), respondent confessed and accepted responsibility for her actions. 

On April 28, 2008, respondent was arrested and charged with embezzlement of public funds over $1,000.00.  Respondent entered Pre-Trial Intervention (PTI) and, as a condition of PTI, made full restitution.  Respondent has successfully completed PTI and her criminal record has been expunged. 

The court's order contains the following condition:

Respondent shall not apply for, seek, or accept any judicial position whatsoever in this State without the prior express written authorization of this Court after due service on ODC of any petition seeking the Court’s authorization. 

This was a consent disposition. (Mike Frisch)

November 10, 2009 in Judicial Ethics and the Courts | Permalink | Comments (1) | TrackBack (0)