November 21, 2009
Fieger In Arizona
Geoffrey Fieger was admitted on examination in Arizona in 1980. He also is admitted in Michigan (where he principally practices) and Florida. He was administratively suspended in 1993 for failure to complete Arizona CLE obligations. There are no such requirements in Michigan. He inquired in 1996 about curing the suspension and was told that he need only pay fees and take courses. When he later proceeded to take these steps, he was advised that he must take and pass the bar exam. He proceeded to file a petition for reinstatement.
A Hearing Officer has issued a report in which he recommends that the exam requirement be waived. The hearing officer notes that Fieger has been a competent and able attorney with a national practice for almost 30 years. The civil litigation against him was dismissed in the main and the discipline imposed in Michigan did "not call into question [his] fitness and/or competence to practice law." (Mike Frisch)
Bait-And-Switch Tactics Merit Suspension
The Illinois Review Board has recommended a five-month suspension in a matter involving an attorney who handled real estate closings. The attorney had failed to disclose his financial interests in survey and title companies used in the transactions. He had widely advertised for business and the bar matters involved the complaints of four unhappy clients, who had paid more than they thought they were going to. At the hearing, the Administrator presented the testimony of a real-estate expert, who stated that disclosure was required and that the attorney's reputation was "uniformly poor."
The Hearing Board had found misconduct but rejected false advertising charges. The review board disagreed:
Unlike the Hearing Board, we conclude that the Respondent's advertisements were textbook examples of false or misleading advertising. The Respondent promised a low fixed legal fee for closing services but did not honor that promise. The advertisement received by Thomas Britain offered "Complete Start to Finish Closing Services at One Affordable Low Fee Including Buyer/Seller negotiations thru closing, Contract Review, Survey Order, Title Order and Review, Complete Document Preparation, Schedule and attend closing as your legal representative." The only reasonable interpretation of this statement is that the listed services were included in the Respondent's "one affordable low fee." The Respondent, however, charged Britain extra for title review and preparation of a power of attorney.
The Respondent contends that some of the listed services were included in his legal fee, while others were not. The advertisement does not support the Respondent's interpretation. There is absolutely nothing on the face of the advertisement that would alert clients to the fact some of the listed services were not included in the "one affordable low fee" or differentiate between the services that were included and those that were not. In an effort to generate business, the Respondent's advertisement materially misrepresented the amount of his fee and omitted facts that would be necessary for a client to ascertain what services were included in the Respondent's legal fee.
The advertisements received by John Gedwill and Douglas Conway were similarly misleading. Both advertised a low legal fee and listed numerous services related to real estate closings that the Respondent's firm purportedly did for a "fixed legal fee" that was "considerably less" than other law firms. A reasonable person reading these advertisements would be led to believe that the legal fee included the listed services. The advertisements did not inform Gedwill or Conway that the low legal fee did not include title review or preparation of a power of attorney and that they would be charged additional fees for those services. For these reasons, the advertisements sent to Gedwill and Conway violated Rule 7.1 as well.
The Hearing Board's finding that the Respondent and his clients had meaningful discussions about his fees does not remedy the false and misleading nature of the advertisements. Any subsequent communications do not alter the fact that the Respondent used improper advertisements to attract business that otherwise may have gone to another attorney. The Rules of Professional Conduct do not allow such "bait and switch" practices.
The review board found that an aggravating factor was that, as a result, the clients were more distrustful of the legal profession. (Mike Frisch)
November 20, 2009
Fairness Not An Unconstitutional Burden
The Alaska Supreme Court has held that a suit against a law firm based on allegations of improper activities in pursuing debt-collection litigation on behalf of a client should not have been dismissed:
Robin Pepper sued an Anchorage debt collection agency and its lawyers, claiming that they violated Alaska’s Unfair Trade Practices and Consumer Protection Act (UTPA) when they: (1) sued Pepper in state district court without first sending a written demand, (2) misrepresented to the court that Pepper was competent, and (3) applied for default judgment without first informing Pepper’s attorney. The superior court granted the defendants’ motion to dismiss for failure to state a claim, reasoning that the Noerr-Pennington doctrine required the court to strictly construe the UTPA to avoid burdening conduct protected by the petition clauses of the United States and Alaska Constitutions. Because we conclude that it would not unconstitutionally burden the defendants’ petitioning activities to require them to litigate debt collection claims in a fair manner, we reverse the dismissal of Pepper’s complaint.
Too Late To Sue The Lawyer
The Arkansas Supreme Court affirmed a circuit court order dismissing a legal malpractice suit on statute of limitations grounds. The client retained the lawyer to advise her concerning a prenuptial agreement, which she executed on May 16, 2003. The litigation that led to her June 2007 divorce, the prenup was determined to the valid and enforceable. She filed suit on May 15, 2008 and contended that the five year statute of limitations for contract claims applied rather than the three-year limitation for malpractice.
The court concluded that the claims sounded in malpractice and that the shorter limitations period applied. (Mike Frisch)
Balance Of Interests Favors Access To Documents
The Iowa Supreme Court has affirmed a district court decision to grant a motion to intervene and access to discovery in a case in which Canadian plaintiffs sought documents and data produced by Microsoft in the state court litigation. The court engaged in an extensive discussion of the balancing of interests and concludes:
Microsoft's important interest in confidentiality of the documents and data is preserved because the Canadian plaintiffs are bound by the terms of the [trial court's] protective order.
Thy Partner's Keeper
The New York Appellate Division for the First Judicial Department rejected the Departmental Disciplinary Committee's call for a six-month suspension and imposed a public censure in a matter in which a law partner discovered and reported misappropriations committed by his law partner. The lawyer had stipulated to three counts of misconduct that acknowledged unintentional misappropriation and failure to review escrow account records. The court lays out the facts and its reasoning as to sanction:
Partner Cherry's conversion occurred over a relatively short period of six months (approximately September 2005 - February 2006), and respondent purportedly wrote only six checks, all of which were for legitimate obligations. When respondent wrote those checks, he was unaware the payments were improper. Moreover, respondent was charged and admitted his liability for his failure to oversee the account.
Furthermore, we disagree with the Committee's assertion that respondent's "willful ignorance [of the conversion] is clearly unjustifiable in a two-person law firm" and thus warrants more than a public censure. In Matter of Glatman (47 AD3d 230, 232 ) the court found censure appropriate when misappropriation of funds was "the result of either inadvertence or poor accounting practices, as opposed to an intent to steal funds". In Matter of Cardoso (152 AD2d 157 ) an attorney in a two person law firm was censured for one act of unintentional "conversion" of funds by properly disbursing funds when, unbeknownst to him the account was at a deficit, and for his law partner's commingling and intentional conversion of approximately $31,000. In addition, the respondent in Cardoso, like respondent herein, left all handling of the escrow account to his partner, and once aware of the acts, dissolved the partnership and notified the Grievance Committee of his partner's defalcations (see also Matter of Linn, 200 AD2d 4 ; Matter of Falanga, 180 AD2d 83 ).
Finally, the Committee's reliance on Matter of Latimore (252 AD2d 217 , lv dismissed 93 NY2d 995 ) is misplaced. In Latimore, this Court suspended the attorney for one year for presigning several blank escrow checks requiring her signature and that of another attorney, thereby enabling her co-fiduciary to convert escrow funds. She failed to oversee the escrow account and failed to supervise salespeople working under her real estate broker's license who engaged in fraudulent practices. Additionally, she personally engaged in misleading practices in her brokerage and had received two prior letters of admonition.
Here, except for respondent's withdrawal of approximately $12,000 of his own funds, respondent's misconduct was that of omission and not affirmative actions like that in Latimore. Furthermore, respondent has an unblemished 28-year career with a history of public service, has shown remorse, has cooperated fully with all governmental authorities, and has accepted full responsibility for his misconduct and stipulated to the charges. Respondent's conduct here fits squarely within the cases in which public censure is imposed.
November 19, 2009
Agreed Suspension Rejected In Favor Of Censure
An Arizona hearing officer has rejected as "too severe" proposed stipulated discipline of a suspension for six months and one day and recommended public censure and probation in a disciplinary matter involving two charges. One of the matters involved a trust account overdraft caused by bank error. The error apparently involved a wire transfer fraud on the account. The lawyer self-reported the problem to the State Bar.
The second matter related to the attorney's dealings with a client involved in marijuana distribution. The lawyer was advising the client and getting client referrals in drug cases. His involvement led to a guilty plea to an "undesignated" felony of facilitation of money laundering in the second degree. The matter was designated as a misdemeanor after the unsupervised probation was terminated without incident.
The hearing officer relied on a number of favorable letters, including one from a federal magistrate and another from a retired judge. The bar proceedings involved matters that had taken place five years ago. The attorney had been subject to adverse publicity and significant expense in defending the criminal case (it is noted that he had twice rejected offers of diversion in the criminal matter on advice of counsel. In sum, the hearing officer appears to have strongly believed that the lawyer had suffered enough for his misconduct and is no threat to the public. (Mike Frisch)
SuperLawyer Law School Rankings - Balloon Boy Redux
Posted by Jeff Lipshaw
Or something like that. To pile on top of what Alan has to say, what I mean to say is the seeking of publicity for the sake of publicity. And I say that as somebody who was a Super Lawyer in Indiana back in 2004 or so. For whatever the hell that's worth (see certificate suitable for framing below). Just make a ranking (or pull off a hoax) and get your fifteen minutes.
Geez, another magazine wants to get in on the rankings game by measuring schools by how many Super Lawyers went to the school. Yes, as Brian Leiter and others point out, it has most to do with size. There's another problem (or bias). Super Lawyers are overwhelmingly lawyers in the private sector, practicing in law firms, the primary reason for which is that if you are named a Super Lawyer, you have the opportunity, provided to you by the publisher, to purchase advertising space in the magazine! Something which of course is of little use to judges, academics, government lawyers, in-house lawyers, and people with law degrees who don't practice law. (For the record, there is a category for in-house lawyers, and that was mine. I was one of four in-house lawyers, of the bazillion lawyers in Indiana so honored, and no doubt because one of the lawyers at one of the big firms to whom we referred multi-hundreds of thousands of dollars of work nominated me. That's not to say she didn't admire my skills and my charming personality, but somehow I don't think she would have nominated me on stellar reputation alone. The point is somebody had to go out of her way even to get an in-house person nominated.)
Not that I feel sorry for Yale (or Stanford, my poorly ranked alma mater) but if you put a disproportionate number of your graduates into non-private practice pursuits, you are going to get dinged.
Oh, and by the way, my current employer, the Suffolk University Law School, ranked 33.
Rankings Ridiculousness Reaches a New High/Low
Posted by Alan Childress
Rating law schools by the number of "SuperLawyers" as alum is not a ranking of any kind. It is flat wrong for anyone to treat this seriously. It is a publicity stunt by a commercial enterprise. Surely law school deans will have the good sense and ethical mettle to ignore this charade.
Well, no. In addition to actually addressing the "ranking," the dean at Northwestern has gone so far as to rewrite its [non]methodology to suit his school's purported image, combining it with the top 14 by USNews and adjusting for class size. Story here, with a twist: the writer's editorial view that essentially all's fair in war and rankings. Well, no -- again.
As John Steele has written on several occasions, how can we teach ethics to law students if we are not acting ethically as regards to ratings and reputation? Actually he said it better: "I think that law schools are teaching by example that cooking the books is what lawyers do."
Update: combining the top 50 of USNews with the metric of number of alum over age 45 who have attended at least two Jazzfests, Tulane is the #1 law school in the country!
Update 2: Brian Leiter on the specious methodology used by SuperLawyers Inc.
Update 3: Jeff Lipshaw on the hoax here.
Update 4: our prior post on Attorney Man and lawyer portrayals in comics.
Florida Adopts New Computer-Access Advertising Rule
The Florida Supreme Court, in response to a petition from the Florida Bar, has withdrawn its earlier opinion on proposed amendments to rules regulating computer-accessed attorney advertising and adopted a version of the Bar's proposed amendments. The new Rule is appended to the court's opinion.
In a separate order, the court adopted extensive amendments to its rules regulating the practice of law. (Mike Frisch)
Reconsideration Denied In Bar Admission Matter Involving Unpaid Student Loans
An applicant for admission to the New York Bar sought an order vacating the denial or reargument. The Appellate Division for the Third Judicial Department denied the relief, concluding that the procedures regulating the admissions process were satisfied and that the (anonymous) applicant had not established the character and general fitness for admission.
This appears to involve an application that we had previously discussed, where the applicant had accumulated student loans since 1983 and now owes approximately $480,000, including interest: "His recalcitrance in dealing with the lenders has been and continues to be incompatible with a lawyer's duties and responsibilities as a member of the Bar." (Mike Frisch)
Is Law a Serious Discipline? And Who Are You Calling an Ignoramus?
Posted by Jeff Lipshaw
I'm sitting in the University of Michigan Law Library (by courtesy!) reading a delightful and irreverent essay on Anglo-American common law as a discipline by Peter Goodrich at Cardozo. Here's the abstract of Intellection and Indiscipline (Journal of Law & Society):
A discipline will usually become the object of study and its relationship to other disciplines a moment of concern when its borders are precarious and its definition in dispute. Law, ‘the oldest social science’, is arguably both prior to discipline — it emerges initially and most forcefully as a practice — and without discipline, its object being potentially all human behaviour. If law is necessarily between and among disciplines, both prone to moonlighting and everywhere homeless, it will also always be in some mode of scholarly crisis. Certain conclusions follow. Law is paradoxically dependent upon other disciplines for its access to the domains that it regulates. The greater its epistemic dependency, however, the slighter its political acknowledgment of that subordination. Which allows a positive thesis: the epistemic drift of law can carry the discipline to a frank acknowledgment of the value of indiscipline both to novelty and intellection.And here's a jewel of arcane knowledge (not the most serious point of the essay): As Professor Goodrich notes, "The Prince or principal reformer resorted to by the scholars and humanists amongst the common lawyers was Petrus Ramus, the neo-scholastic French exponent of dialectical method as the means to schematize and so systematize any discipline whatsoever. It was Ramist logic that inspired the reform of legal method from Fraunce to Finch." The word "ignoramus" comes from the eponymous protagonist of a satirical play by George Ruggles in 1615, Ignoramus being a pathetic English lawyer who is ignorant of Ramus.
November 19, 2009 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (1) | TrackBack
Dissent in West Virginia Court Email Disclosure Case
Justice Workman has posted his dissent in the recent case before the West Virginia Supreme Court in which the majority had restricted public access to emails from another justice to the litigant in the Caperton v. Massey case:
I agree with the majority's conclusions to this extent:(1) A trial court may conduct an in camera review of records subject to a request under West Virginia's Freedom of Information Act, West Virginia Code §§ 29B-1-1 to -7 (2007 & Supp. 2009) (“FOIA”).
(2) E-mails are “writings” subject to disclosure under FOIA, and FOIA may be used to obtain nonexempt “public records” of the judicial branch.
(3) A personal e-mail communication by a public official or public employee, which does not relate to the conduct of the public's business, is not a public record. (However, as more fully set forth herein, I do not agree with the majority's conclusion that the messages at issue in this case do not relate to the conduct of the public's business.)
(4) Campaign-related e-mails are not per se subject to disclosure.
But while the lower court released the five campaign-related e-mails (albeit for the wrong reason, i.e. that they were public records because they related to campaign activity), and the majority has held that none of the thirteen e-mails were public records, I would hold that all thirteen e-mails at issue should be considered “public records,” because they contain information relating to the conduct of the public's business, based on the context in which they were written. They reflect that there was an ongoing personal relationship between a sitting Supreme Court Justice and the chief corporate officer of a litigant in a major case at a time when the Justice was participating in that case. John Q. Citizen is entitled to have that information and to accord to it whatever weight and meaning he deems appropriate.
Accordingly, I must respectfully dissent from the majority's conclusion that a determination of whether an e-mail communication is a public record subject to FOIA disclosure is restricted to an analysis of the content of the writing and that such analysis cannot be context-driven. Further, I disagree with the majority's conclusion that the e-mails which are the subject of this case were strictly personal and therefore exempt from public disclosure. While it is accurate that the substance of the messages was primarily personal in nature, it is that very fact, when viewed in the context of the juxtaposition of Justice Maynard's position as a Supreme Court Justice with his participation in the then-pending litigation involving Mr. Blankenship's companies, which makes them relevant to the conduct of the public's business. The fact that a judicial officer is a close personal associate of a litigant whose case he is hearing is relevant public information. (footnotes omitted)
Neglect + Contempt = Suspension
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio today suspended the license of [a] Cleveland attorney...for one year, with the last six months of that term stayed on conditions, based on [his] repeated failures to comply with bankruptcy court filing requirements, failure to appear before the court to face contempt proceedings and failure to promptly comply with two court orders directing him to disgorge (give back) legal fees he had received from clients whose cases he mishandled. [The attorney] was cited for civil contempt and fined by the bankruptcy court for his failures to appear and disgorge fees.
The Court adopted findings by the Board of Commissioners on Grievances & Discipline that [his] acts and omissions were in violation of the state attorney discipline rule that prohibits conduct that reflects adversely on an attorney’s fitness to practice.
The Court’s per curiam opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor, Judith Ann Lanzinger and Robert R. Cupp.
Justice Terrence O’Donnell concurred with imposition of a one-year suspension, but indicated that he would stay all 12 months on conditions.
The opinion is linked here. (Mike Frisch)
Same-Sex Health Care Benefits UpheldThe New York Court of Appeals has affirmed the dismissal of claims brought by taxpayers that had challenged directives that had recognized the provision of public employee health insurance benefits to same-sex couples married in other states and Canada: "the legislative history supports the view that the President of the Civil Service Commission was deliberately given broad discretion to define who will qualify for coverage." (Mike Frisch)
Fee Issue Remand
The District of Columbia Court of Appeals affirmed the grant of summary judgment to a lawyer in a legal malpractice case brought pro se by the former client. The lawyer had been retained to pursue an employment discrimination claim. The case was dismissed when he failed to respond to the employer's motion for summary judgment.
The client then sued for maplractice but was unable to designate an expert witness on the standard of care. The trial court concluded that the client could not establish that the lawyer's negligence had lost the case (the client had testified in deposition that, among other things, he had "threatened to pour hot oil on one of his subordinate employees" and called another a "stupid little girl").
The court here remanded on a contract claim to consider damages for the lawyer's failure to do the work for which he had been paid. The court also noted that the attorney had been subject to a private admonition with terms in Virginia and sent that matter to Bar Counsel to consider reciprocal discipline. (Mike Frisch)
November 18, 2009
One Claim Survives
The New York Appellate Division for the First Judicial Department dismissed a legal malpractice action with prejudice but concluded that a contract claim against the law firm was adequately pleaded. The facts as to the malpractice claim:
Plaintiff alleged that it retained defendant law firm to bring an action against an insurance company. After several years of litigation, plaintiff agreed to settle the matter for $750,000, which was less than the $1.3 million claimed value of the lawsuit. Several years after the settlement, the law firm informed plaintiff that Brian Valery, who had held himself out as an attorney and worked on plaintiff's case, was in fact not licensed to practice law. Plaintiff then brought this action, alleging it would have obtained a more favorable result in the insurance litigation if the firm had exercised more care with regard to Valery's employment. The complaint sought damages for the difference between the purported $1.3 million value of plaintiff's insurance claim and the $750,000 settlement amount, as well as all of the legal fees billed by the law firm for the entire matter.
Allegations in support of a claim of legal malpractice must at least "permit the inference that, but for defendants' [alleged negligence], plaintiff would not have sustained actual, ascertainable damages." Since plaintiff failed to allege facts that "sufficiently demonstrate a causal relationship between purported conduct on the part of defendants and damages suffered by plaintiff," the malpractice claim is dismissed. The dismissal is with prejudice, since repleading would be barred by the statute of limitations. (citations omitted)
As to the other claims:
That part of the breach of contract cause of action alleging a breach of professional standards and seeking damages for the alleged shortfall from the settlement and all of plaintiff's legal fees is dismissed as duplicative of the malpractice claim. However, to the extent that plaintiff's breach of contract claim rests on the fees it paid for Valery's services, plaintiff has pleaded sufficient facts to state a claim. The complaint alleges that the law firm continuously held out Valery as a licensed attorney and billed in excess of $70,000 for his services, even though it is undisputed that he was, in fact, not an attorney. At this early stage of the proceedings, it cannot be said that these particular damages are too speculative.
Plaintiff should not be permitted to replead its unfair business practice cause of action to assert a claim under General Business Law § 349 because it cannot show that defendants, by employing Valery, engaged in acts or practices having a broad impact on consumers at large.
California Ethics Provisions "Moving Along"
From the web page of the California State Bar:
After nine years of work by its Rules Revision Commission, the State Bar Board of Governors has approved 35 revisions of the California Rules of Professional Conduct on issues ranging from lawyers as third-party neutrals and fees to communication with a represented person and competence. For easier reference, the numbering of all the new rules are changed to conform to the numbering system and subject area of the ABA Model Rules of Professional Conduct. At its November meeting, the Board of Governors approved rule revisions that:
- Require an attorney serving as a third-party neutral to explain the difference between an advocate and third-party neutral to someone unlikely to be aware of the distinction. (Rule 2.4)
- Retain California's current standard prohibiting, for disciplinary purposes, an "unconscionable fee." The commission had been considering adopting the ABA's standard that prohibits an "unreasonable fee." (Rule 1.5)
- Follow the ABA Model Rule that expands ex parte communication to include all represented "persons." The current rule applies only to a represented "party." (Rule 4.2)
- State that a lawyer shall not intentionally, recklessly or repeatedly fail to perform legal services with competence. The rule defines competence in any legal service as applying the diligence, learning, skill and mental, emotional and physical ability reasonably necessary for the performance of such service. (Rule 1.1)
Proposed rules dealing with sex with a client and conflicts of interest were referred back to the commission for further work. Proposed rules on reporting the egregious behavior of another attorney and business transactions and adverse interests were tabled until the January meeting for further discussion.
The work is now moving along," said State Bar President Howard Miller, "and the timetable on the rules revision calls for completion of the redrafting and renumbering during the summer of 2010 and then submitting the rules to the California Supreme Court, which has final authority for their adoption."
Weight, Not Admissibility
The North Dakota Supreme Court has held that allegations that a psychiatrist who testified as an expert witness violated ethical precepts went to the weight, rather than the admissibility, of the evidence. The testimony was offered in a proceeding that involved the possible release of a sexually dangerous individual. The court concluded:
The district court did not determine whether Dr. Coombs violated the American Psychological Association's Ethical Principles of Psychologists and Code of Conduct, and we will not decide this issue for the first instance on appeal. Whether Dr. Coombs violated the ethical rules of his profession regarding conflicts of interest has no bearing on the admissibility of his testimony. Rather, infirmity in a psychologist's testimony affects the weight given his opinion, but not its admissibility.
The contention was the the psychiatrist had a conflict of interest as a result of his role as both treating doctor and expert witness. (Mike Frisch)
Suspension For Abandoning Jailed Client
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio today indefinitely suspended the license of [an] attorney...for abandoning the case of an incarcerated client he was appointed to represent in a postconviction appeal, then failing to respond to inquiries or otherwise cooperate with disciplinary authorities during the investigation of his misconduct.
The Court adopted findings by the Board of Commissioners on Grievances & Discipline that [his] neglect of his client violated multiple provisions of the Rules of Professional Conduct including the disciplinary rules that require attorneys to act diligently in representing a client and comply with a client’s reasonable requests for information about his case, and that prohibit conduct prejudicial to the administration of justice and conduct that reflects adversely on an attorney’s fitness to practice.
The Court also agreed with the board’s finding that [his] failure to respond to multiple written and in-person communications initiated by the Office of Disciplinary Counsel, or to comply with a subpoena ordering him to appear before disciplinary authorities, violated the state bar governance rule requiring attorneys to cooperate with all disciplinary proceedings.
The opinion is linked here. (Mike Frisch)