November 18, 2009
The Path To Immediate Disbarment
The header from a decision issued today by the Maryland Court of Appeals:
Immediate disbarment was required to protect the public from a respondent who (1) misappropriated clients' funds, (2) performed no services whatsoever on clients' behalf, (3) lied to clients about the status of their case, and (4) provided clients with a falsified administrative agency "Decision" that had not been issued by the agency.
Sounds right to me. (Mike Frisch)
Multiple Failures Raise Fitness To Practice Issue
An attorney failed to attend four scheduled bankruptcy hearings. As a result, the matters were dismissed. The attorney then failed to attend the ensuring sanctions hearing. As a result, fines were imposed and the attorney was barred from practice before the tribunal. The attorney ignored the sanctions and failed to pay the fines.
Disciplinary charges were brought. The attorney failed to participate and thus defaulted on the charges. A Louisiana hearing committee found the misconduct and has recommended a suspension for a year and a day. If the recommendation is followed, the attorney will be required to petition for reinstatement. (Mike Frisch)
November 17, 2009
Everything You Wanted To Know About Bar Admission But Were Afraid To Ask
I moderated a one-hour discussion about the bar admission process on November 11 at Georgetown Law. The one-hour session addressed character and fitness issues and strategies for passing the bar exam. Four recent graduates discuss their experiences and provide insights that may be of interest to law students who are interested in the admissions process.
The video of the session is linked here. Thanks to the panelists Kevin Scott, Ron Cluett, Maeve McKean (all Georgetown grads) and Adrienne Biddings (University of Florida College of Law and currently a fellow in Georgetown's Institute for Public Representation) for their valuable participation in this discussion. (Mike Frisch)
Charity Does Not Begin On the Bench
A new judicial ethics opinion from Oklahoma:
Question(s): May a judge who is president of a not for profit charitable corporation sign an application for a funding grant if done so in the capacity as president of the organization and does not identify such party as a judge?
Discussion: Canon 4 of the Oklahoma Code of Judicial Conduct contains the following provisions which apply to the question proposed: Canon 4 C. (3) "A judge may serve as an officer, director, trustee, or non-legal advisor of an organization or governmental agency devoted to the improvement of the law, the legal system or the administration of justice, or of an educational, religious, charitable, fraternal or civic organization not conducted for profit, subject to the following limitations and other provisions of the code,"
"(b) A judge as an officer, director, or non-legal advisor, or as a member or otherwise:
(1) May assist such an organization in planning fund-raising and may participate in the management and investment of the organizations funds, but shall not personally participate in the solicitation of funds or other fund-raising activities;"
Clearly, signing an application for a fund-raising grant is prohibited, the code makes no distinction as to whether the signator is or is not identified on the application as a judge.
Verdict First, Trial Later (Or Not At All)
The New York State Commission on Judicial Conduct has admonished a town cout justice for "serious administrative errors" in eleven traffic cases. IN three of the matters, he failed to advise defendants who had entered not guilty pleas of their trial dates and imposed fines without a trial or guilty plea. He sent notices in two cases to defendant demanding payment of already paid fines. Six times he notified the Commissioner of Motor Vehicles to suspend licenses although the fines had been paid or the charges dismissed.
At least two of the defendants retained counsel as a result, one paid the fine twice, and all "had to contact the court to resolve the error in order to avoid further adverse consequences." The judge had been censured in 1997 "for using his judicial prestige to assist a defendant who was awaiting sentencing in another court." (Mike Frisch)
Gag Order Violation Leads To Suspension
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio today suspended the license of [a] Greenville attorney...for six months for deliberately violating a court order and then misrepresenting to the court his responsibility for that misconduct.
The Court adopted findings by the Board of Commissioners on Grievances & Discipline that[the attorney], while serving as appointed defense counsel in a case involving a child accused of setting a fire that killed five people, violated a “gag” order imposed by the trial court by having a member of his office staff deliver a copy of a motion he had filed in the case to the Darke County Daily Advocate newspaper. At a subsequent hearing after the newspaper published a story based on the “leaked” document, [the attorney] made misleading statements to the court indicating that he may have been responsible for a “misunderstanding” that resulted in his staff’s disclosure of the motion, but that he had not deliberately instructed his staff to violate the gag order.
The court agreed with the board’s findings that [his] conduct violated the state attorney discipline rules that prohibit knowingly making a false statement to a tribunal, knowingly disobeying a rule or order of a court, engaging in conduct that reflects adversely on an attorney’s fitness to practice law, engaging in conduct prejudicial to the administration of justice, and engaging in conduct that involves fraud, deceit, dishonesty or misrepresentation.
While the disciplinary board recommended that [his] license be suspended for six months with the full term stayed on conditions, the Court voted 7-0 that Rohrer’s deliberate false statements to the court and other aggravating factors in the case merited an actual six-month suspension from practice.
The court found that the attorney had engaged in a pattern of misconduct and (contrary to the board) had acted with a selfish and dishonest motive. The court noted:
Deliberately disbobeying a court order, then lying about it to the judge during a court hearing on the matter, is not justified by an otherwise commendable desire to protect a client and engage in zealous advocacy. There were legitimate ways for respondent to protect his client; this conduct was not among them.
The court's opinion is linked here. (Mike Frisch)
November 16, 2009
Suspension Proposed For Prosecutor Who Defended
The Louisiana Attorney Disciplinary Board has recommended a suspension for a year and a day for misconduct involving a lawyer's representing criminal defendants in Orleans Parish while at the same time serving as an assistant district attorney in that Parish. The misconduct found by the board (the attorney had defaulted on the charges) included conflicts of interest and misrepresentations to a tribunal by his failure to disclose that he was not permitted to represent criminal defendants, among other ethical lapses. The attorney had a prior record of discipline that included an earlier suspension for a year and a day.
The board called the decision favoring suspension over disbarment a "close call." (Mike Frisch)
The Tennssee Supreme Court has publicly censured an attorney. The attorney submitted a conditional guilty plea to misconduct that involved "instructing a client...to shred duplicate photocopies of account statements the client had illegally taken from an employer against [the lawyer's] specific instructions to the client not to take such documents." The client had falsely denied (and filed two confirming affidavits) that he had taken the documents, which contained confidential customer information. Later, the lawyer told the client to shred the documents "so that the information could not be illegally used by [a] new employer and so that the client would again be in compliance with federal and state financial privacy laws."
The lawyer had disclosed the shredding and perjury to opposing counsel and the court. Howver, the initial advice was improper. (Mike Frisch)
Ethics 101: That Which Is Normatively Advisable Is Not A Function Of Its Being Positively Possible
Posted by Alan Childress
Like cloning and karaoke. And now the invention of the Laptop Steering Wheel Desk. Amazon has it on sale at a great price, though one that may not internalize all the societal costs of the product. No worries!... It warns you: "For safety reasons, never use this product while driving." Most of the reviews are positive, like:
I loved my Laptop Steering Wheel Desk so much I got one for my 90yr old mother. She is an avid crossword puzzle fan and now she can work on them while she is driving back and forth from bingo at the senior center. One cautionary note be careful of those jerks that stop at yellow lights, my poor mother rear ended one and the airbag drove the desk back into her stomach which ruptured her spleen, well after a short down time I'm glad to say she is back on the road and cranking out those NY Times crosswords once again. Thanks Laptop Steering Wheel Desk you have made my mothers life more complete.
A commenter did not like the review above, saying, "Your mother should be paying attention to the road instead of her crossword puzzles. Those puzzles can wait, not her life or someone else's on the road." Maybe the commenter is right, but really tomato, tomahto. It's all just a normative opinion.
But one reviewer gave it five stars: "This has been a total lifesaver. It allows me to prop my sheet music against the wheel, allowing me to play the guitar with both hands while driving." To which a different commenter replies: "I think you and your guitar are a threat to the safety of others on the road."
My son hates it when I say that a certain intersection or product is an accident waiting to happen. (Hey I teach torts.) And so I now say that it is a mishap anticipating its own occurrence, just to annoy him.
Just in time for Christmas! Maybe I will get that for everyone instead of the GR8 TaT2 Maker. That's a "home tattoo parlor" for those of you who do not speak fluent license plate yet. For ages 6-12 (somehow outgrown by, and inapt for, the teens).
Hat Tip to discourse.net.
"Especially Egregious"The Maryland Court of Appeals disbarred an attorney who had failed to participate in the disciplinary proceeding. The court found that there was substantial evidence to support the findings below of repeated and intentional misappropriation of entrusted funds. Intentional misappropriation was deemed here to be "especially egregious" because the conduct was also "infected with deceit and dishonesty." (Mike Frisch)
November 15, 2009
Upon Opening, It Gave Off a Nose of "Damp Forest Floor," But With Some Air It Was "Elderflower" With Just a Hint of "Marzipan"
Posted by Jeff Lipshaw
If like me, you are a fan of, but overwhelmed by, Steve Bainbridge's knowledge of food and wine, there's a product for you. My wife ordered the WSJ Wine starter kit, and I have no idea if this stuff is any good, but it comes with a poster-like "Taste Prompter" that is something like a color wheel. Tastes are categorized into Vegetal, Chemical, Earth, Animal, Spice, Sweet, Fruit, Wood, Flower, and Fire. Then there are further subdivisions (e.g., Wood divides into Nuts and Resins; Fruit divides into Tree Fruit, Processed, Tropical, Citrus, and Berry). Then we get to the tastes themselves. As an aspiring horseman, I like "sweaty saddle." "Honeysuckle" sounds nice, but I can do without "roofing felt." Same with "almond" and "pencil-shaving." I was disappointed to see there is no "crumbling Northeast Reporter 2d."
Posted by Jeff Lipshaw
[I posted this as a comment to the thread over at PrawfsBlawg that Dan Markel started for those going through the AALS recruitment process, and decided to repost it here. Over here, think of it as Jeopardy! - you can guess the question from my answer.]
FWIW, from somebody who has been arguing in courts of appeal, making presentations in business, sitting on panels, and giving academic talks for over 30 years. And listening to a lot of them.30 minutes is too long. Plan for 15 to 20. At 30 minutes, people will either be squirming or interrupting. Trust me, there's nothing so critical in your talk that you need those extra minutes. You only think there is. When you think you've cut to the bone, cut again. The audience will never know.
Re giving a 60 page paper in 15-20 minutes, a couple points. First, can you really not get your thesis across in 15-20 minutes? There's a real problem if you can't. Second, even if you are in the center of the constitutional law strike zone, you aren't giving this paper to people who know this subject like you do, or even know anything about your area. This is an exercise in interdisciplinarity. Consider that you are giving your talk to a roomful of very intelligent laypeople, and think of all the detail filling those 60 pages as layers that you might draw on to amplify your basic points when it comes time for questions. Think of this like oral argument - you have just a few minutes to get across the problem you're addressing, the current state of intellectual play, your contribution, and why it matters. Don't get lost in the trees.
As to reading papers. Oy vey. Reading a paper, it seems to me, is at one of the rungs of hell, the only things lower being (1) reading the paper off tiny note cards in a meek monotone, and (2) reading verbatim the overly dense bullet points on a Power Point.
As to Powerpoint, much less is much more. Personally, I wouldn't use it unless there is something diagrammatic that simply needs to be viewed communally. Very brief outlines are helpful, but I think handouts are better for that, particularly if you have the text of a statute you are discussing.
As to the podium, nothing wrong with using notes. But don't use the podium like a crutch or a barrier. Step to the side from time to time. Particularly when it's time for Q & A, move out from behind the podium and get closer to the audience. Relax. Have fun. Be the master of your domain. My experience in a number of callbacks is that the audience wants you to succeed (very much) - nobody is comfortable witnessing a disaster, and the hope is always that you are the best thing since sliced bread. Even when you get challenging questions, it's because you have caused some mental gears to be engaged. View every question as an opportunity to be a teacher!
Family Ties Create Appeareance Of Impropriety
A criminal defendant objected to the appointment of a special prosecutor on grounds that the prosecutor had ties to the county prosecutor's office and to a person that the defendant had previously testified against in a criminal case. The appointed prosecutor had taken a particular interest in the earlier case because the defendant (an attorney) was also his brother-in-law. The Indiana Supreme Court concluded that an appearance of impropriety was created by the prosecutor's interest in the case involving the brother-in-law:
...the evidence shows that Cummins was appointed to prosecute Kirtz just a few weeks after Kirtz testified against Cummins‟s brother-in-law in a felony case in which Cummins had expressed interest and some support for his brother-in-law and other members of their family. The issue here is not whether Cummins has a grudge against Kirtz or some other motivation to prosecute him more harshly; nor is the issue whether Cummins can set aside any personal feelings or interests he may have, fairly prosecute Kirtz, and effectively represent the State. The issue is one of appearance: whether Cummins‟s appointment created the appearance of impropriety. See Ind. Code § 33-39-1-6(d). The appointment created the appearance of impropriety because the totality of circumstances allowed an objective observer reasonably to question whether Cummins‟s familial relationship with Alexander and Kirtz‟s role in the case against Alexander would affect the prosecution of Kirtz, including Cummins‟s exercise of broad discretion in that prosecution.
The court's opinion is linked here. (Mike Frisch)