December 12, 2009
South Carolina Opines On Judges And Facebook
From the South Carolina Advisory Committee on Standards of Judicial Conduct:
A magistrate judge has inquired as to the propriety of being a member of Facebook, a social networking site. The Magistrate is friends with several law enforcement officers and employees of the Magistrate’s office. The Magistrate is concerned about the possibility of an appearance of impropriety since the list of Facebook subscribers is vast.
A judge may be a member of Facebook and be friends with law enforcement officers and employees of the Magistrate as long as they do not discuss anything related to the judge’s position as magistrate.
A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Canon 2(A), Rule 501, SCACR. However, the commentary to Canon 4 states that complete separation of a judge from extra-judicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives. Allowing a Magistrate to be a member of a social networking site allows the community to see how the judge communicates and gives the community a better understanding of the judge. Thus, a judge may be a member of a social networking site such as Facebook.
Has Anyone Seen A Bloody Shirt?
An Arizona hearing officer has recommended public censure in a bar discipline matter involving an attorney admitted in 1972. The attorney was appointed to represent a defendant charges with hindering the prosecution of a homicide. The client, at the attorney's urging delivered a shirt worn by the defendant (not his client) in the homicide case. The shirt was covered with the blood of the victim. The attorney lost the bloody shirt. After he was removed as counsel, the attorney disclosed confidential information about the circumstances in a defense interview. He did so negligently, according to the hearing officer, because he testified that he "simply wasn't thinking clearly." The statements were suppressed and there was no resulting harm to the client.
In addition to the censure, the hearing officer recommends that the attorney take a CLE course called "Candor, Courtesy and Confidences: Common Courtroom Conundrums." (Mike Frisch)
December 11, 2009
Fee Dispute Resolution Process Bars LitigationAn interesting decision of the North Carolina Court of Appeals holds that the courts lack subject matter jurisdiction over a lawyer's suit for allegedly unpaid fees when the suit is filed contrary to State Bar rules governing resolution of fee disputes. The attorney had commenced the suit while the bar had the claims under consideration and had claimed almost $180,000 in fees. The court here holds that the bar's processes must be followed before suit can be filed. The suit was dismissed without prejudice. (Mike Frisch)
Lawyer As Witness
The State of Washington Court of Appeals, Division III, has reversed an order disqualifying counsel for two persons injured in a one-car rollover accident. The court that ordered disqualification had found that the lawyer was a necessary witness. The court here concluded that the lower court had applied the wrong legal standard, citing the findings required for disqualification in a prior case:
[A] motion for disqualification must be supported by a showing that the attorney will give evidence material to the determination of the issues being litigated, that the evidence is unobtainable elsewhere, and that the testimony is or may be prejudicial to the testifying attorney's client.
The issue arose in an interpleader action filed by an insurer that issued an uninsured motorist policy. When the injured clients objected to the proceeding, the insurance company sued their lawyer for third-party malpractice and sought to remove the lawyer. The disputed issue was whether insurer or the lawyer was responsible for foot-dragging delay.
The court here did not rule out the possibility of disqualification on renewed consideration of the issues and proper standard after a hearing. (Mike Frisch)
Authority Arguers (Litigating Lawyers) Versus Authority Creators (Transactional Lawyers): It's Still All Outside-In
Posted by Jeff Lipshaw
Some time ago, I wrote an article, largely in reaction to an article Richard Posner had written on contract interpretation, suggesting that there was far less connection than commonly expected by lawyers between a “mutual intention of the parties” supposedly embodied in even a heavily negotiated contract and subsequent colorable disputes involving interpretation of that same contract (see The Bewitchment of Intelligence). Having immersed myself for the last several months in scholarship (such as it is) on consciousness, judgment, and wisdom, I now realize that Bewitchment merely took on one particular manifestation of the objective, rational model that is the teaching, scholarship, and practice of American law.
I am prepared to expand the thesis. I will defer exposition of my own articulation of the difference between arguments from authority and arguments from merit (in process) to Professor Geoffrey Samuel's (Kent, left) more sociological exposition of the same point: the reason it is hard to take law seriously as a “science” (and, I would add, the reason the explanatory so often blurs into the normative) is that law is, and has always has been, based on an “authority paradigm,” more akin to theology than to science. The authority paradigm is the key thing, because authority must come from somewhere: from the standpoint of mind, authority is "outside-in." That distinguishes it from wisdom and judgment, which, from the standpoint of mind, are "inside-out." (Pardon my Kantian tendencies here, but outside-in strikes me as legislating, or heteronomous, while inside-out strikes me as self-legislating, or autonomous.)
Let me bring this back to the practice of lawyering, rather than just the theory of law. We are in the midst of working through our curriculum on transactional skills, and the first building block is, invariably, “contract drafting.” I realize I am treading close to heresy here, and I don’t intend to suggest that contract drafting isn’t one of the transactional lawyer’s core skills. But it dawned on me (again) this morning, as I was reading an essay by Laura Dunham (University of St. Thomas, right) on business ethics in entrepreneurship, that even contract drafting (as a lawyering skill) fails to get at the critical difference between judgment and lawyering. Most of what lawyers think and do (at least classically) either in the litigation or the transactional setting constitutes a category error when it comes to the exercise of judgment (in the everyday and not judicial sense). As I argued in Objectivity and Subjectivity in Contract Law, the fundamental dividing line as between promise and contract doesn’t have to do with efficiency or morality; it has to do with objective versus subjective, or public versus private, or (perhaps?) inside-out versus outside-in.
The paradox of law in the litigation context is that both parties are praying to the same god for victory in the name of justice. The Europeans (like Luhmann or Derrida - at least in the latter's views on justice) expose an uncomfortable possibility: it is not an appeal to justice; it is an appeal to authority with the patina of justice. That’s what we teach first year lawyers: how to make an argument - the best ones being those that satisfy the Dworkinian standard of integrity: fit and justification (i.e., they give the best appearance of being not only just, but consistent with authority). Contract drafters aren’t authority arguers; they are authority creators (in the sense of the private law that is the law of contracts). There is no real connection between the contract and the later dispute (despite the arguments of Judge Posner, Professors Schwartz and Scott, and other rationalists), except in the sense that words that were written will come to constitute whatever “law” there is.
Judgment and wisdom, on the other hand, require that we step back from the authority paradigm (and perhaps also from the self-interest paradigm). That’s the quality that comes after first year doctrine, contract drafting, and deal skills. It means somehow teaching the inside-out rather than the outside-in. Now here’s the tough question: what are the academic and professional bona fides for teaching that advanced course?
December 11, 2009 in Abstracts Highlights - Academic Articles on the Legal Profession, Comparative Professions, Law & Society, Straddling the Fence, The Practice | Permalink | Comments (1) | TrackBack
In Service Of The School
The Massachusetts Supreme Judicial Court has held that a high school math teacher who was injured skiing while serving as a chaperone to the ski club was acting within the course of employment:
...it is clear that the employee's skiing as a chaperone arose out of and in the course of her employment as a teacher, even though her participation as a chaperone was voluntary. First, it was customary for teachers to serve as chaperones for the ski club's trips and to perform many of their functions as teachers while they did. The chaperones were responsible for supervising student behavior, enforcing school rules, and monitoring student safety. These supervisory responsibilities are essentially the same ones teachers must exercise while working in the school building during school hours. In order to fulfil these responsibilities while the students were skiing, the chaperones were expected to ski with the students. Indeed, accompanying the students on the ski slopes was the only effective way to monitor the students while they skied. Furthermore, at the time of the employee's injury, she was skiing with the students she was charged with monitoring, rather than skiing recreationally on her own.
The matter is Sikorski's Case, decided today. Good news for those, such as myself, who risk life, limb and professorial dignity to participate in an annual school-related charity basketball game. (Mike Frisch)
An Arizona hearing officer has recommended a four-year suspension with probation for two years if reinstated in a matter where the attorney had continued to practice after suspension for non-payment of bar dues. The attorney had continued to accept court appointments after the administrative suspension in at least 54 cases over approximatelt six months and was "[o]n information and belief" paid more than $55,000 for for appointed cases. The attorney had failed to cooperate in the ensuing disciplinary process.
The hearing officer concluded:
...the challenge is to decide whether the [attorney] can salvage her legal career. To recommend disbarment on this record is to conclude that the [attorney] is beyond the point of rehabilitation. Certainly the length of time in which [the attorney] knowingly represented clients in court while on suspension leads to the conclusion that [the attorney] will not follow the rules for professional conduct. It seems ludicrous that a person who is being paid $55,000 over a six-month period... cannot pay annual bar dues. The hearing oficer suspects that something else is involved in [the attorney's] conduct...
A Louisiana hearing committee has recommended a three-year suspension of an attorney described as "one of the most prolific bankrutcy lawyers in the Middle District [of Louisiana]." Admitted in 1971, the attorney had been charged (in one count) with misconduct associated with the general decline in the quality of his practice begining around April 2003 and continuing until he was suspended by the federal bankruptcy court for the Middle District of Louisiana in May 2007:
The totality of the evidence indicates that this period of time roughly coincides with the period of time during which [the attorney] was practicing by himself and was utilizing the services of his wife...as an assistant. It also coincides with the time frame in which [he] was issued numerous "show cause" orders...relative to [his] bankruptcy cases in that court.
The committee also considered case-specific charges in other counts. (Mike Frisch)
Dishonesty Not Caused By Depression
The New York Appellate Division for the First Judicial Department has imposed a five-year suspension, with no credit for time served, for a pattern of misconduct involving neglect and dishonesty to conceal the neglect. The attorney had been employed as New York area counsel to a national insurance company. The court here summarizes the evidence as to the cause of the misconduct:
A hearing was held before a Referee on November 21, 2008. Respondent testified, as did M. Geraldine Hoban, Ph.D., his treating psychologist. Dr. Hoban testified that she had been treating respondent for clinical depression since September, 2005. Because of respondent's self-admitted alcohol and drug abuse, she initially referred respondent to a substance abuse program, which he completed in January 2006. While Dr. Hoban was able to state with a reasonable degree of psychological certainty that respondent's depression was a major contributing factor to his neglect of legal matters, she could not conclude that respondent's depression and "self-destructive" behavior were causally linked to his repeated acts of intentional deceit. She also stated that at the time she diagnosed respondent's depression, she was unaware of these deliberate actions. Respondent himself acknowledged that while prescribed medication was effectively alleviating his depression by 2006, he continued to engage in fraudulent misconduct during that period.
As to sanction:
Given respondent's pattern of misconduct, his repetitive fabrication of documents to deceive his clients and Fidelity, and the large financial loss borne by Fidelity as a result of respondent's misconduct, a substantial suspension is warranted...
Further, we direct that the suspension be prospective. Respondent's indefinite suspension was due to misconduct (continued failure to register), which was entirely independent of the serious misconduct for which he was charged herein, and in violation of Judiciary Law § 468-a. This is not a case where a respondent was suspended on an interim basis (either pursuant to 22 NYCRR 603.14(e)(1) or a "serious crime" matter) and where this Court would follow its usual practice in such a case of ultimately suspending or disbarring the attorney nunc pro tunc based upon the same misconduct which resulted in the interim suspension. Moreover, respondent obviously knew that registration was required, having done so consistently from the time of his initial admission until 1998. Thus, his subsequent failure to register from 1999 forward must be considered as more than a mere inadvertence and respondent should not profit from it by having his suspension made retroactive to the date of his suspension.
December 10, 2009
Conditional Admission Change In FloridaThe Florida Supreme Court announced today the adoption of a new rule that limits the confidential conditional admission feature to persons who are permanent Florida residents, who will engage in practice primarily in Florida and who "can and will be monitored in Florida." the court notes that such admission is a "special admission status sometimes offered to applicants with a history of drug or alcohol abuse or psychological problems..." The change is immediate and to be applied prospectively. (Mike Frisch)
A Wild Ride, A Well-Told Story
The District of Columbia Court of Appeals has issued an opinion that begins "Sally Jumper is dead but a dispute arising from her assets lives on." The court then tells us that "Sally Jumper led an interesting life" and takes us on a wild ride concerning a bitter dispute between a 30-year friend of the late Ms. Jumper (one Mr. Anderson) and a financial advisor who later came on the scene (one Col. Jan Verfurth). Sounds like the participants in a game of Clue.
Mr. Anderson had a power of attorney for Ms. Jumper and hired an attorney to initiate a guardianship proceeding, seeking appointment of himself as guardian and describing himself as "her closest and oldest friend." The petition claimed that Col. Verfurth was dissipating Ms. Jumper's assets. The court heard opposition but appointed Mr. Anderson as guardian but not conservator because he was not an attorney. A lawyer who happened to be in the courtroom (Ms. Sloan) was appointed as conservator, and for her trouble is still embroiled in this litigation.
When Ms. Sloan encountered difficultly in marshalling assets from Col. Verfurth, she went back to court. It eventually turned out that Mr. Anderson and his lawyer were aware of estate-planning documents that were relevant to Ms. Jumper's intentions but unhelpful to Mr. Anderson's claims. These documents had not been brought to the attention of the probate court. The trial court also was not told that Ms. Jumper had her own lawyer.
After hearing testimony concerning Ms. Jumper's competence, the trial court vacated the appointment and sanctioned Mr. Anderson and his attorney for "ethically questionable behavior." Further, there was no basis in evidence for the claim of dissipated assets by the good Colonel. The court here affirmed the sanctions ordered to be paid to Ms. Sloan but remanded the portion of the award to Col. Verfurth's attorney. Col. Verfurth sent his regrets and did not participate in the appeal.
The court also discusses the ethically questionable behavior of Mr. Anderson's attorney and the ulterior motives of the client: "We need not decide...whether [the attorney] initiated the Petition in bad faith so as to justify sanctions because the trial court plainly did not abuse its discretion in holding that [his] post-filing conduct was sanctionable...even after the guardianship was vacated, [he] drafted legal documents for Ms. Jumper and participated in tape-recorded meetings with her, all without inviting [her lawyer] or any of the attorneys who had represented Ms. Jumper over the years." The court opines that this conduct would run afoul of either Rule 4.2 or 4.3: "Whether [the attorney] should be disciplined under the Rules of Professional Conduct is for the Office of Bar Counsel to consider in the first instance." The court's Clerk was directed to forward a copy of the opinion to the OBC.
Worth a read. (Mike Frisch)
December 9, 2009
"Reprehensible And Insulting"
A panel of the Illinois Hearing Board has recommended a one-year suspension based on findings of misconduct involving sexual behavior towards clients both in the office and over the phone. An example from the testimony of one of the complainants, a divorce client:
On the evening of June 15, 2005, Respondent met Sara [the client] in the lobby and walked her back to his personal office. On the way back to Respondent’s office Sara saw Robin Minnis [an attorney in Respondent's firm] at her desk in her office. Sara recognized Ms. Minnis because Ms. Minnis used to be a judge in Ogle County and Sara had appeared before her. Sara followed Respondent into his personal office and the door to the office was shut during their meeting which lasted between an hour and an hour and a half. No one else was present in Respondent’s personal office during their meeting.
When they entered Respondent’s personal office Respondent went behind his desk while Sara put her things down and got out some letters from Donald [her husband] that she wanted Respondent to review. The letters contained sexual connotations and showed that Donald was almost stalking Sara.
Respondent said "You look beautiful today," and Sara said, "Me? Chunker Butt?" Respondent then said, "You smell so good," and Sara sat down. Respondent asked Sara if she wanted something to drink and Sara said "No." Respondent then walked out of the office and came back with a bottle of water and shut the door.
Respondent went behind his desk again and put his hands behind his head and leaned back and said "Oh, I have had a hard day today" and Sara replied "Oh really?" He stood up and said, "Oh, I have had such a hard day" and asked Sara if he could have a hug. Sara replied "Dennis" and Respondent said, "Can I just have a hug?" and Sara replied "Okay." Sara got up and went over to where Respondent was standing and hugged him. When Sara tried to let go Respondent held onto her and Sara asked him, "Dennis, what are you doing?" and then Sara said "That’s enough."
Respondent started pushing his groin up against Sara and "humping" her, but she and Respondent both had all their clothes on. Sara stumbled and fell against the wall and Respondent put his hands on Sara’s breasts and simulated turning Sara’s breasts like a faucet. Sara said, "Okay, Dennis, that’s enough," but Respondent kept pressing himself up against Sara and said, "Oh, you don’t know what you do to me" and then Respondent put his tongue in Sara’s mouth.
Sara backed up and Respondent said, "You don’t know what you do to me." Respondent then took Sara’s hand and put it over his pants on his semi-erect penis and began rubbing her hand on his penis over his pants. Respondent said "Oh, you don’t know what you do to me" and "I could lay you right there." Then Respondent "snapped right out of it" and walked back over to his desk. Sara testified that the incident lasted for "minutes" but that it "was way too long" and it reminded her of being sexually abused as a child. Sara did not scream because she did not know whether Ms. Minnis was still in the office and she was afraid it might make Respondent angry. Sara was "freaked out" and dumbfounded.
Sara told Respondent she had to go to the bathroom and then left Respondent’s personal office and went to the bathroom down the hallway. On her way to the bathroom she passed Ms. Minnis’ office, but Sara did not look in to see if Ms. Minnis was there. Sara went into the bathroom and took a deep breath because she did not know what to do. Sara did not have the money to hire another lawyer. She had borrowed the money to hire Mr. Cargerman [her prior attorney who became a judge] from her employer and Respondent received the remainder of the money Mr. Cargerman had not used when she hired Respondent. Sara wanted to get out of Respondent’s office, but she did not leave.
Sara went back into the Respondent’s personal office after going to the bathroom. On her way back to Respondent’s office she passed Ms. Minnis’ office again, but Sara did not look in to see if she was there. Sara also did not know whether the door next to the bathroom she used was a door to the outside or a door to another office.
When she returned to his personal office Respondent was acting normal and professional. Sara asked Respondent if he had read the letters from Donald that she had left out for him and Respondent replied that he had not. Sara told Respondent that there was "something right down there" on one of the letters she wanted him to read and Respondent said, "Oh, right down there" in a "bedroom" voice. Then Respondent began acting professionally again, but was not interested in the letters. (Transcript references omitted).
After recounting the similarly graphic testimony of other complainants, the hearing board concluded:
Respondent engaged in misconduct of a sexual nature towards two clients and toward the wife of another client. Respondent’s actions were reprehensible and insulting and could not have been reasonably considered by him to be acceptable behavior under the ethical rules of our profession. We believe a one year suspension is warranted in this case.
The Arizona Supreme Court has adopted the recommendation of a hearing officer of a 30 day suspension and probation of a prosecutor for a wide and persistent array of ethics violations during a trial. The hearing officer had found that the prosecutor had, among other things, argued facts not in evidence, asked improper questions, expressed personal opinions about guilt and otherwise behaved in a manner that should provide a training lesson of how not to conduct a criminal trial.
In final argument, he stated to the jury: "Ladies and Gentlemen, you've been presented a case that is as strong a case as a prosecutor can present you in a court of law." In his rebuttal argument, he told the jurors "The law requires that I not prove this case beyond all doubt, but only that you have to feel comfortable in your decision that [the defendant] is guilty."
The trial lasted five months on charges that the defendant had raped a victim and then pistol whipped the rape victim's significant other and then fatally shot him in the head. (Mike Frisch)
"What's Up?"The Maryland Court of Appeals has held that a criminal suspect was not subjected to custodial interrogation or its functional equivalent when a police officer greeting him with the words "What's up, Maurice?" The court affirmed the conclusion of the Court of Special Appeals in its review of a conviction for conspiracy to distribute cocaine and related offenses. (Mike Frisch)
A Privilege, Not A Right
The Tennessee Supreme Court has affirmed the denial of a petition for reinstatement of an attorney admitted in 1975. He had been privately admonished in 1987 and publically censured in 1994. Then, three complaints led to his two-year suspension.
In the suspension case, a hearing panel committee found numerous ethical violations including forgery, misappropriation and other trust account violations including 24 overdrafts.The panel ruled that the attorney be disbarred. The panel decision was appealed to a county chancery court, which found the sanction excessive and ruled that the some of the conduct was "de minimus" and "need not be noticed further." The chancery court further found that the attorney regretted his errors and had reformed his office procedures. The chancery court imposed public censure. The Board of Professional Responsibility appealed the chancery court's finding of no misappropriation and the sanction. The Supreme Court found the violations to be serious, warranting the two-year suspension.
Here, the court agreed that the attorney had failed to establish the moral qualifications for reinstatement: "There is a dearth of Tennessee case law setting forth specific examples of proof that will establish that an attorney possesses the moral qualifications required for reinstatement." The evidence of the six character witnesses and testimony regarding his operating procedure reforms did not meet the standard:
...perhaps most importantly, none of these changes to [his] accounting procedures constitute proof of rehabilitation as to his [prior] forgery of his clients' signatures or his willingness to involve one of his employees in a scheme to present the signatures as genuine by having her falsely notarize them.
In reinstatement, that should be the hard part--proving that past serious dishonesty will not recur. The court here notes that law practice is a privilege, not a right. (Mike Frisch)
December 8, 2009
Sophistry About Conviction Circumstances Leads To Disbarment
The New York Appellate Division for the First Judicial Department has disbarred an attorney convicted of conspiracy to commit securities and wire fraud. The court noted that the attorney had been previously incarcerated for contempt as a result of his failure to pay court-ordered child support. Although the attorney was entitled to a hearing, the court rejected recommendations for a lesser sanction:
On or about October 30, 2008, the Referee issued his report. Although noting that respondent was on supervised release and is required to report to a probation officer until 2011, the Referee recommended that respondent be suspended from the practice of law for three years retroactive to June 15, 2006 (the date of this Court's interim suspension order), noting respondent's "remorse" and stating that respondent "considers himself a decent man and a law abiding citizen in spite of his conviction and his having been sentenced to six months incarceration in Westchester County for contempt of court regarding what he refers to as a civil' matter."
Thereafter, a Hearing Panel convened to review the report of the Referee. On April 20, 2009, the Panel issued its determination which recommended that respondent be suspended from the practice of law for five years, nunc pro tunc to June 15, 2006, the date of his interim suspension.
In recommending a five-year suspension, the Panel noted that it believed it was inappropriate for respondent to be allowed to practice law while he is under a period of supervised release with a special condition that he participate in a mental health treatment program. The Panel further noted that it believed that respondent had neither accepted responsibility for his conduct nor expressed remorse. The Panel stated:
"Respondent endeavors to persuade the Panel by sophistry, claiming that his regret for having allowed himself to get caught up with fraudsters entitles him to mitigation [...] Simply put, we do not equate his feelings of regret with remorse. More to the point, Respondent's attempt to excuse himself of any moral or criminal responsibility is pursued by blaming everyone else [...]"
The Panel also found, in aggravation, respondent's prior civil contempt conviction, the "significant" outstanding judgments and liens filed against him, and his failure to file an affidavit of compliance with this Court's order of interim suspension.
The court concludes:
Here, respondent engaged in much more reprehensible conduct than the attorneys in [prior cited cases]. As such, respondent must face a considerably greater sanction. Accordingly, regardless of whether respondent's conviction be deemed an analogue felony, we find that the serious nature of his crime coupled with his complete failure to assume responsibility for his actions, warrants disbarment, effective the date of his interim suspension.
No "Friends" For Judges
The Florida Judicial Ethics Advisory Committee opines on ethical issues relating to judges' use of on line social networking sites. A summary of the opinion from the committee:
Whether a judge may post comments and other material on the judge's page on a social networking site, if the publication of such material does not otherwise violate the Code of Judicial Conduct.
Whether a judge may add lawyers who may appear before the judge as "friends" on a social networking site, and permit such lawyers to add the judge as their "friend."
Whether a committee of responsible persons, which is conducting an election campaign on behalf of a judge's candidacy, may post material on the committee's page on a social networking site, if the publication of the material does not otherwise violate the Code of Judicial Conduct.
Whether a committee of responsible persons, which is conducting an election campaign on behalf of a judge's candidacy, may establish a social networking page which has an option for persons, including lawyers who may appear before the judge, to list themselves as "fans" or supporters of the judge's candidacy, so long as the judge or committee does not control who is permitted to list himself or herself as a supporter.
As to the "friend" issue:
The Committee believes that listing lawyers who may appear before the judge as “friends” on a judge's social networking page reasonably conveys to others the impression that these lawyer “friends” are in a special position to influence the judge. This is not to say, of course, that simply because a lawyer is listed as a “friend” on a social networking site or because a lawyer is a friend of the judge, as the term friend is used in its traditional sense, means that this lawyer is, in fact, in a special position to influence the judge. The issue, however, is not whether the lawyer actually is in a position to influence the judge, but instead whether the proposed conduct, the identification of the lawyer as a “friend” on the social networking site, conveys the impression that the lawyer is in a position to influence the judge. The Committee concludes that such identification in a public forum of a lawyer who may appear before the judge does convey this impression and therefore is not permitted.
The Committee notes, in coming to this conclusion, that social networking sites are broadly available for viewing on the internet. Thus, it is clear that many persons viewing the site will not be judges and will not be familiar with the Code, its recusal provisions, and other requirements which seek to assure the judge's impartiality. However, the test for Canon 2B is not whether the judge intends to convey the impression that another person is in a position to influence the judge, but rather whether the message conveyed to others, as viewed by the recipient, conveys the impression that someone is in a special position to influence the judge. Viewed in this way, the Committee concludes that identifying lawyers who may appear before a judge as "friends" on a social networking site, if that relationship is disclosed to anyone other than the judge by virtue of the information being available for viewing on the internet, violates Canon 2(B).
The inquiring judge has asked about the possibility of identifying lawyers who may appear before the judge as “friends” on the social networking site and has not asked about the identification of others who do not fall into that category as “friends”. This opinion should not be interpreted to mean that the inquiring judge is prohibited from identifying any person as a "friend" on a social networking site. Instead, it is limited to the facts presented by the inquiring judge, related to lawyers who may appear before the judge. Therefore, this opinion does not apply to the practice of listing as “friends” persons other than lawyers, or to listing as “friends” lawyers who do not appear before the judge, either because they do not practice in the judge's area or court or because the judge has listed them on the judge’s recusal list so that their cases are not assigned to the judge.
A minority of the committee would answer all the inquiring judge’s questions in the affirmative. The minority believes that the listing of lawyers who may appear before the judge as "friends" on a judge's social networking page does not reasonably convey to others the impression that these lawyers are in a special position to influence the judge. The minority concludes that social networking sites have become so ubiquitous that the term "friend" on these pages does not convey the same meaning that it did in the pre-internet age; that today, the term "friend" on social networking sites merely conveys the message that a person so identified is a contact or acquaintance; and that such an identification does not convey that a person is a "friend" in the traditional sense, i.e., a person attached to another person by feelings of affection or personal regard. In this sense, the minority concludes that identification of a lawyer who may appear before a judge as a "friend" on a social networking site does not convey the impression that the person is in a position to influence the judge and does not violate Canon 2B.
December 7, 2009
No Discipline For T-Shirt Slogan
The Arizona Disciplinary Commission has accepted (by a 5-4 vote) the recommendation of a hearing officer and dismissed ethics charges against an attorney.
The attorney had beeen charged with misconduct for wearing a t-shirt to an interview with two police officers in the prosecutor's offices that was emblazoned with the immortal phrase "Let the f**cking begin." He had also ordered a gift subscription to Modern Drunkard Magazine for the waiting room of the Maricopa County Attorney's Office Vehicular Crimes Bureau because, in his view, the "waiting room magazines required a better selection."
The bar had sought an informal reprimand before the hearing officer for conduct described as "not the most serious but inappropriate..." (Mike Frisch)
Fit To Practice
The Pennsylvania Supreme Court has reinstated an attorney who had been suspended for three years retroactive to a suspension imposed in December 2005. The attorney had "suffered from a long term addiction to hydrocodene, which she began taking in 1999 while studying for the bar exam." The addiction led to an arrest on controlled substances charges. She then was convicted of DUI and sentenced to a jail sentence. After release, she was again arrested and convicted of drug charges and identity theft and sentenced to a second prison term.
The attorney was visited in prison by a representation of the Bar's Lawyers Concerned for Lawyers program. She had remained sober since that January 2004 visit and been employed as a paralegal at a law firm. She also has volunteered to help current and former inmates with addiction problems. The Disciplinary Board concluded that she had met the burden of proving fitness. The court here adopted the board's recommendation. (Mike Frisch)
Betrayal Of Trust
The Louisiana Attorney Disciplinary Board has recommended a fully-deferred suspension of one year and one day in case matter involving the failure to supervise an embezzling employee:
The record in this case shows that [the attorney] failed to properly supervise his non-lawyer employee...even after receiving notice of allegations of prior embezzlement. As a result, [the employee was able to embezzle approximately $15,000 over the course of five months. During this time [the attorney] experience personal problems, causing him to be absent from the office for some of the time that the embezzlement occurred. The absence contributed to, but does not excuse, [his] failure to supervise [the employee].
The board further recommends probation of two years with trust accounting school, reconciliation of his trust account by a CPA, and "there being no resulting evidence of improper accounting. " (Mike Frisch)