December 18, 2009
Reciprocal Discipline For Illegal Immigration Lawyer
The lawyer had filed "in excess of 4,700 applications or petitions seeking immigration benefits for clients. However, respondent himself was illegally present in the United States during this time, as he did not have lawful immigration status and did not have authorization for employment in this country from U.S. immigration authorities."
He had been disciplined by the DOJ Executive Office of Immigation Review. Colorado had imposed a suspension of a year and a day. Louisiana here imposed the same sanction as Colorado. (Mike Frisch)
Garbage Out, Evidence In
A person who purchased items associated with the manufacture of methamphetamine at a Wasilla store was reported to the police. The police seized two garbage bags left out for collection at the suspect's residence and found evidence that led to criminal charges. The evidence was ordered suppressed by the trial court but was reversed by the court of appeals. A majority of the Alaska Supreme Court agreed that the evidence was admissible.
There is a dissent:
The people of Alaska deserve a rule that jealously protects their constitutional right of privacy, and I would adopt a rule requiring police to obtain a warrant to seize and search garbage that is left for collection in the normal course. I would therefore reverse the court of appeals's decision and reinstate the trial court's suppression ruling.
A decision like this could put Wasilla on the map. (Mike Frisch)
All In The Family
It's rather unusual to see a lawyer disciplined for misconduct in connection with the representation of another lawyer in a bar discipline case. An Arizona hearing officer has recommended a censure and probation for one year in such a matter. The lawyer was close to a couple who acted as his surrogate parents. The couple had a daughter who married someone that the lawyer knew from law school. The lawyer was representing the husband in a pending bar matter (eventually dismissed) when he undertook to represent the wife in a divorce action against the husband, his current client.. He tried to withdraw from the bar case, "as he believed he had a greater ethical duty to [the wife]." The husband refused to consent to the withdrawal. Eventually the lawyer withdrew from the divorce case.
The lawyer then undertook a second bar case for the husband. While that matter was pending, the lawyer advised but did not formally represent the wife in preparing a second divorce action and appeared on her behalf at a pretrial conference. He also entered an appearance for her in a criminal domestic violence case brought by the husband. The lawyer also had improper ex parte contacts with the judge in connection with protection orders entered against the husband.
The hearing officer found that the representation of wife was directly adverse to husband, an already existing client: "Respondent was engaged in a series of events wherein he represented several old friends in conflicting circumstances....this case is very convoluted, and has several twists and turns...[he] now understands that his loyalty to the Eicher family and his attempts to remain friends with [the husband] are mutually incompatible." (Mike Frisch)
Artificial Intelligence, Avatar* Lawyers, and Judgment
Posted by Jeff Lipshaw
I was an Avatar skeptic, but having read the reviews this morning and watched the trailer (available through the link), I'm going to see it. What about avatar lawyers? As part of my business lawyering judgment project, and I've been surveying the literature on artificial intelligence and the law. Could a computer (or an avatar lawyer) ever make a difficult judgment? I want quickly to summarize the field (over-simply, no doubt) and make one central observation. I think the answer to that question is "yes," but it's probably not the kind of "yes" that makes us comfortable. [See Update below on my incorrect use of Avatar Lawyer. If it makes you feel better, think "Robo-Lawyer."
First, let me pose a prototypical problem at the magnitude of difficulty (or complexity) I want to address (this is an excerpt from an in-process piece):
A small manufacturing firm makes plastic electrical connectors. It sells five million of them a year to the automotive industry at a price of fifty cents a unit. The firm's gross revenues are thus $2.5 million. The form purchase order from the automobile manufacturer provides that the supplier is responsible for all losses, including consequential damages, arising from any defect. If the connectors turned out to be defective, their replacement would require two hours of time from a service mechanics (roughly $100). The automobile manufacturer refuses to modify the form warranty provision. Should the firm sell the connectors?
Note the number of business and legal issues this hypothetical presents. It requires a lawyer (human or avatar) to understand the default rules under Section 2-207 of the Uniform Commercial Code, the negotiated alternatives to that statute, to predict possible legal outcomes and weigh the legal risks against a business opportunity with a known payoff, taking into account risk averseness and cognitive biases.
We now need to sort through different kinds of reasoning and their amenability to being replicable in a computer (our avatar lawyer). There's a certain aspect to this that is purely deductive, and capable of being programmed, even by a dolt like me. When I've taught UCC 2-207, I've used a flow chart to chart the deductive system it incorporates. From a given set of assumptions, using another set of rules of inference, the program tells you whether you have a contract and on what specific terms. (See flow chart left.) Embedded within the flow chart, however, are questions the answers to which are "yes" or "no", but the reasoning to which involves something other than deduction. For example, the deductive system requires an assessment at Step 8 whether the terms in the expression of acceptance are "different from" or "additional to" those in the offer. That assessment is not deductive. It may be analogical - we look at other instances of terms being different or additional and decide whether our case is closer to the ones in which the answer was "yes" than to ones in which the answer was "no." Or we could say, perhaps, that the assessment is inductive. Here we are going to look at all the past cases interpreting "different from" and derive a general rule that distinguishes "yes" cases from "no" cases. (Kant referred to this, by the way, as "reflective judgment." I will get to why it's a judgment in a moment.) The other piece of the inductive process would be to take the rule thus derived and determine whether our case falls within the rule. (That's what Kant referred to as "determinant judgment.") We see the principle of "garbage in - garbage out" at work here; if the analogical or inductive reasoning along the way is poor, the deductive process of the flow chart isn't going to be very helpful.
More below the fold.
But there's even another kind of reasoning, or insight, or mental process involved here, and that can take us in a couple of other directions. As to analogical reasoning, we now have to ask the question what makes a good analogy? I'm not going to dip into the cognitive science that addresses this issue for now - the best source on the intersection of metaphor, analogy, and the law is Steve Winter's A Clearing in the Forest. Suffice it to say that it has more to do with pattern-recognition than rule-recognition. As to inductive reasoning, how do you come up with the hypothesis that one particular rule fits the data (here, case results) better than another rule? This is what is called variously abductive reasoning, or inference to the best explanation. (The pioneer was Charles Sanders Peirce.) The best we can do for this kind of reasoning is to say it's a kind of educated guess, and probably related in a significant way to the kind of pattern recognition the cognitive scientists are studying in connection with other pattern recognition. As the behaviorists might say, it's far more likely to be a heuristic than a calculation.
Let's go back to the hypothetical. Surely we can program the avatar lawyer to give us some very good input into the judgment we need to make - it could gather case data as well as empirical data on failure of electrical connectors, and probability calculations of various kinds. But how much input and how good? There's a debate from 2000 between several computer scientists and Cass Sunstein whether artificial intelligence in law can ever be anything more than a glorified LEXIS or WESTLAW. (8 U. Chi. L. Roundtable 1 (2001)), Cass's position being that computers can't do analogical reasoning. There's a response from Eric Engle (Richmond J. L. & Tech., Vol. 9, Issue 2) disagreeing with Cass, and arguing that the criticism is based on notions of static rules of computation, rather than dynamic rules of computation, in which the computer learns from its prior errors. Moreover, so-called "neural networks" already allow computers to undertake pattern recognition. These are computer programs design to model the way that brain neurons process patterns. Again, highly oversimplified, these are programs that allow parallel rather than serial processing, and contain learning algorithms that allow the program to "learn" - that is, to reject choices available within the program. The program doesn't just find a solution - it finds the optimal solution (usually the solution that has the lowest cost).
Here's why I think Sunstein is right, and why the complex judgment in my hypothetical won't ever - in concept - be finally amenable to an AI resolution (my central observation), even though - in concept - the avatar lawyer is possible. Human brains supply the rules to the program. Whether it's merely induction or it's an artificial neural network that can replicate analogous reasoning through pattern recognition, we need to undertake an abductive process to come up with the rule we are going to give the computer, either close to the surface (as in my simple flow chart), or deep down in the midst of the neural network. Even if the rule is a second- or third-order learning rule, we need to make a judgment that is the best choice among various alternative rules for learning. This is the infinite regress that is the source of rule-skepticism. You decide to adopt Rule A as the optimizer for making a particular choice among possible patterns that could explain the visual data. What is the rule you used to adopt Rule A? Let's assume it was Rule A'. How did you decide to adopt Rule A'1 as opposed to Rule A'2? If it was a rule, Rule A'', how did you choose A"1 over A"2? At some point, you choose without a rule (hence, the rule-skeptics view that there's no Rule of Law, only indeterminacy and the exercise of power).
There's no reason why we can't, in theory, make a really sophisticated, and perhaps even human-seeming, judgment computer (the gray eminence that is the avatar of old Mr. Cravath, for example) that could make the decision in my hypothetical. It would assess the case law, calculate the probabilities of defect and their cost consequences, determine the business's risk averseness, correct for cognitive biases, and give us a "yes" or "no" answer to the question. But as long as it's digital, it will contain deep within its bowels, an inescapably brute judgment. What leaves us uncomfortable is our inability to confront the maker of that brute judgment.
*UPDATE: My son James, who also today suggested I was getting a haircut "under an illusion of agency" (you have to love a kid who can say that), tells me I have completely misused the idea of a virtual world avatar. Too bad.
*UPDATE-2: I have now seen the movie and James is correct. The correct concept would be "Robo-Lawyer," not Avatar Lawyer. And it is one spectacular movie.
With The Thanks Of The Court
The web page of the Ohio Supreme Court has this summary of a recent advisory ethics opinion:
[The opinion] addressed the following question: “Is it proper for a judge, at personal expense, to distribute bookmarks, imprinted with the judge’s name, picture, and a historic quote regarding jury service, to jurors who serve in the judge’s courtroom?”
The opinion finds that the practice is permissible under the Ohio Code of Judicial Conduct, but cautions judges to thank jurors soon after their service ends and to “use a uniform method of thanking the jury that is in keeping with the dignity of jury service and the furtherance of the administration of justice.” Further, a judge should consider whether it is prudent to do so at personal expense rather than at court expense in the Ohio Elections Commission’s advice in Op. 89-4 that a public officeholder’s purchase with personal funds of items distributed to promote a possible future candidacy is a reportable expenditure pursuant to R.C. 3517.10.
The opinion may be found through this link. (Mike Frisch)
The Pennsylvania Supreme Court has disbarred an attorney who was suspended for two years in 1993 and never reinstated. Prior to the suspension, he had racked up a record of four informal admonitions and a private reprimand.
The suspension did not deter him. The Disciplinary Board found he "engaged in law-related activities and the unauthorized practice of law; managed the law practice of [an attorney], and supervised a legal associate in the law office; engaged in misconduct before the bankruptcy court that necessitated intervention by the court; and violated Orders issued by the bankruptcy court."
The testimony of the supervised associate (which included hearing Respondent use the false name "Dan McCluskey" on the telephone) was "revealing as to the breadth and depth of Respondent's misconduct."
Respondent's view: "...looking back, would I do anything different? I don't think so."
December 17, 2009
The Michigan Attorney Discipline Board has vacated a hearing panel order of reprimand and ordered that ethics charges be dismissed. The complaint had alleged that the attorney had committed acts or omissions in the representation of four clients over a 19 year period. The hearing panel had found that most of the charges were not proven but did find a violation of Michigan Rule of Professional Conduct 1.4(a). The conduct at issue had taken place in 1984 and 1985.
The board concluded that the finding could not be sustained for the "simple and inescapable reason that [the rule] and, indeed, the entire Michigan Rules of Professional Conduct, were not adopted by the Supreme Court until October 1, 1988." While the conduct may have violated former Canon 7, the attorney had not been charged under the Canons. (Mike Frisch)
Lavish Lifestyle, Disregard Of Tax Obligations, Warrants Suspension
The New York Appellate Division for the First Judicial Department has imposed a one-year suspension of an attorney for failure to file and pay state and federal taxes for almost a decade. The court noted mitigating factors:
The Hearing Panel conducted a hearing and respondent, represented by counsel, respondent's wife, and several character witnesses, including two of his former law partners testified on his behalf. Witnesses testified that respondent devoted thousands of hours to pro bono activities on behalf of his firm representing death row defendants and, as a Trustee, gave a great deal of time to and made substantial financial contributions to Skidmore College, his alma mater. Respondent also submitted a letter from a psychiatrist stating that respondent suffered from "an Obsessive Compulsive Personality Disorder", that caused him to attend to his work compulsively, but caused him to be careless about various personal matters, including those relating to health and finances.
In the within matter, while there are some mitigating factors, we find aggravating factors vastly more compelling. Specifically, while at his law firm and receiving a substantial income, respondent purchased a five bedroom house in New Jersey and a four bedroom house in Florida. He also owned a Lincoln Town car, a Nissan Mini Van, a BMW SUV, and paid for his children to attend private school. In addition, respondent lied to his wife by telling her that tax matters had been taken care of and did not notify his partners of the pending criminal investigation before resigning from the firm to take a position as president of two corporate entities engaged in energy operations in the Philippines. According to the Hearing Panel, his failure to inform his law partners was to insure collection of full compensation and early capital account distribution. We agree with the Hearing Panel's finding that the psychiatric claim is not credible.
While respondent's extensive pro bono work on behalf of defendants facing the death penalty and his dedication to his alma mater is commendable, it does not excuse his failure to file returns or pay taxes during this time. Although respondent has paid all the taxes owed to the State, and has worked out a plan with the Internal Revenue Service, the picture that emerges is that respondent, without any justification, and while enjoying a lavish life style, disregarded his tax obligations. Having considered all of the factors set forth above, we find, as we have found in Matter of Goldman decided herewith, that failure to file tax returns and pay taxes for an extended period of time in these circumstances warrants suspension.
This release from the New York County District Attorney's office notes that the attorney was a Kaye Scholer partner.
The court imposed the same sanction for similar misconduct in an unrelated matter. The suspension was appropriate where the money had been spent on gambling rather than a lavish lifestyle:
In the within matter, while there are some mitigating factors, we find aggravating factors vastly more compelling. Specifically, respondent, while receiving annual compensation in excess of $300,000 a year, spent substantial sums on his restaurant investment and engaged in a pattern of gambling on horses for over ten years. Particularly disturbing is respondent's failure to comply with the order of the sentencing court to establish a payment plan for about a year. He was unable to explain his noncompliance, attributing it to his memory failure due to his aneurysm. In any event, the picture that emerges is that respondent, without any justification, disregarded his obligation to pay taxes.
The mitigating factors are that there has been no suggestion that these actions in any way affected his law practice, that the brain aneurysm may have affected his ability to explain his actions, and that respondent has not enjoyed a lavish life style, as was the case in Matter of Clay, supra or Matter of Chervin, supra. He has also filed all delinquent returns, and is nowallegedly finallyworking out payment plans. Having considered all of those factors, we find, as we have found in Matter of Howley decided herewith, that failure to file tax returns and pay taxes for an extended period of time in these circumstances warrants suspension.
Posted by Jeff Lipshaw
I've been asked to teach our six credit contracts course here next year, and have been puzzling (far ahead of time) about book adoption and teaching philosophy. Contracts is the often the bane of the first year experience, and I am thinking about hitting the reasons head on.
I spent 26 years in practice, as a law firm litigator and then transactional partner, and then as the general counsel of two different companies. I have written fairly extensively on contract theory (perhaps teaching the course will be impetus to combining my various pontifications into a book), but I am generally disdainful of contract doctrine as a means of explaining what is actually going on in the business world. (See my article Models & Games, for example.) Although there are some admirable contracts casebooks out there that attempt to do so, if I don't use one, it will be a result of my concern that pushing traditional contract doctrine into a real business setting is a square peg in a round hole (the metaphor is apt for all sorts of reasons). You don't really teach the business world, and you don't really teach traditional doctrine.
No, were it not for the bar exam and inertia (i.e., Langdell was a contracts teacher), we probably wouldn't bother with most of contract law as we presently teach it. Or, as I have often said, practice is 5% doctrine and 95% interpretation; the course is usually 95% doctrine and 5% interpretation.
I've concluded instead that the way to approach the subject (and relieve some student angst at the same time) is to reject at the outset the idea that what they are learning maps on the real world. It is more helpful to think of contract law as most casebooks begin - with the idea of the objective law of contracts, or, as we say more explicitly in areas like partnership, the default rules upon which the legal consequences of a binding promise will be imposed on parties after the fact when indeed there is no subjective evidence of an intent to be bound at all, or legally, or on what specific terms. (As I have made clear in the past, I'm a skeptic on subjective intent altogether when even the interpretation of the contract is the subject of colorable litigation positions.) Hence, teaching the subject, by my way of thinking, requires a jurisprudential approach, one that says "what you are about to learn is a particular way of modeling human interaction." Said with more jargon, contract law may or may not map well onto the reality of private ordering, and the mistake most students make is to try to make the map work. No - an integrated law of contracts, if one exists, is a figment of the Langdellian or Willistonian or even the Corbinian or Llewellynian imagination, a way of trying to make unified sense of the whole of private ordering, whether that sense-making is by way of formalism or contextualism (or efficiency or the promise principle, to bring the debate forward in time).
Put otherwise, if the reality of private ordering is metropolitan Boston, contract doctrine is a map, based on the mapmaker's view of what is important. But you could have a road map of major highways, a topographic map, a detailed street map, a map of population densities, etc. This is merely one map, or several competing maps. (Think about the classical view of offer and acceptance, for example, versus the UCC's view. Does either one really map onto a singular underlying reality of the making of an agreement? Even "the meeting of the minds" is a metaphor (and, in my view, an unfortunate one)). (I think the Macaulay/Macneil relational contract school falters on this point, by the way. It gives up on the map altogether and tries to go straight to the reality of the relationship. That may explain the relationship, but it may not make for the best way to explain the law. I have a similar reaction to Omri Ben-Shahar's longstanding proposals (now with Lucian Bebchuk) on liability arising out of preliminary negotiations - we're trying to fine tune the map (or model) beyond its usefulness as a model.)
Finally, the difficulty with putting aside whatever sense of reality we might have, and reconstructing the rules of the model (or game?) on their own is a little like trying to master the rules of cricket without making analogies to baseball, or the rules of rugby without making analogies to American or international football. Let's say you are playing cricket, and you do something that cause the other team to cry "foul!" You have to make your argument why what you did was legal in cricket terms, not baseball terms. That doesn't mean there couldn't have been other ways to play cricket, or that the world would be better off if we interpreted the rules of cricket differently, but to win the argument we have to fashion it in a way that appears to be consistent with cricket. Contract law is the set of rules making up the objective contract litigation game, and some arguments based on those rules are cricket, and some are not.
Anyway, that's my current thinking. Responsible opposing (or helpful) views are always welcome.
The Review Department of the State Bar Court of California has recommended a stayed two-year suspension with 90 days of actual suspension and probation for two years. The charges arose as a result of "53 threatening and abusive voicemail messages to the successor administrator of [his father's] estate [from which the attorney had been removed as co-executor], the attorney for the administrator and the ex officio judge...who was responsible for overseeing the estate." The attorney had objected to a hearing judge's like proposed sanction, contending that the conduct did not involve moral turpitude, the communications were protected by the First Amendment, and that personal misconduct was not subject to discipline.
A "few representative examples" of the messages at issue are recounted in the opinion: "Kid [the ex officio judge], as long as you've got a fiduciary relationship with me, which you do, uou've got to talk to me, whether you like it or not, you little bullshit artist, and I'll fuck with you anyway I want to until you do." The judge got a restraining order that ended the calls.
The state bar court rejected the attorney's claims and stated:
To his credit, [he] has 24 years of discipline-free practice without a record of abusive conduct, and he now recognizes that he got "carried away" with the situation. Moreover, his behavior did not involve physical injury to another. We further observe that when faced with the Superior Court's order, he ceased his telephone harassment of the three individuals. But, by any measure, his conduct is "unacceptable from anyone in society and particularly reprehensible from an attorney." (quoting a 1991 case).
"Highly Specialized, And Requires Attention To Details And Deadlines"
The Oklahoma Supreme Court disbarred an attorney for misconduct in multiple instances in connection with an immigration practice. The court noted:
Based on the allegations admitted due to the respondent's failure to answer, and the testimony of the witnesses before the Professional Responsibility Tribunal, the charges against the respondent have been proven by clear and convincing evidence. The Tribunal observed that the majority of the May 1, 2009, hearing showed the effect of the respondent's actions and inactions on her clients. Eight witnesses testified and fifty-four exhibits were admitted into evidence. The grievances arose out of the respondent's immigration and naturalization practice, which is highly specialized, and requires attention to detail and deadlines. The penalties for late or incomplete filings are severe for the clients.
The Tribunal further observed that the practice is highly important to culturally diverse clientele because they have little or no knowledge of the law in this area and many have limited English language skills. Accordingly, they are completely dependent on their immigration lawyer to guide them through the regulations and laws regarding their immigration status. Many of these clients have limited resources to expend on legal services, and are at the mercy of their lawyer, whom they solely rely on to solve their problems relating to their immigration status.
The Tribunal concluded that the evidence revealed a pattern of abuse by the respondent, who would charge a fee for services before any were rendered, and then would either fail to render any service or would perform the service in a grossly negligent manner. She did not keep her clients apprised of their legal status or she would give them false information regarding that status. After the clients discovered the misconduct, the respondent did not return the file material to the clients or the new attorneys even after she had been terminated in her employment. She would not return any of the sums paid to her as legal fees when such a demand was made. Finally, she ignored all correspondence sent to her by the Bar Association, and appeared only when subpoenaed. Even when she testified under oath that she would respond to the grievances, she did not.
One Plus Two Equals No Relief
The New York Court of Appeals affirmed a conviction in the face of charges of conflicts of interest by one of two counsel in a criminal case. The court refers to counsel as "attorney number one" and "attorney number two." Mr. One was on the case from the start. Mr. Two joined the defense at trial. A wife of a key state witness accused Mr. Two of suborning perjury and bribery prior to the testimony of the witness. The matter was brought to the court's attention by the prosecutor.
The trial court allowed Mr. Two to stay in the case. Mr. One cross-examined the witness. Mr. Two handled the direct of the defendant. The defendant was convicted on weapons charges, acquitted of kidnapping and got a hung jury on attempted murder charges, which were later dismissed.
The court here concluded that the resolution of a conflict of interest is a mixed question of law and fact. The defendant was "fully informed of the potential conflict." There was record support for the trial court's conclusion "that defendant failed to establish that the conflict operated on the defense."
There is a dissent:
Where a defendant claims that his lawyer was conflicted, but the record contains no evidence of a conflict, that evidence must be supplied in a post-trial motion. But here, the record shows both the conflict and an error by the trial court in dealing with it, as the majority essentially concedes (...to address the issue on the record "surely would have been the better practice"). For me, the only difficult issue is what remedy for this error defendant is entitled to. I am prepared to hold that he is not entitled to a new trial, but only to a hearing on the issue of how, if at all, the apparent conflict affected his representation. But I find the majority's holding that he is entitled to no remedy indefensible. (citations omitted).
A Case of Metaphor Infringement? An Open Letter to David Wessel of the Wall Street Journal
Posted by Jeff Lipshaw
I was sitting this morning at breakfast, leafing through the Wall Street Journal (note to Rupert Murdoch: I like to have a place to read conservative viewpoints, but why in God's name do you give space to a hack like Karl Rove?), when a column on the global financial situation caused me to break into a James Stewart-like, "wull, wull, wull, hold on there just a darned minute!" In a column entitled "A Prozac Economy Has Its Costs," the economic editor, David Wessel (left), says this: "If we could find the economic equivalent of Prozac -- a cocktail of "financial stability" overseers, tighter restraints on banks, wise government rule to prevent market excesses -- would it bring a calmer prosperity or a less prosperous calm?"
Now I realize that only a masochist would read an article with the word "epistemology" in the title, but I, me, myself, did say this well before the metaphor of Prozac was a gleam in Mr. Wessel's eye, and it was in the abstract, so you didn't even have to download the damned thing: "I propose an analogy between medicine and law in the sense of 'regulatory technology.' If bubbles are the disease, then the analogy is to bipolar syndrome - exuberance, or even a little hypomania is okay on the upswing, but true mania is bad, as is the resulting swing to depression. Good regulation, then, would be something like lithium, which keeps us on an even keel."In a fit of pique (or is it a fitue of piq?), I dashed off an e-mail note to Mr. Wessel this morning as follows (in relevant part):
Dear Mr. Wessel:
I read your Prozac metaphor this morning with some amusement and even some mock anger. I have written an academic article (to be published in the Southern California Indisciplinary Law Journal) on the complexity of the financial crisis (epistemologically speaking), and I used the much better lithium metaphor.
I won't demand royalties for metaphor infringement, but at least give me credit!
I feel so much better now.
December 16, 2009
Goodman Advocacy, the web page of former West Virginia Bar Counsel Sherri Goodman, has a section called Tales From The Crypt. One anecdote in particular caught my eye as capturing the essence of what motivates one to serve as a bar prosecutor. Done for the right reasons (and free of the influence of the organized bar), to me this is God's work. Sherri's story:
A member of the Board of Governors once accused me of being heartless! Those who know me will be as shocked as I was. Who planted perennials and annuals in front of the State Bar Center several years in a row? Who tried to get a bird unstuck from the State Bar's three story drain pipe? Who spent a whole hour in an auditorium filled with alternatively sullen and smart alecky junior high school students on Law Day because some other coward backed out at the last moment?
What prompted this accusation was this: At the Board of Governor's meeting during the State Bar's annual meeting, a resolution was proposed to memorialize all the lawyers who had died the preceding year. This is a rather routine resolution that speaks in glowing terms of the deceaseds' contributions to the legal profession. This particular year I noticed the name of a lawyer whose law license had been suspended and had never been reinstated before his death. Moreover, the lawyer had actually been disbarred many years before and had been reinstated in a controversial Supreme Court decision, only to get a suspension ten years after reinstatement.
I merely brought it to the attention of the Board that this deceased lawyer had not been entitled to practice law at the time of his death and wondered whether he should be included with those other lawyers who justly deserved to be remembered. This sparked some debate which was concluded with one member saying, "The man is dead. SOME of us have a heart, and this lawyer should not be removed from the resolution."
The lawyer's name was duly included in the resolution, and I found it ironic to learn later on that at the time of his death, he was under a criminal investigation for misappropriation of funds as an executor of an estate. In cases like this, my heart was always with the clients, not the lawyers, however dead they may be.
Best holiday wishes to my disciplinary counsel friends around the country, who fight to uphold the integrity of our profession. (Mike Frisch)
Babes Off The Hook
Tort law fans will enjoy a decision of the Indiana Supreme Court involving the so-called "fireman's rule." The court discusses the history of Indiana law on the subject that begins with an 1893 case denying a cause of action to a fireman injured responding to a fire in downtown Indianapolis. Here, a police officer and his spouse had sued an adult entertainment establishment for injuries allegedly sustained in responding to a call concerning an unruly, drunk, underage patron. the court found that the suit had properly been dismissed:
In sum, [the] complaint alleged nothing suggesting that [defendant] Babes was negligent in any respect apart from the negligence that produced the emergent situation with the unruly patron. Without any such allegation, the complaint fails to state a claim against Babes in the face of the fireman's rule.
December 15, 2009
Behind Closed Doors
The Illinois Administrator has filed a three count complaint alleging that (1) the attorney went into a judge's chambers and, out of the presence of the judge's secretary, copied the judge's calender without authority, used the copy as part of a motion and lied to the judge about how he had obtained the copy; (2) solicited sex from an undercover officer; and (3) entered a jail facility to meet with a client, identifying himself as her attorney. According to the complaint, then:
Correctional Officer Melissa Pettus escorted [the client] to an interview room. Respondent insisted to Pettus that the door to the interview room be closed, telling her that leaving the door open would violate the attorney-client privilege. Pettus, after consulting with supervisors, complied with the request and closed the door to the interview room.
Correctional Officer Jay Hawks entered an observation room which was adjacent to the interview room; the observation room permitted a person standing in it to view the occupants of the adjacent interview room through a two-way glass partition.
In the interview room, Respondent began kissing and embracing [the client]. At one point he rubbed her back, and at another point he grasped her buttocks.
Hawks observed the above-described behavior from the observation room. As the intimate behavior continued, Correctional Corporal Tammy Powell entered the observation room. When she observed the conduct between Respondent and [the client] she entered the interview room and told Respondent that the visit was over.
Respondent used his status as [an] attorney to obtain access to [the client] for the purpose of having personal physical contact with her.
The complaint states that the lawyer represented the client in a divorce matter. She was being held on drug charges at the time of the alleged incident. (Mike Frisch)
No Agreement To Arbitrate
An attorney was hired as "of counsel" of another attorney under a one-year employment contract on November 1, 2005. The contract authorized discharge for cause and had an arbitration clause. The employment relationship had "issues" but extended past the fixed term. Eventually, the employed lawyer was discharged with notice given in August 2007. The parties disagree as to the reasons. The employed lawyer sued the employing lawyer on claims that included wrongful discharge. The employing lawyer moved to dismiss, invoking the arbitration clause.
The Washington State Court of Appeals, Division I held that the there was no basis to conclude that the lawyers agreed to extend the arbitration provision beyond the fixed term:
Where a fixed-term employment contract expires and the employee continues to render the same services provided under the previous agreement, a court will presume that the employee is serving under a new, implied contract having the same terms and conditions as contained in the expired contract. However, where it is clear that the implied contract does not have the same terms and conditions as the earlier agreement, there is no basis
to presume that the contracting parties necessarily renewed any specific term of
the prior agreement. Because the evidence in the record and the pleadings
herein establish that Judith Lonnquist and Reba Weiss did not completely renew
the terms of Weiss's written, fixed-term employment contract after Lonnquist
terminated it, there is no basis to presume that the parties subsequently entered
into an implied agreement to arbitrate Weiss's employment-related claims as was provided for in the terminated contract. Inasmuch as a court cannot compel litigants to arbitrate claims unless they agreed to do so, the trial court correctly denied Lonnquist's motion to compel arbitration. Accordingly, we affirm.
Fear and Learning - Cantering and Law School
Posted by Jeff Lipshaw
As those of you who tune in for what the ABA Journal quaintly refers to as my "off-topic" posts may be aware, I decided this summer to learn English style riding (horse, that is). Let me make this clear. Other than perhaps a ride on a carnival pony when I was little, my backside and a saddle had never been in any kind of intimate contact. (If you have spent much time in Ann Arbor, you'll appreciate the following Carnak style joke from one of our Christmas skits in the Dykema office. Answer divined by Carnak (waiving sealed envelope near forehead): "Gallup Park." Question (upon the opening of the envelope): "What does Jeff think are the gear shifting markings on a horse?") [Joke explanation for the uninitiated: Gallup Park is a municipal park that follows along the Huron River near the University of Michigan Medical Center.]
There are all sorts of analogies I could make here in terms of the learning process, but here I am about 17 lessons into this, and skiing is perhaps the best one. Just as you progress in the mechanics of skiing from snowplow to stem christie to parallel turns (at least the way we used to get taught), and accordingly gain the ability to ski steeper slopes (from green to blue to black), in riding you progress "walk-trot-canter" (that oversimplifies it, but not unduly so). It's hard to get too scared in a walk, but when a perky horse starts to trot for the first time, and you need to steer, control the pace, sit correctly, keep your heels down, keep your hands down and quiet, squeeze your upper legs, and keep your knees relaxed and your lower legs still, a certain panic may set in. It's like pointing your skis down the fall line the first time, and then losing it as you begin to pick up speed and panic.
So today was a watershed because I cantered for the first time. It's a little faster than a fast trot, but that's not the issue. It just feels really different. I was taught to get into the canter from a "two-point" position, which means that I'm trotting around the outside of the ring with my butt off the saddle, my back flat and looking up and outward (sort of leading with the chest, as it were), and my hands holding both the reins and the horse's mane. I then give the horse a kick aftwards (to the back) with the outside leg (which I understand is telling the horse to lead with the inside leg, which is correct), and then . . . holy moses (or words to that effect) - I AM GOING TO FALL OFF THE FREAKING HORSE! The natural tendency, akin to the fall line panic, is to curl forward which is exactly the wrong thing to do. If you relax, look up, and get "taller", it feels pretty smooth and controlled. The problem the first time is you don't know what it is going to feel like. I can report success, however. I did a nice canter down the long side of the ring, and then when I was later trotting in a two point (tapering off at the end of the lesson), the horse started to canter and I actually laughed as I brought her back to a trot and to a walk.
One of my rationalizations for spending all this time and money (other than the fact that I really enjoy it) was better to understand learning from a student's perspective. What really jumped out at me today was the relationship between fear and learning. Often what you need to do is counter-intuitive, or counter to natural self-preservation instincts. The first time is the hardest because you don't know what to expect, and the unknown is the most fearsome. This takes me back over thirty-three years, but I can recall just how terrified I was of getting called on in John Kaplan's criminal law class (I had never before spoken aloud in class among all these incredible smart fellow students and the professor who seemed to be able to tie minds in knots), or the fear before taking the first set of exams in the first semester (which, by the way, were after the holidays just to make it worse).
The fear sits out front like a barrier. (Think of the vibrations Chuck Yeager experienced before getting to Mach 1.) I don't think there is a significant difference between fear of physical injury and fear of embarrassment or public failure. I am far and widely known as a physical coward (think Woody Allen). You must push through it, because control, calmness, and the ability to function return on the other side.
Were Delays Inexcusable?
The New York Court of Appeals modified the determination of the Commission on Judicial Conduct that had sanctioned a judge for delays in moving matters. The court here rejected the judge's contention that the commission "lacks jurisdiction to intrude into matters of internal court administration."
The court stated that"[i]t still remains true that a judge's failure to promptly dispose of pending matters is primarily a matter for administrative correction...We now hold that lengthy, inexcusable delays may also be the subject of disciplinary action, particularly when a judge fails to perform his judicial duties despite repeated administrative efforts to assist the judge and his or her conduct demonstrates an unwillingness or inability to discharge those duties."
The commission must examine the context in which delay occurs to determine if it rises to the level of misconduct. The matter was returned to the commission for a hearing to determine whether the delays at issue were inexcusable. (Mike Frisch)
God Is Not A Witness
The Oklahoma Supreme Court has affirmed a conviction and death penalty in an horrific case in involving the murder of a student who had just completed her graduation requirements from the University of Oklahoma and was preparing to go home for the Christmas holidays. The court rejected a claim of prosecutorial misconduct in closing argument, as the prosecutor's brief reference to heavenly judgment was invited by the defense argument in the sentencing phase:
The prosecutor’s brief personal reflections about the forgiveness of God “were no more than an adversarial balance to Appellant’s positions on religion.” The argument did not, as Appellant hyperbolically contends, reassure jurors “that they, too, would be forgiven for imposing the death penalty;” nor did it “encourage the jury to follow biblical standards rather than the Court’s instructions."
The court described the defense arguement:
Defense counsel’s sentencing stage closing argument shared a personal anecdote of how he “lost a lot of friends when I became a death penalty attorney” and why his work as a capital defense attorney was important: “Because there has to be fairness before we kill—before the Government kills in the United States of America.” Defense counsel then argued that from his years of experience with capital defendants:
[T]hose [prisoners] who suffer most are the ones that have to think about what they’ve done. That’s why life without parole is such a serious and damning punishment . . . they know as the clock ticks away, that they’re going to meet their Maker. Everybody does.
Everyone in this courtroom is hurting, and everyone will leave here today, and will always hurt. [The prosecutor] indicated he had, I believe, a daughter that’s now 18. I have a daughter that’s 8 who’s a ballerina. This is the last time I get to speak to you on behalf of Anthony Sanchez. I ask you to focus on fairness and mercy. I don’t have much to offer you. But it is your decision, it’s not the world’s. I would make him think for as long as possible what he has done. He will meet his maker. But let that be on other people’s or God’s time.
The court warned:
Our decisions on this subject serve to warn that a prosecutor who calls upon Heaven to witness the State’s cause against the capital defendant will needlessly imperil the earthly judgment of the District Court. But the religious statements made by counsel for both parties here were brief and insignificant in view of the overwhelming evidence of aggravating circumstances, which clearly explain the jury’s verdict. We find no prosecutorial misconduct warranting reversal or modification of the sentence.