Thursday, December 24, 2009
The Supreme Court of Washington has rejected by a 5-4 vote a recommendation for disbarment and remanded the matter for a hearing. The attorney practices in Oregon and obtained admission in Washington in order to handle his mother's divorce from his father. The case led to disciplinary charges involving charges of instituting frivolous lawsuits disobeying court orders and related misconduct. On the day of the scheduled hearing, he sought a continuance for health reasons. The motion was denied and the matter proceeded in his absence. The court here found that the failure to continue the matter amounted to a violation of due process, requiring a new hearing.
A dissent would find no abuse of discretion in the denial the continuance under the circumstances:
Viewed in isolation, I would have sympathy for Fredric's plea that his health
prevented his appearance at his disciplinary proceeding and that he should be given another chance. Viewed in context, the hearing officer was fully justified in denying another frivolous motion brought only for the purpose of delay. This was Fredric's third request for a continuance on a hearing that had already been delayed two years. Fredric's attempt to delay was not limited to his own discipline case; the record (which the hearing examiner was well aware of when he denied the motion for a continuance) establishes a long standing pattern of delay through myriad tactics, including the filing of frivolous motions for reconsideration and appeal, failing to properly serve documents, refusing to appear for depositions, refusing to produce documents pursuant to orders, and numerous other excuses for his or his client's failure to comply with rules and orders of the courts. These excuses have included automobile collisions, office moves, press of existing motions, a sick mother, and the birth of a child.Any one of these excuses might deserve judicial sympathy. But Fredric has
an unprecedented record of engaging in abusive and vexatious practices by filing baseless lawsuits and endless motions and appeals (often in direct violation of court orders) in courts up and down the West Coast.
The dissent quotes two judges who were involved in the litigation. The first judge calls the behavior an "indescribable abuse of legal process." The second judge laments that "the unwarranted grief and expense it has spawned, are an outrage." The dissent notes that the lawyer has not challenged by findings of misconduct. (Mike Frisch)
The District of Columbia Court of Appeals has issued its decision in the litigation between Douglas Rosenthal and his former firm Sonnenschein Nath & Rosenthal. The case involves a dispute primarily over fees for representation against Libya arising out of the destruction of Pam Am 103 over Lockerbie. The trial court had awarded Rosenthal $3.7 million in compensatory damages. The firm won an award against Rosenthal and his new firm for tortious interference.
At issue were claims for compensatory damages for two periods of time. The court held that the jury was presented with sufficient evidence that the firm had been "unevenhanded and thus unreasonable" in setting compensation for the second period. Rosenthal's retirement did not preclude him from suing the firm. The evidence was insufficient to award punitive damages against the firm.
The court remanded for a new trial on compensatory damages for the second time period. and reversed the award to the firm on the tortious interference claim. Rosenthal was given the option of a new trial on compensatory damages or accepting an award as reduced by the court's opinion.
The decision can be accessed through the court's web page (Rosenthal v SNR) and was decided today. (Mike Frisch)
Wednesday, December 23, 2009
Stung by criticism that Avatar is "all effects" with pedestrian plot and dialogue, James Cameron announced today that he is joining forces with the Merchant-Ivory team on a 3-D remake of The Remains of the Day. In the new version, with a script to be written by Cameron and Ruth Prawer Jhabvala, Stevens, the repressed butler of the original, will become an android in service to Darth Darlington on a space station near Alpha Centauri, and like the original, struggling with an emerging consciousness. Andy Serkis, who played Gollum in The Lord of the Rings, will play a computer generated Stevens, with a voice-over to be provided by Anthony Hopkins. Helena Bonham Carter will reprise her Planet of the Apes tour de force, taking over the Emma Thompson role as Miss Kenton, a primate hired as housekeeper for Darth Darlington, to be played by Ian McKellen.
The film will culminate in a typically Cameron-esque action sequence, with Stevens being subjected to the Turing test by the Klingons, Romulans, and Federation representatives who have gathered at Darlington Station to discuss the impending galactic war between the forces of foundationalism and those of post-modern indeterminacy. Daniel Dennett, Roger Penrose, and Stanley Fish have been retained as script advisors.
Sets are currently being constructed in New Zealand, with the opening anticipated for summer, 2011.
[This parody was brought to you by Jeff Lipshaw, and has nothing to do with law, except that it represents one form of procrastination from grading, and reflects one habitual over-thinker's reaction to some of the over-thinking that has gone on with respect to a sci-fi movie, which the over-thinker happened to love.]
From the web page of the Massachusetts Board of Bar Overseers is the following summary:
On June 19, 2008, the respondent was convicted in Dedham District Court of negligent operation of a motor vehicle in violation of G. L. c. 90, § 24. The respondent had been involved in a long-term dispute with his neighbors over a right of way, and the negligent operation arose from his driving his car on the lawn of one of the neighbors when a member of the household was in the yard. The respondent claimed the lawn was part of the disputed right of way. The respondent was sentenced to eighteen months of supervised probation with conditions that he not contact the neighbor’s family involved in the criminal conduct and complete an anger management program.
Bar counsel filed a petition for discipline alleging that the respondent’s conduct violated Mass. R. Prof. C. 8.4(b) and (h). The respondent filed an answer admitting to the allegations of the petition for discipline. The parties agreed that a public reprimand was the appropriate sanction. On October 19, 2009, the Board of Bar Overseers voted to sanction the respondent by a public reprimand.
The case is Matter of Simoni. (Mike Frisch)
The South Carolina Supreme Court has vacated and remanded a judgment in a home foreclosure matter. The problem? The presiding master was unable to attend the hearing and had signed the judgment presented by counsel later:
We categorically reject [noteholder] LaSalle's contention that the absence of the judge at the hearing was a harmless error. The law recognizes two kinds of errors: trial errors and structural defects. The former are subject to "harmless error" analysis while the latter are not. In State v. Mouzon, this Court quoted a leading United States Supreme Court case, Arizona v. Fulminante, 499 U.S. 279 (1991), in explaining that "trial errors  are subject to harmless error analysis"; however, "structural defects in the constitution of the trial mechanism  defy analysis by harmless error standards." 326 S.C. 199, 204, 485 S.E.2d 918, 921 (1997).
[Trial errors] occur during the presentation of the case to the jury, and may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt. Structural defects affect the entire conduct of the trial from beginning to end.
Id. at 204, 485 S.E.2d at 921 (quoting Fulminante, 499 U.S. at 308-09) (internal citations and quotation marks omitted). See also Sullivan v. Louisiana, 508 U.S. 275, 282 (1993) (explaining deprivation of the criminal defendant's right to a jury trial, "with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as 'structural error'").
We hold that the absence of a judge at a court hearing is a structural defect. The Court is troubled by LaSalle's trial counsel's efforts to proceed without a presiding judicial officer as well as the submission of the erroneous proposed order to the judge. The purported hearing was a nullity, and the resulting order must be vacated. The judge's absence from the hearing deprived the Davidsons of the opportunity to be heard and, thus violated their constitutional guarantee of procedural due process.
The same judge may hear the case:
The final matter we address is the Davidsons' request that we remand the case to a different judge. We decline this request. While the execution of LaSalle's counsel’s proposed order was unfortunate, we discern nothing in the record warranting mandatory disqualification of this Master. Moreover, had the Davidsons filed a motion asking the Master to reconsider his order, we believe the Master would have vacated the order and conducted a proper hearing, as he attempted to do after jurisdiction had transferred to the appellate court. While it may be difficult to understand how an order was issued from a hearing that never happened, we put the matter into context by recognizing the enormous caseloads handled by our state's excellent Masters, especially with respect to mortgage foreclosures.
An Illinois Hearing Board has recommended a five-month suspension of an experienced attorney who has not been subject to prior discipline. In one matter, the attorney represented a longtime friend in an employment discrimination matter. He was found to have persisted in the prosecution of a frivolous claim:
After reviewing Respondent's submissions to the district and appellate court, we conclude that his numerous attempts to challenge the court's jurisdiction, his shifting theories and his failure to distinguish authority cited by [opposing party] URA all point to one conclusion: Respondent was unable to mount a legitimate argument to challenge the court's authority to dismiss Greviskes' complaint and therefore adopted a strategy of frivolous and vexatious litigation. His lack of a valid position should have been apparent to him when he first reviewed the cases cited in URA's motion to dismiss, as well as when the court explained its position at the hearing on his motion to dismiss. Without regard to the court's decision or relevant authority, he filed another motion and a post-trial brief in which he continued to attack the court's jurisdiction. His failure to distinguish URA's relevant case law, along with his persistence in raising an issue already ruled upon by the district court, are evidence of his lack of good faith in filing the documents. Rather than apprising the court of the state of the law, he engaged in tactics which could have no purpose other than to delay the proceedings and harass his opponent.
We have reached the foregoing conclusions on the basis of Respondent's filings, but also note our complete agreement with the district court and appellate court's conclusions regarding Respondent's presentation of positions that have no merit, and find further support for our decision in those opinions. (citation omitted) The fact that neither the district court nor the Seventh Circuit imposed sanctions directly against Respondent does not change our view. As noted by both courts, Respondent's conduct clearly played a role in their determinations that Greviskes was responsible for defense counsel's attorneys' fees.
He also had responded to a letter from opposing counsel raising concerns about forged documents by suing counsel and the client. That suit was deemed frivolous as well.
In an unrelated matter, the lawyer made claims about his opponents and the judge that the hearing board found had violated ethics rules. As to the judge:
Respondent's accusations extended beyond the conduct of his opponents; they also encompassed the court's actions and rulings. After Judge Dolan announced his ruling in favor of Cerniglia and against Pezza, Respondent filed a post-trial motion requesting the court to set aside the judgment or grant a new trial. His motion accused the court of allowing the introduction of false evidence, manipulating and ignoring the evidence, failing to apply the law, acting as an advocate for the defendant, holding a Himmel hearing in order to exonerate the defense attorneys, and engaging in judicial conversion. Respondent continued to make the same assertions in subsequent filings relating to the post-trial proceedings and, following the denial of his motion, he repeated the allegations in a motion for substitution of judges. That motion was also denied.
Judge Dolan, whom we found to be credible, denied he ever ruled contrary to the evidence, accepted false testimony, deliberately failed to apply or understand the need to apply the rules of evidence, overlooked any significant evidence, manipulated evidence to favor one side, or was biased in favor of Cerniglia. In addition to Judge Dolan's testimony, we have his written opinions which demonstrate a careful consideration of Respondent's various arguments and sound reasoning in the disposition of each issue, including a ruling in Respondent's favor on defense counsel's motion to strike Respondent's post-trial brief. The record in this case does not support Respondent's claim that Judge Dolan was biased in favor of Cerniglia, attempted to manipulate the evidence, or made rulings without regard to the law, nor did he present legal authority to support his claims. (citation omitted)
Respondent's statements concerning Judge Dolan went beyond vigorous advocacy or a disagreement with the court's rulings, and reflect an unwarranted and reckless assault on the court's competence, objectivity and integrity. Whether or not Respondent was acting out of frustration with what he perceived to be judicial bias, as suggested by his counsel, his overwrought and baseless accusations cannot be excused. Respondent's proper recourse, as he well knew, was to preserve his objections and present a well-documented argument in a professional manner without insults or unsupported accusations of judicial dishonesty.
As to sanction:
...we conclude that a suspension of five months is warranted and will serve the purposes of safeguarding the public, maintaining the integrity of the profession and protecting the administration of justice from reproach. Because Respondent has practiced more than thirty years without being subject to any other disciplinary orders and because his conduct did not involve dishonest acts, we do not believe that an additional period of suspension is necessary to achieve the objectives of the disciplinary process. On the other hand, by interfering with the smooth function of the judicial process, placing burdens on his opposing counsel, and causing reputations to be jeopardized, his pattern of conduct had a negative impact on the integrity of the legal profession and the administration of justice.
We believe that a five month absence from the practice of law will provide Respondent with the time he needs to reflect upon his actions and consider ways to change and control his behavior. In addition, a review of professional ethics rules will aid him in his introspection and reformation, and therefore we make completion of an ethics class a part of our recommendation.
The hearing board also found that another charge had not been proven. (Mike Frisch)
Tuesday, December 22, 2009
A recruitment firm sent an unsolicited resume of a lawyer who specialized in Korean practice to a New York law firm. The firm had no Korean practice in its New York office but later hired the applicant for its Washington office through a different recruiter. The first firm sued for a fee. The New York Appellate Division for the First Judicial Department affirmed the dismissal of the suit:
As it is undisputed both that the New York partner did not know that the candidate was being interviewed by the Washington office, and that the Washington office did not know prior to interviewing the candidate that his resume had been sent to the New York partner, the required assent necessary to establish an implied contract cannot be inferred. There was no "meeting of the minds" (I.G. Second Generation Partners, L.P. v Duane Reade, 17 AD3d 206, 208 ) sufficient to establish an implied contract pursuant to which defendant agreed to pay plaintiff a fee even if there was no causal connection between plaintiff's submission of the candidate's resume and defendant's decision to interview and hire the candidate.
The New York Appellate Division for the First Judicial Department affirmed the dismissal of claimed causes of action against an auction house with respect to the sale of particular items:
This action arises out of an auction of memorabilia from the Star Trek television series and motion pictures. Contrary to plaintiff's contention that defendant Christie's had represented the Commander Data uniform to be one of a kind, no such representation was ever made in the auction catalogue. Significantly, the Conditions of Sale, which plaintiff accepted in order to be allowed to participate in the bidding process, expressly declared that "all property is sold as is' without any representation or warranty of any kind by Christie's or the seller." UCC 2-316(3)(a) recognizes that "unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like as is' . . . which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty."
Even assuming there was a breach of contract or warranty as to the other two items purchased by plaintiff at the auction, he was, under the Conditions of Sale, contractually precluded from pursuing the massive recovery he now demands. The only remedy available to him thereunder would be a refund of the sale price(s) upon return of the item(s), a limitation generally permissible in contracts for the sale of goods (see UCC 2-719[a]).
A recent judicial ethics opinion from Oklahoma:
Question(s): Should a judge who is presiding over a class action lawsuit, for a period exceeding three years, and during which interim the judge applied (unsuccessfully) for appointment to an appellate court, recuse from the final hearing to approve settlement of the suit and fix attorneys fees, where the judge believed that some of the attorneys in the case may have made recommendations to the Judicial Nominating Commission on behalf of the judge?
Facts: 1. While presiding over the case the judge made application for a vacant position on the Court of Civil Appeals.
2. One of the judge’s supporters for the position recommended he contact several lawyers to solicit their support, including two lawyers who were attorneys in the class action suit.
3. The judge, feeling it was inappropriate to contact these lawyers who were attorneys of record in the pending case, did not contact them but thought perhaps the lawyers who had suggested them had done so and that perhaps they had made contact on his behalf. In fact, the attorneys realized that such conduct might raise ethical questions and did in fact make no contacts.
4. The judge has disclosed the matter to all parties in the case, and it was only after such disclosure that the attorneys advised him that they had taken no action.
Answer(s): Not required per se.
Discussion: Canon 2 provides "a judge should avoid impropriety and the appearance of impropriety in all of the Judge’s activities."
Canon 3 E (1) provides "a judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned…"
Even had the attorneys made a recommendation on behalf of the judge, automatic recusal would not be required. The question is analogous to one which we addressed in Judicial Ethics Opinion 2007-3 as to whether a judge is required to recuse from an attorney’s cases should the attorney have supported the judge financially, or otherwise, in an election campaign. We concluded that the judge was not compelled to automatically recuse and cited Pierce v. Pierce, 2001 OK 97, 39 P3d, 791, in which the Supreme Court held that the "mere fact of a lawyer’s contribution to a judge’s campaign does not per se require the judge’s disqualification when the lawyer comes before him"
We reiterate that Pierce teaches that the judge should disclose to the parties an on the record any information which the judge believes the parties or their attorneys might consider relevant to the question of disqualification, and if asked to recuse, act in accordance with District Court Rules regarding the same.
The South Carolina Supreme Court has dismissed one charge and issued a confidential letter of caution in a second matter in connection with disciplinary allegations "involving two methods used by Respondent to promote his services as a real estate attorney."
The dismissed charge alleged improper solicitation through the attorney's distribution of discount coupons for his services. He gave the coupons to realtors to display in their office lobbies and mailed them with cover letters directly to realtors and lenders. The charges were not that the coupons were unethical per se but rather related to the manner of delivery. The sustained charge involved his use of the words "expert" and "specialist" on the firm web page. The attorney had stopped the references when this allegation arose.
It is clear from the transcript of the hearing in this matter that Respondent researched the Ethics Advisory Opinions, that he was very cooperative with ODC, and that he made immediate efforts to make changes in his conduct when this disciplinary action arose. We agree with the Hearing Panel that dismissal of the allegation regarding distribution of the discount coupons is appropriate, and we issue this Letter of Caution, with a finding of minor misconduct, for Respondent's violation of Rule 7.4(b) for his inappropriate use of forms of the words "expert" and "specialist" on his website.
Monday, December 21, 2009
The Maryland Court of Appeals agreed with its Court of Special Appeals that a guilty verdict in a first degree murder case was a nullity because the jury was neither polled or hearkened:
As a matter of protocol, hearkening has been a standard practice in Maryland for more than 100 years, when a jury renders a verdict in a criminal case, Essentially, hearkening requires the trial court to inquire in open court, before the jurors are discharged, whether the jury agrees with the verdict just announced by the foreperson.
The talismanic language:
Hearken to your verdict as the Court hath recorded it. You say that [name of defendant] is guilty (or not guilty) of the matter wherefore he or she stands indicted, and so say you all.
The court majority held that polling the jury may be waived, but not both polling and hearkening. A dissent would hold that such circumstances would render the verdict a nullity only if the jury were discharged before the defendant was afforded the opportunity to request a jury poll or had objected to the failure to hearken. (Mike Frisch)
An unusual bar discipline matter involves an attorney admitted in 1966 who practices primarily in Colorado. The attorney suffers from serious health problems. He practiced in a tw-person form with his wife. He was responsible for operation of the firm's trust account. When the State Bar received an overdraft notice, the matter was docketed for investigation against the spouse. The attorney prepared the responses and the spouse was censured and placed on probation. Thereafter, the bar investigated the attorney.
The hearing officer accepted a conditional admission the the attorney failed to make reasonable efforts to assure the firm managed the trust account in a manner that conformed with ethical obligations and failed to properly supervise staff. The bar conditionally dismissed charges that the attorney had misled it in connection with the investigation of his law partner spouse. Although the lawyer had previously completed diversion for trust account violations, he is 77 years old and appeared at the disciplinary hearing with an oxygen tank to assist with breathing.
The hearing officer accepted the parties' recommended 60 day suspension with resignation upon reinstatement within 10 days: "The agreement reached by the parties is (according to counsel) perhaps the first of its kind. The reinstatement application, if any, would be heard according to...the same procedures as for members who have been summarily suspended. This means the application would be heard by the State Bar Board of Governors, not by the Supreme Court's Committee on Character and Fitness and then the Supreme Court. However, the Rule protects the public because the burden is on Respondent to establish the grounds to be reinstated." (Mike Frisch)
Posted by Jeff Lipshaw
Jacqueline Lipton over at The Faculty Lounge observed that the self-described teaching style au courant in FRC interviews these days is something called "soft Socratic." Here's Jacqueline's description: "When asked about their 'teaching style', candidates invariably answer 'soft Socratic'. In other words, they like to create a welcoming atmosphere in the classroom where students feel free to participate, but also be sufficiently rigorous in calling on students to ensure that everyone is prepared." Others have chimed in, including Ilya Somin at Volokh Conspiracy, Dave Hoffman at Concurring Opinions, Steve Bainbridge, and my co-author, Larry Ribstein, (the latter three all in the context of teaching corporations, and with PowerPoint, and the last with a plug for an excellent unincorporated business entities casebook.)
I've converted to what I think is "soft PowerPoint," which I define as projecting those things that I know I would have put on the whiteboard anyway - the class outline and schematics of the cases, for example. I've even adopted the "sidebar" outline approach now seen on ESPN SportsCenter. This is a concession to my innate randomness. When I started at Wake Forest in 2005, I imported the wholly non-visual style of my own teachers from the second half of the Seventies. I moved to having non-PowerPoint "class outlines" (formatted in Word, and posted on TWEN) so that the students would have a sense where we were in the material, and now, to some extent, keep that scrolling on the left side of the schematics or bit of statutory language that may be on a slide at any given time.
But I'm still not sure what "soft Socratic" is, as opposed to my style, which I would call "interrogative lecture," something I think falls between whatever soft Socratic is, and the incredibly annoying "anyone? anyone?" style of Ben Stein in Ferris Bueller's Day Off. I distinguish this from true lecture, which I think of as non-interrogative or non-interactive, and the best of which have wonderful narrative structure, a beginning, a middle, and an end, with a pace and an organization that bring you along from one place of shared knowledge to another of greater understanding.
I think there are two aspects of classroom manner that make the teaching Socratic of any kind. First, the teacher calls on students (rather than relying on volunteers). The method of calling, and the amount of warning (e.g. panels, going in alphabetical order, working across the seating chart) don't matter - if you call on students other than volunteers, it's Socratic. Second, whether or not, it's "soft," there's a certain amount of squirm that the teacher is willing to allow the student to endure. It may be a nanosecond of squirm, or it may be an extended squirm, but there's squirm. In my view, there's a third element to traditional "hard" Socratic method, but I'm not inclined to make it a sine qua non, because it usually disappears in "soft Socratic": the progression of questions from the statement of the facts of the case, through the court's holding, to a series of increasingly minor variations in the fact pattern, to the point at which the viability of the rule of law announced in the case, at least as a matter of analogical reasoning, falls away. The primary pedagogical purpose is to impart the understanding that in the common law the court's holding and the facts are inextricably linked, and to test the power of the analogy that supposedly connects the thread of the law as it progresses from case to case. (I take no position in this blog post as to whether that's a load of hooey, but I will say that the notion of a case being "on all fours" depends on precisely this relationship. Moreover, if you think about the "law" being taught, say in 1910, which I'm positive was overwhelmingly case law versus statutory interpretation or any kind of "law and..." (even at "elite" schools), it's not surprising that it might well have worked!)
As I said, I wouldn't call what I do soft Socratic, because over the past several years in upper level courses (the only ones I teach presently), I have gradually eliminated, in roughly this order: (i) cold-calling; (ii) "on-call panels"; (iii) calling on people at all; and (iv) finally, the seating chart (in favor of name cards). (I'm teaching contracts next year, so I'm considering all of this for its application to the first year, or at least the first semester.) Nevertheless, I still pounce around in moderately manic style, often posing rhetorical or not so rhetorical questions, and often staring with puppy dog eyes at a student or two, begging for an answer if for no other reason than to remind me I'm not talking to the wall. I have a hard time calling that a "lecture" (see above). My primary objection to any kind of Socratic method is the result of my experience as a student and as a teacher. As a student, when others were in the throes of Socratic exchange, I recall drifting off to more pleasant thoughts, writing sarcastic comments in the notebook of my friend sitting next to me, or turning to the only redeeming aspect of The Stanford Daily, the New York Times crossword puzzle (so much for the evil of Internet surfing). As a teacher, not only do I see my own students doing the same, but it strikes me as a terrible waste of time to drag whatever teaching point I want to make out of the poor kid.
Having said all that, I do indeed on occasion go into "what if" mode, with a series of questions changing the facts just a little each time, to make precisely the point about the relationship of facts, law, and policy that I believe was the basis for the institution of Socratic method at the outset. I just don't do it by calling on students or making them squirm.