Saturday, February 7, 2009

Sully (Hero) and Andy (Goat) and the Silliness of Sufficient Reason

Posted by Jeff Lipshaw

To quote the Stanford Encyclopedia of Philosophy entry on Leibniz, the principle of sufficient reason is "that the claim that nothing takes place without a sufficient reason means that nothing happens in such a way that it is impossible for someone with enough information to give a reason why it is so and not otherwise."  That's pretty mundane stuff if what you are assessing is the physical world.  What made Voltaire mock Leibniz (as Dr. Pangloss) was the additional fillip of metaphysical sufficient reason.  That is, 200pxgottfried_wilhelm_von_leibniz if somebody suffers or somebody succeeds, it is because there is a reason (namely, God) and this is the best of all possible worlds.  That's a different way of saying not only does the world operates as it does for a sufficient reason, but the world also operates as it ought to, and also for a sufficient reason.

Whether we think about it or not, we all grapple with sufficient reason when faced with coming to terms with great fortune or misfortune.  Captain Sullenberger is a hero for his perfect water landing just off the West Side Highway and 50th Street, and I wouldn't for a minute deny him the adulation.  But he was also damned lucky, as all the accounts tell us.  Nevertheless, just as we rebel against the idea of random misfortune (doesn't the world make a lot more sense if, when you hear that somebody has lung cancer, the answer to the next question, "is he/she a smoker?" is "yes"?), we don't like the idea of random fortune either.  Sometimes all the models we construct for air safety work (most of the time, by the way), and sometimes they don't.  Sully made a bet on the Hudson over Teterboro, and it paid off.  We'll never know what would have happened in the other possible worlds in which he decided to go for New Jersey.

This morning, Joe Nocera in the New York Times calls on the usual suspects (my friend Steve Davidoff as well as Dale Oesterle of our sister Business Law Prof Blog) to try to derive sufficient reason out of the current status of Dow Chemical's attempt to acquire Rohm & Haas.  I used to be in the chemical business, so let me make the appropriate analogy between Andrew Liveris (as synecdoche for Dow) and Sully.  R&H is the best pure specialty chemical company in the world.  What does that mean?  There are commodity chemicals and specialty chemicals.  Commodity chemicals are substances like benzene or chlorine in which there's no trick, no premium, no patent, no nothing.  The only way to make money in commodity chemicals is to be the lowest cost producer in the world.  That's why the only companies that make commodity chemicals are huge, Dow, BASF, DuPont, etc.  You make them in humungous plants in humungous volumes and then sell them at the market price.  Specialty chemicals, on the other hand, have high margins because there's something about them that is unique, either in terms of patents around the substance (not so common), or patents or know-how around making them effectively.  An example of a specialty chemical would be a drug intermediate that has to be made just the right way, or a plastic or fuel additive.  The history of the chemical business is of specialty chemicals that over the course of time turn into commodities.

As I said, R&H was the best specialty chemical company in the world, and it was a plum.  The reasoning as reported behind the deal, it seems to me, is unchallengeable:  we, Dow, will be better off if we jettison some of our commodity chemical business (to the Kuwaitis) and substitute a gem of a specialty business by acquiring R&H.  When faced with that decision, Liveris, his staff, and the Dow board have to consider at least three possible worlds, one in which R&H stays independent, one in which Dow acquires it, and one in which BASF acquires it.  There's also a pretty good analog to Sully in terms of time:  you have to fish or cut bait quickly.  As to Professor Oesterle's observation that the contract is seller-biased, well, yup.  If BASF was willing to buy R&H without a financing "out," that set the terms of the deal.  In other words, you pays your money and you takes your chances. 

The legal version of the principle of sufficient reason is that nothing happens in such a way that it is impossible for someone looking at the deal and the contracts not to give a reason why it is so and not otherwise.  Of course, Dow is in this situation as a matter of cause and effect in the real world because it signed that agreement, but legal sufficient reason imposes a metaphysical element as well:  there must be something about the contracts that explain why the world operated not just as it did, but as it ought to have.  That is, well, geez, if you sign an agreement without a financing out, what do you expect?  There's justice, and we can attribute blame.  That, of course, ignores another possible world, in which Liveris and others insisted on the financing out, R&H said "no thanks," BASF won the deal, and proceeded to eat Dow's lunch.  In aviation terms, Captain Andy, just as skilled as Captain Sully, turned the plane toward the Hudson, glided in smoothly, and just as he was setting it down, caught a wind gust, tipped the wing in the water, and cartwheeled down the river.

Nocera's contribution to sufficient reason is to look for deus ex machina - the god from the machine - who will swoop in and make everything right, even though the model of the world that is the game of the legal system has no solution other than to enforce or not to enforce its own rules.  Overriding those rules to make it this all come out to somebody's idea of the right result would be justice, the possible world in which everything turns out to be as it ought to be.  Maybe justice, however, is just a figment of the principle of sufficient reason.

February 7, 2009 in Law & Business | Permalink | Comments (2) | TrackBack (0)

Friday, February 6, 2009

Stalking Conviction, Probation Violation Draws Suspension

The Louisiana Supreme Court imposed a suspension of one year and one day of an attorney who was convicted of misdemeanors offenses of making threatening telephone calls and stalking.  The attorney had violated the probation that was ordered as a result of the conviction by threats against her ex-husband and his new wife. The attorney also had been convicted of an alcohol-related driving offense. (Mike Frisch)

February 6, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Charging Lien

The West Virginia Supreme Court of Appeals reversed and remanded a determination to disallow the assertion of a charging lien by an attorney who had been discharged in a personal injury case. The course of representation had a convoluted history with several counsel terminated after the original lawyer, who had asserted the claim at issue:

The rationale for permitting an attorney to bring an attorney's charging lien is simple: “Parties to a suit accepting the services of an attorney, with knowledge thereof, as the services are performed from time to time, and in the absence of any agreement for gratuitous service and circumstances from which gratuitous service would be implied in law, are liable therefor.” Syl. pt. 1, Cecil v. Clark, 69 W. Va. 641, 72 S.E. 737 (1911). See also Syl. pt. 2, in part, Security Nat'l Bank & Trust Co. v. Willim, 155 W. Va. 1, 180 S.E.2d 46 (1971) (“The general rule is that the creation of a relationship of attorney and client by contract, expressed or implied, is essential to the right of an attorney to recover compensation from one for whose benefit the attorney claims to have rendered legal services.”). As such, “[a]n attorney's charging lien for his fee is confined to the judgment or fund recovered by him as attorney[.]” Syl. pt. 2, in part, Hazeltine v. Keenan, 54 W. Va. 600, 46 S.E. 609 (1904). Correspondingly, “[a]n attorney has no lien upon a fund which he is not instrumental in creating, and which never came to his hands.” Syl. pt. 4, Schmertz & Co. v. Hammond, 51 W. Va. 408, 41 S.E. 184 (1902).

      From these authorities, it is clear that GBW [the law firm] had the right to file an attorney's charging lien against Mr. Trickett's settlement proceeds to recover its unpaid attorney's fees that were incurred before Mr. Trickett discharged Mr. Wigal as his counsel. Given the lengthy and convoluted procedural history of the underlying lawsuits, it is apparent that Mr. Wigal's representation of Mr. Trickett contributed in some measure to the ultimate settlement of those actions, which settlement the circuit court ultimately accepted in its February 18, 2004, enforcement and dismissal order. The question remains, however, as to whether GBW was permitted to bring said charging lien in the underlying litigation, as it attempted to do, or whether GBW was required to file its lien in a separate proceeding, as found by the circuit court.

(Mike Frisch)

February 6, 2009 in Clients | Permalink | Comments (0) | TrackBack (0)

Failed Probation

An attorney who had been privately admonished and placed on probation for two years last October was immediately suspended by the Delaware Supreme Court. The attorney had failed to respond to an order to show cause as a result of inquiries from the Office of Disciplinary Counsel (ODC). The court directed the ODC to file for the appointment of a receiver to oversee the suspended attorney's practice and directed the attorney to cooperate with the receiver. (Mike Frisch)

February 6, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, February 5, 2009

"White folks don’t praise you unless you’re a damn fool." Mississippi Judge Disciplined For Comments in Re-election

Similar in context to the suspension Mike yesterday reported from Louisiana involving a lawyer's racist comments, comes an opinion issued today by the Mississippi Supreme Court [found via Download 3z4251x5.pdf.] This one involves a judge and a much more severe sanction.  The Court, finding "willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute," removed the judge from office. [See update below.]  The key facts:

[W]hile campaigning for reelection as a county court judge for Leflore County, Judge Solomon C. Osborne spoke before the Greenwood Voters League, a predominantly African-American political organization. Portions of his speech appeared the next day in the local newspaper, The Greenwood Commonwealth. In an article entitled: “Osborne: Blacks not where we should be. County judge says progress has been made, more is needed,” the newspaper quoted Judge Osborne as stating:

White folks don’t praise you unless you’re a damn fool. Unless they think they can use you. If you have your own mind and know what you’re doing, they don’t want you around.

... Forty-eight complaints were filed with the Mississippi Commission on Judicial Performance ... regarding Judge Osborne’s comments.

Three dissenters would have given more weight to the judge's first amendment interests in political speech during re-election, not finding persuasive the majority's distinguishing of judge-protective precedent from the U.S. Supreme Court.  [Alan Childress, hat tip to Jane Hicks]

UPDATE AND CORRECTION:  Here is a follow-up at the Wall Street Journal's Law Blog.  In it, writer Nathan Koppel correctly notes that the Court stopped short of accepting the commission's recommendation of ordering that the judge not be allowed to hold office in the future.  The final sanction assessed was in fact a public reprimand, and while the majority felt removal from office would be appropriate, the judge had already resigned by that point.

February 5, 2009 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Bankruptcy Conflict Leads To Suspension

From a discipline case decided by the Oregon Supreme Court:

In this lawyer disciplinary matter, the Bar charged the accused with ethical violations in two separate matters.  In the first matter, the Bar charged that the accused violated conflict of interest rules in a bankruptcy case.  The trial panel concluded (1) that the accused did not violate DR 5-101(A)(1) when, although he had represented the debtor in a Chapter 13 bankruptcy proceeding, and was therefore an administrative creditor of the estate, he agreed to serve as special counsel to the estate when the bankruptcy was converted to a Chapter 7 proceeding; but (2) that the accused did violate DR 5-105(C) when, after the trustee in the Chapter 7 case reached a settlement that was contrary to the accused's interest in collecting his fees, he resigned as special counsel and represented new clients in an appeal that challenged the settlement. In the second matter, the trial panel concluded that the accused violated DR 2-106(A) when he charged his client, Burch, for late fees in excess of the legal rate of interest, although no written agreement required payment of such fees, and when he charged Burch hourly fees for a trespass case, although a written agreement provided for a contingency fee.  In part because the accused had been disciplined previously, the trial panel recommended that he be suspended from the practice of law for 90 days.

The court affirmed the legal conclusions of the trial panel and imposed a 60-day suspension. (Mike Frisch) 

February 5, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Failed Conditional Admission

The recent trend toward conditional bar admission of applicants with a history of substance abuse problems raises interesting questions concerning the appropriate response to post-conditional admission problems. A recent report of an Arizona hearing officer recommends suspension of a year and a day, with two years probation if readmitted, of an attorney who had been admitted conditionally in 2006. He had failed to follow through with his appointed practice monitor, was twice arrested (but not convicted) for domestic violence, failed to attend mandatory counseling sessions and moved to Utah without notifying the Bar. He is now incarcerated in Utah.

He also had failed to appear in court for a client (due to his incarceration).

The hearing officer viewed the big picture:

...he has emotional as well as alcohol addiction issues. [He] was very candid and admitted that he, right after being admitted to the Bar, tried to go it alone in a solo practice with no support and no assistance. After a period of nine years of sobriety, the stress of providing for his family as well as the stress of running a solo practice became too much for [him] and he resumed consuming alcohol. This led to altercations with his wife, which...caused him to have run-ins with the law. Once [he] fell off the wagon, he not only did not take care of his personal affairs, he did not keep the Bar appraised of his address or respond appropriately when contacted by the Bar.

The proposed sanction was imposed pursuant to a settlement agreement with the Bar. (Mike Frisch)

February 5, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Rat As Free Speech

A municipal ordinance that prohibited balloon-type inflated displays for the purpose of attracting the attention of pedestrians and motorists was held to be an unconstitutional infringement of free speech rights by a unanimous New Jersey Supreme Court as applied to a large inflated rat. The rat, a symbol of union unrest, was flown in front of a Gold's Gym to protest the use of a contractor:

Non-verbal, eye-catching symbolic speech represents a form of expression designed to reach a large number of people. TheTownship's elimination of an entire medium of expresssion without a readily available alternative renders the ordinance overbroad.

(Mike Frisch)

February 5, 2009 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Some Real-World Pedagogy for Agency Law and Other Social Disabilities Arising Out of "Thinking Like a Lawyer"

Posted by Jeff Lipshaw

In an effort to demonstrate what "thinking like a lawyer" means (for better but, more likely, for far worse) to my agency, partnership, and LLC class, I sent the following e-mail today:

I don't usually obsess on matters of legal doctrine, but I noticed a couple of things this morning relevant to our class.

My dogs wake me up early (like 5:00 a.m.) so I'm up and out before a lot of people.  I was in the car at 6:35 a.m. to drop my shirts off at the cleaners and to get a Starbucks.  The Zoots at the Porter Square shopping mall opens at 7 a.m., but for registered customers like me it has a drop-off bin with a combination lock.  When I pulled up this morning, the store was 21792912thb dark, but there was a young guy sitting on the bench outside the store smoking a cigarette.  He was wearing the trademark purple Zoots jacket with a Zoots insignia on it.  I thought he was an employee waiting for someone to show up with a key to let him in.  I said, "Are you waiting for Zoots?"  He replied, "I am Zoots."  So instead of walking ten feet over to the drop-off bin, I handed him my purple bag.  He said, "Is Sunday after 5 okay?"  I said, "Yes."  Then I got in the car and drove off.

As I was leaving, I thought to myself, "What a great scam!  If you sit out here with a Zoots jacket, you can steal as much clothing as people are willing to leave with you."  Let's assume he had not been a Zoots employee, but he stole my shirts.  Under what circumstances would I have a claim against Zoots?  Think about this doctrinally (apparent authority and inherent agency power) as well as from a policy standpoint.  It may be one of those instances in which even the "least cost avoider" issue is puzzling.  If it really was a Zoots jacket (and it looked like one), maybe Zoots is the least cost avoider because it can control who gets its jackets, and thereby avoid the deception.  On the other hand, I could have, at some minimal cost of social embarrassment, said to the fellow, "I am a certified paranoid person (otherwise known as a law professor) who cannot confirm that you are indeed an agent of the principal Zoots, and therefore am questioning whether my assumption you are indeed an agent is reasonable.  Since I can avoid any issue merely by walking over to the drop-off bin and putting the bag in it, I may be the least cost avoider in this situation.  So pardon me if I seem to be a rude and untrusting doofus, but I'm throwing the bag in the bin."

This would be a variant on another clever scam I witnessed many years ago in Detroit.  The old Tiger Stadium in Detroit (now razed) was in a neighborhood called Corktown.  I think it was a lot like Fenway Park in that there was no official parking.  The area, unlike the Kenmore Square area, however, was a mix of single-family homes and warehouses, and the warehouses all had large parking lots.  So there were some private parking lots, and a lot of people made money parking cars in their yards.  If you were willing to walk a little, however, you could park in one of the warehouse parking lots if it was unlocked.    Some kids had the great idea of finding one of these lots, and painting a sign:  "Parking Easy In and Out $2.00" which was far lower than the going rate.  They hung out for about an hour before the game, collected $50 or $100 from the dupes, and then took off.  Now, if something happened to your car and you made a claim against the warehouse company, would it stand up? 

My intuition tells me there's a good agency claim in case #1 but not in case #2.

The litigation variant of the effect of being a lawyer on one's ability to act like a normal human being arose back when I was a litigator (through the 1980s).  I'd come home after a day of taking depositions and at least through dinner and well into the evening my conversation consisted of a series of staccato questions to my wife along the following lines: 

"So you went shopping today."

"What did you buy?"

"Is that all?"

"Anything else?"

"Anything else?"

"Anything else?"

"Now, let's go back to the first thing you bought. . . ."

(Clipart courtesy of clipart.com (c) 2009 www.clipart.com)

February 5, 2009 in Teaching & Curriculum | Permalink | Comments (1) | TrackBack (0)

Wednesday, February 4, 2009

TurboTax Error on Form 4562 Calculating Maximum Section 179 Expensing Depreciation Limitation?

Posted by Alan Childress

Wildly off topic but hopefully helpful to someone, as I am finding nothing on this by googling turbotax error form 4562 (or as Turbo Tax.) I want someone to be able to find this post if they suspect the same thing (to phone Intuit I started to go through their online hoops, plus possibly pay, and anyway there is an easy fix, so I quit that and posted this, fwiw).  Maybe it is just me and something I did wrong, but when I tried to expense an asset placed in service in 2008, it showed an "error" that I exceeded the limitation and could not expense it.  Since I teach, and this asset is less than $1500, I really doubted I exceeded any maximum set for the real world.  Had TurboTax made a mistake in disallowing this depreciation for me? (I am using this year's deluxe federal, for tax year 2008.)

So I went to the actual form that shows the limitation, at form 4562, and my Turbo Tax seemed to be subtracting $250,000 FROM zero [rather than $250,000 MINUS zero] to arrive at the "dollar limitation for tax year" on line 5.  If so, I am of course way below the maximum and I can expense the asset fully this year (and could expense another 248k to boot if I had such an asset).  So if it is setting the maximum you can expense at zero [as the rounded result of negative 250k], that disallows expensing anything.

The easy fix is to override line 5 and place it back to 250,000 by right click on the figure in the form itself.  Now it expenses it, in full, without showing an error alert.  That seems to be the correct result.  I hate overriding anything, but I am certain that there is no ceiling of zero or $1500 on 179 expensing.  You may have to override somewhere else where it asks the same limitation question for state purposes, because originally I got two error alerts and made two overrides--restoring the ceiling--before I forgot where the second one is. 

These should show up by running error alert, but the real risk is that your program may just disallow the expensing and not think it is an error. You may only get the error if you insist on taking the expense this year as a whole.  So unless I am off about all this, users of TurboTax this year (which I normally love but something as basic as the "from" versus "minus" switch scares me, and this year's version seems more confusing to me overall than previous ones) may want to be sure any asset they thought they depreciated via expensing under section 179 got done--they ought to double check that the full value is in fact taken off where it is supposed to be (in my case on schedule C, line 13, which it now is).

If I am wrong, Intuit, let me know and I will post an update here.  If someone else thinks theirs is zeroing out the ceiling too, please comment here.  I have already tried the interactive Ask Tina function and it does not understand me no matter how I phrase this.  It thinks I want to save my file and cannot.  One question I posed in 6 words she asked me to make shorter. I'll go try: Is 4562 fubar?  Here is a site reporting multiple customer complaints about [other] calculation errors in the program, including an apparently common one of real problems on the TY07 Massachusetts [Jeff!] and Rhode Island state forms transferring the wrong income info.  So I will double check everything this year the old fashioned way.

UPDATE:  Thank you to the VP of Intuit for his two helpful comments below.  I will double check his ideas and follow up.

February 4, 2009 in Blogging | Permalink | Comments (12) | TrackBack (0)

Judge Not

The Florida Supreme Court has issued an opinion advising Governor Crist that he may not issue a commission to a suspended lawyer for the position of circuit court judge. The suspended lawyer had been elected to the judgeship. In order to qualify for the judicial commission, a lawyer must be a member of the bar in good standing. The proposed appointee is subject to a 91 day suspension from practice effective January 2, 2009.

The disciplinary decision is linked here. (Mike Frisch)

February 4, 2009 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Stealing From Humane Society Draws Suspension

From the web page of the Ohio Supreme Court:

In a per curiam decision announced today, the Supreme Court of Ohio adopted findings by the Board of Commissioners on Grievances & Discipline that [the attorney] misappropriated funds from the Greene County Humane Society while serving as the society’s volunteer treasurer, and provided legal services to the humane society between 2000 and 2006, while [she] was serving as a full-time magistrate for the Greene County Domestic Relations Court.

The Court noted  that [the attorney] had served for many years as an unpaid advocate for abused and abandoned animals at considerable personal cost, and has since reimbursed the society for all of the missing funds. The Court held, however, that [her] multiple acts of misappropriation and submission of multiple false financial reports to the humane society board, in violation of the state attorney discipline rules that prohibit conduct involving fraud, deceit, dishonesty or misrepresentation and conduct that reflects adversely on an attorney’s fitness to practice law, called for an indefinite license suspension.

The majority opinion was joined by Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp.  Justice Paul E. Pfeifer dissented, stating that he would impose a two-year license suspension as the appropriate sanction for [the] misconduct.

The attorney had also practiced law while serving as a magistrate.

The court states:

Her acts and omissions laid waste to the fundamentals of integrity and trustworthiness that members of the legal profession are bound by oath to embody. And because she was president of the Green County Bar Association and employed as the chief domestic relations magistrate when her transgressions came to light, respondent's ethical breaches tarnished the legal system all the more.

The decision is linked here. (Mike Frisch)

February 4, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Dangers Of Suing A Client

A Maryland lawyer retained to handle a custody suit filed suit against the client for unpaid fees. The client counterclaimed alleging that the lawyer had breached the retainer contract by failing to properly represent him and sought the return of fees that had been paid. Counsel for the lawyer then sought but did not get arbitration of the dispute, as contemplated by the retainer agreement. The jury gave the lawyer nothing; the client won the return of almost $25,000 in previously paid fees.

The lawyer appealed, claiming that the arbitration provision should have been applied and that the breach of contract counterclaim was a veiled claim of legal malpractice. The Maryland Court of Special Appeals rejected these contentions, finding that the arbitration provision had been waived when the lawyer filed suit. Further, the court found that a breach of contract claim and remedy could properly be brought for asserted violation of the "express contractual obligations" of the retainer agreement.

The court quotes Mallen & Smith, Legal Malpractice: "Few modern actions against attorneys are for breach of contract" but holds that "This is one of them."   (Mike Frisch)

February 4, 2009 in Clients | Permalink | Comments (1) | TrackBack (1)

Suspension For Suggestion that Judge Was Racist

This seems to be the season of sanctioning lawyers for alleged false statements about judges. A Louisiana Hearing Board found that a lawyer had stated or implied that a judge was a racist in a recusal motion. The focus of the hearing appears from the recited testimony to have been on whether the suggestion was false. The board concluded that the charges were proven but notes:

[T]he unique facts and circumstances of this case suggest that an analysis of [the lawyer's] state of mind in the context of his offensive comments about [the judge] is in order.

The Committee is convinced that [the lawyer] genuinely believed that [the judge] has a particular problem with, or prejudice against him as an individual. It was clear to the Committee that the two gentlemen simply did not get along well. While not consistent with the objective facts established at the hearing, [he] subjectively believed that there was a racial component underlying some or all of the conflict that he perceived.

Sadly, the ugly specter of racial tension within the legal system is not a distant historical footnote. Despite heartfelt efforts by all sectors of the legal community, sometimes racial tensions run as an undercurrent through relationships in our system... As a person of color, he was one of a few, if not the only, African-American practicioner in the geographic area at issue... His sensitivity was real to him, and the Committee believes that it played an important role in driving his approach [to the cases].

The committee proposes a six-month suspension with all but 30 days stayed, with other CLE-type conditions and monitoring for two years. (Mike Frisch)

February 4, 2009 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Inconsistent Contentions

The Louisiana Attorney Disciplinary Board recommends the disbarment of an attorney who had taken for himself $50,000 of a personal injury settlement due to his firm. He had also violated the duty to appropriately safeguard entrusted funds and lied to his partners. The board rejected his claims of mitigation "[he] never claimed that mental disability caused him to convert the [client's] cash payments. Instead, his defense to the allegation of conversion was innocence,i.e., that he did not intend to permanently deprive his law firm of the case." His claim of of ADHD only explained his lies to his partners and did not cause the misconduct. (Mike Frisch)

February 4, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Clear Conflict

A report and recommendation filed last week in Arizona raises interesting questions concerning the level of appropriate sanction. The lawyer was retained by a client who operated a small day care out of her home. While in her care, her four year old son suffered a broken femur. When the injured child was interviewed a few days later, he was under the influence of codeine.

The client was considered a suspect in a possible case of child abuse. The lawyer was convinced that the charges were baseless. Armed with that conviction, he undertook the representation of the father and the injured child in addition to that of the mother. When police told him he could not represent the injured child due to a conflict, he pressed his claim of a valid attorney-client relationship. In the criminal case against the mother, he drafted two "witness statements" for the injured child and submitted them to the court. The prosecutor raised the conflicts issue but the criminal charges were resolved by a diversion agreement.

The attorney denied that there was any conflict and confirmed that he never advised the clients of potential conflicts or obtained a waiver. He contended that the charges were an "absolute and complete farce." As the hearing officer found: "The bottom line is that [he] feels that even though there is a loud and clear potential for conflict, he can proceed in the face of that conflict if he disagrees with the facts. This argument cannot [withstand] scutiny." The hearing officer found a clear conflict with real potential for harm to the child.

In the bar investigation, questions were raised concerning the fee agreement. The attorney claimed that the information was privileged. The hearing officer found that there was no written fee agreement in light of its non-production.

The conflict charge was premised on the problem of representing both the accused mother and the injured child. The hearing oficer found a significant risk that the representation of one client would materially limit the responsibility to the other.

As to sanction:

This is a difficult case, but not because of the facts or because there is any doubt about whether a conflict existed that required [him] to either withdraw or get written consent from his clients. The difficulty is due to [his] attitude toward the Bar in providing the Bar with the information that it had requested regarding hius fee agreement with the [clients], and primarily due to his conduct and demeanor during the hearing in this matter.

The hearing officer notes that an accused attorney is fully entitles to mount a forceful defense. the lawyer called the police officer a liar, the prosecutor incompetent, the bar prosecutor a "joke", "crap" and "clueless." Even the hearing officer got a dose of the lawyer's "clear and present anger."

So what's the sanction? The hearing officer, consistent with the Bar's recommendation, proposes a censure and probation for one year. The lawyer must submit to an assesment of his conflicts checking procedure (checking was not the problem here) and attend the Bar's "10 Deadly Sins of Conflict" CLE. (Mike Frisch)

Update: I have reworked the post in response to the comment.

February 4, 2009 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Tuesday, February 3, 2009

File The Appeal

The West Virginia Supreme Court denied habeas corpus relief to a convicted criminal defendant where disagreements with counsel had delayed the submission of an appeals brief:

After sentencing, the Petitioner and his attorneys...have had communication problems and disagreements over how best to handle the appeal. These problems have caused an extended delay in the filing of an appeal in this matter. The Petitioner has been resentenced four times and the time for him to file an appeal has again lapsed. Petitioner filed a pro se petition for a writ of habeas corpus in this court, and on November 5, 2008 this Court issued a rule to show cause directed against the Respondents...to show cause why an appeal had not been filed on behalf of the Petitioner.

      Attorneys...are ready to file the appeal in this matter and assert they would have done so already if not for the Petitioner's erratic behavior. This behavior includes giving counsel inconsistent directives, making allegations against them, including the filing of a complaint with the Lawyer Disciplinary Board that was ultimately dismissed due to lack of evidence, and ordering counsel to stop working on the appeal.

      Despite these delays allegedly caused by the Petitioner, counsel has a duty to move this appeal forward. When disagreements arise between counsel and client, counsel has wide deference and should proceed using his best professional judgment. This standard is set forth in Syllabus Point 5 of State ex rel. Humphries v. McBride, 220 W.Va. 362, 647 S.E.2d 798 (2007): “Where a counsel's performance, attacked as ineffective, arises from occurrences involving strategy, tactics and arguable courses of action, his conduct will be deemed effectively assistive of his client's interests, unless no reasonably qualified defense attorney would have so acted in the defense of an accused.” In accord, Syllabus Point 21, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

      With this standard in mind, the Court is of the opinion that the Petitioner is not entitled to habeas corpus relief, but that he is entitled to have an appeal filed forthwith. Accordingly, this matter is hereby remanded to the Circuit Court of Ohio County with directions to resentence the Petitioner for purposes of renewing the time period for appeal. Respondents are hereby ordered to file a petition for appeal on behalf the Petitioner within thirty days of the date the circuit court enters the resentencing order. Respondents are further ordered to notify the Clerk of this Court in writing upon the filing of the petition for appeal. The mandate of this Court shall issue contemporaneously herewith.

(Mike Frisch)

February 3, 2009 in Clients | Permalink | Comments (0) | TrackBack (0)

Loss Of Objectivity Leads To Censure

A lawyer who had asserted in his reply brief in a will contest appeal that the decision below was "politically motivated" was censured by the Pennsylvania Supreme Court. The court followed the recommendation of its Disciplinary Board. The complaint was filed by opposing counsel but the judge testified at the hearing and denied that his decision was motivated by politics. the board found that the lawyer produced no evidence to support the contention. The attorney had been subject to a private reprimand in 2006 for an earlier attempt to exhume the body of the same person whose will was contested in the instant matter.

The attorney offered a mea culpa in the bar proceeding: "he should have phrased his comments in a better manner...he did not offer the comments with a motive to malign [the judge]." The board found that he "became too personally involved in the matter and lost his objectivity and his professionalism...which culminated in [his]excessive hyperbole in his Reply Brief."

The alleged favoritism involved the scrivener of the will, who was the spouse of a federal district court judge. The district court judge had previously served on the court where the litigation took place.

(Mike Frisch)

February 3, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Unauthorized Practice

In separate opinions, the Ohio Supreme Court sanctioned non-lawyers for the unauthorized practice of law. In one matter, the court's web page summmarizes the findings:

In a decision announced today, the Supreme Court of Ohio agreed with a holding by the Board on the Unauthorized Practice of Law that Bruce A. Jackim of Middleburg Heights, who is not licensed or registered as an attorney in Ohio, engaged in the unauthorized practice of law when he prepared and filed a motion on behalf of another person, Coralie Jurick, in a foreclosure action pending before the Cuyahoga County Court of Common Pleas.

In its decision, the Supreme Court noted that although Jackim was authorized by a durable power of attorney form signed by Jurick to act as her agent and sign legal documents on her behalf, that authorization did not permit Jackim to undertake actions that constitute the practice of law, including the preparation and filing of motions in a court proceeding.

The Court quoted from its 2004 decision in Cleveland Bar Association v. CompManagement Inc. explaining that the restriction of the practice of law to persons who have met the licensing requirements for attorneys at law is designed to “protect the public against incompetence, divided loyalties and other attendant evils often association with unskilled representation.”

The Court issued an injunction ordering Jackim to desist from any further activities on behalf of others that constitute the practice of law. In light of the facts that Jackim was charged with a single infraction, did not charge for the services he provided to Jurick and did not cause financial harm to anyone, the Court accepted the board’s recommendation that no civil penalty be imposed in the case.

In the second matter:

The Supreme Court of Ohio today adopted findings by the Board on the Unauthorized Practice of Law that Leon Boyd of Cleveland, who has never been licensed as an attorney, engaged in unauthorized legal practice by preparing and filing documents on behalf of two “clients” in cases before the Cuyahoga County Domestic Relations Court. 

In one case, Boyd prepared and filed a divorce complaint and affidavit of indigency with the court. In the other case he filed a complaint for a legal separation and affidavit of indigency. In both cases the indigency affidavits Boyd prepared did not include required financial information to support the client’s claim for a waiver of court fees, and the forms were not properly notarized.

Noting that the Supreme Court had cited Boyd for similar unauthorized practice of law in 2006 and enjoined him at that time from such activity in the future, the Court imposed the maximum civil penalty of $10,000 for each of his two new violations and again enjoined Boyd from future acts of unauthorized practice. The Court also stated that, upon a motion by the Cleveland Metropolitan Bar Association in Boyd’s 2006 case, it would order him to show cause why he should not be found in contempt of the Court’s 2006 injunction.

The link to the web page will direct you to the decisions. (Mike Frisch)

February 3, 2009 in The Practice | Permalink | Comments (0) | TrackBack (0)

Not Privileged

A case decided today by the North Carolina Court of Appeals considers attorney-client privilege in the following context: The lawyer represented the client in a criminal matter leading to a guilty plea. The client had buyer's remorse and sought to withdraw the plea. The lawyer withdrew from the case, new counsel entered an appearence, and a hearing was held on the motion to withdraw the plea. The first lawyer testified at that hearing.

The court sustained the trial court's denial of the motion, concluding that the testimony did not relate privileged information:

The trial court's finding establishes that defendant disclosed the information to Hayes on 15 November 2004 so that Hayes could then provide it to the prosecutor in an attempt to negotiate a plea arrangement. As our Supreme Court pointed out in Miller, 357 N.C. at 335, 584 S.E.2d at 786, "if it appears that a communication was not regarded as confidential or that the communication was made for the purpose of being conveyed by the attorney to others, the communication is not privileged." Thus, because defendant provided the 15 November 2004 information to Hayes precisely for the purpose of conveying it to the prosecutor, that conversation was not a "confidential" communication to which the attorney-client privilege attached. See State v. McIntosh, 336 N.C. 517, 524, 444 S.E.2d438, 442 (1994) (holding that attorney-client privilege did not apply to attorney's statements to police as defendant had "necessarily authorized" counsel to "inform" police that defendant wanted to surrender).
    Turning to the admission of Hayes' testimony about his 30 January 2004 conversation with defendant, even assuming _ without deciding _ that the conversation was privileged and that defendant did not waive the privilege, defendant has failed to demonstrate that he was prejudiced by the disclosure. N.C. Gen. Stat. § 15A- 1443(a) (2007) provides that "[a] defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises." In this appeal, therefore, defendant must demonstrate that if Hayes' testimony regarding the 30 January 2004 conversation had not been admitted, there is a reasonable possibility that the trial court would have granted defendant's motion to withdraw his guilty plea. We hold that defendant cannot make the necessary showing.
    The testimony regarding the 30 January 2004 conversation related to the strength of the State's proffer of evidence regarding defendant's guilt. Apart from that conversation, the trial court had before it the 24 November 2004 letter detailing defendant's proposed testimony, which establishes defendant's guilt of murder and burglary, testimony regarding the confessions of co- defendants substantially implicating defendant, and evidence of defendant's cell phone being present at the crime scene under a broken window. In light of this evidence, we conclude that there is no reasonable possibility that the trial court would have granted defendant's motion in the absence of the testimony of the 30 January 2004 attorney-client conference.

(Mike Frisch)

February 3, 2009 in Clients | Permalink | Comments (0) | TrackBack (0)