February 24, 2009
OK To Hire The Retired
A recent opinion from the Florida Judicial Ethics Advisory Committee on the ethical implications of employing retired lawyers as judicial staff attorneys:
Although the Code of Judicial Conduct does not directly apply to judicial assistants, staff attorneys, and other court officials, it indirectly applies to them. Canon 3C(2) of the Code of Judicial Conduct mandates that a judge “shall require staff, court officials and others subject to the judge’s direction and control to observe the same standards of fidelity and diligence that apply to the judge.” Therefore, it is incumbent on judges to diligently monitor actions of staff that might bring into question the independence of the judiciary and the appearance of impropriety. See Fla. Code Jud. Conduct, Canons 1 and 2.
Consequently, salaried judicial staff attorneys have ethical restrictions on their activities. Using the volunteer services of retired attorneys would be permissible as long as the Inquiring Judge’s circuit required that these volunteers have the same ethical restrictions on their activities as paid staff attorneys.
It is important to note that the volunteers the Inquiring Judge’s circuit intends to utilize are retired attorneys who are not practicing law. As a result, no conflict can occur from a volunteer staff attorney appearing before a judge that the volunteer was also working for.
As long as the volunteer retired attorneys are willing to observe the same ethical limitations placed upon their activities as salaried judicial staff attorneys, then the Inquiring Judge’s circuit may use these volunteer attorneys as judicial staff attorneys.
This opinion does not address the substantive law pertaining to employment of volunteers by the judiciary. See §110.501 et. seq., Fla. Stat. (2008).
Further Study For Louisiana Advertising Rules
From the web page of the Louisiana Supreme Court:
Chief Justice Catherine D. Kimball announced today that the Court’s recently-adopted amendments to the Rules of Professional Conduct pertaining to lawyer advertising will become effective on October 1, 2009, rather than April 1, 2009, as previously announced.
The Court adopted the new rules following a lengthy study conducted by the Louisiana State Bar Association, recommendations of the LSBA House of Delegates, and further study by a Court Committee chaired by Chief Justice Catherine D. Kimball. These processes were triggered by a 2006 Senate Concurrent Resolution finding that lawyer advertising in the state has become undignified and poses a threat to the way the public perceives lawyers in this state. The new rules resulting from these processes balance the right of lawyers to truthfully advertise legal services with the need to improve the existing rules in order to preserve the integrity of the legal profession, to protect the public from unethical and potentially misleading forms of lawyer advertising, and to prevent erosion of the public’s confidence and trust in the judicial system.
The Court has decided to defer implementation of the new rules until October 1, 2009, in order to allow the LSBA and the Court to further study certain rules in light of the constitutional challenges that have been raised.
Larry Solum's Magnificent Entry-Level Hiring Data Base
Larry Solum (Illinois) has posted his annual request for information on entry-level hiring. He's gone mega-sophisticated with a Survey Monkey form. Very cool. [Jeff Lipshaw]
Coming to Terms with a Dorky Name
Posted by Jeff Linden Tree
It's not easy having a dorky name. I mean, there's no way that Lipshaw fits on the back of a sports jersey. I feel better today, however, even though it came at the expense of being mocked by my son, who told me he had already told me this.
Where do all the "Lip" names come from? Lipson, Lipski, Lipciowa, Lipsey, Lipschitz, Lipstein, Lipinski. It turns out that "lipa" is Slavic for linden or lime tree, and is the root of all of these related surnames and place names, like Leipzig and historic town of Liebeschitz in Bohemia (now the Czech Republic).
I feel better now. But I still envy Mike Madison.
February 23, 2009
Brothers Removed From Judicial Offices
A news release from the New York Commission on Judicial Conduct reports the removal from judicial office of two brothers, one sitting in Westchester County, the other in Bronx County. The Westchester judge attempted to derfaud his campaign manager by altering the terms of a loan repayment agreement for a $250,000 loan to his campaign. He failed to repay within nine months as agreed and later gave false and misleading testimony about the tranasaction. Both brothers submitted various loan applications that omitted assets and liabilities, evincing"deceptive, deceitful and dishonest" behavior. Both also filed materially incomplete financial disclosure statements with the Ethics Commission.
The Indiana Supreme Court affirmed the conviction of a defendant who was charged with the murder of his father, step-mother and two step-sisters so that he could attend his senior prom. The father was a minister who had remarried after the defendant's mother had died of cancer. The court noted that the evidence was entire circumstantial but sufficient to allow a jury to decide guilt. The criminal charges had been brought 13 years after the crimes were committed.
The court here ruled that it was not error to refuse to permit cross-examination of the deputy prosecuting attorney as to the reasons for the delay and his opinion concerning the merits of the case: "[his] opinion as to the sufficiency of the evidence to charges [the defendant] is protected by the work-product privilege." Further, the appointment of a special prosecutor was not required as a result of the newly-elected prosecutor having met with the defendant while in private practice: "we have a prosecutor with no memory of the consultation who believes he received no confidential information...[t]he trial court was within its discretion to deny [his] petition for a special prosecutor."
The Indiana Court of Appeals had reversed the conviction in April 2008, according to the report linked here. (Mike Frisch)
No Records, No Conversion
A Louisiana hearing committie proposes a public reprimand and probation for twelve months in a matter where a medical services provider who did regular business with a lawyer had complained that it had not been paid out of settlement proceeds as agreed. The committee found that the relationship between the lawyer and service provider was so informal, and the absence of required records so complete, that the mess was impossible to sort out. The lawyer and the clinic owner "had resolved outstanding debts...and that they had put a new accounting arrangement in place during the course of the underlying investigation."
The committee's analysis suggests that the failure to keep the records may have helped defeat charges of conversion: "[t]he fact is that, in accordance with the testimony of both [the attorney and the clinic owner], both their records are in such poor condition and the business arrangement so informal as to render a failure to remit virtually impossible." Likewise, his failure to account for client and third party funds "was not the result of an intentional act, rather a poor decision. [His] testimony was that he had stored his records in the enclosed garage of a fellow attorney with whom [he] practiced. The records apparently suffered water damage and mold damage rendering them useless." (Mike Frisch)
More Traffic Ticket Misconduct
A Louisiana hearing committee has recommended the disbarment (but not of the permanent variety) in a case where an assistant city attorney in New Orleans had been convicted of felony misfeasance in office. The conviction involved his decision to dismiss a traffic ticket for a $500 payment.
He contended that he did not have a selfish or dishonest motive; rather, he was doing a favor for a church friend. The hearing committee found that the conviction established his dishonest motive. However, mitigating factors--he had been a JAG and an adjunct professor for 12 years-- were found to favor allowing the possibility of eventual reinstatement. (MIke Frisch)
Get In Line
A law firm represented an insurance company that went into receivership had sought priority of payment in connection with their pre-liquidation legal services. The New Hampshire Supreme Court affirmed a trial court's ruling that general litigation services rendered and payable prior to liquidation do not consitute administration costs: " [The law firm] does not advance nor do we discern any principled way to distinguish between the fee for [the firm's] pre-liquidation legal representation and the fees of the other pre-liquidation professionals falling within the residual classification of [the law regarding administration costs.] " (Mike Frisch)
February 22, 2009
Trailing Yew Out
An attorney was disbarred by the Supreme Judicial Court of Maine based on charges brought in two matters. The accused attorney did not appear to contest the allegations. One matter involved his conduct as trustee for a trust that had as its principal asset the Trailing Yew Inn, a seasonally-operated inn on Monhegan Island. The attorney was removed as trustee after several years where he had failed to make required distributions and had no explanation for "ever increasing" expenses. After removal, it was discovered that he had paid approximately $70,000 in trust assets to himself.
The second matter involved his failure to return the files of another attorney that were in his possession. (Mike Frisch)
The final notice of the revocation of the law license of former Detroit Mayor Kwame Kilpatrick was issued on February 18. The Michigan Attorney Discipline Board had rejected the attempt to set aside the earlier agreed-to revocation. (Mike Frisch)
Just Slow Down
The Michigan Bar Discipline Board approved a consented-to reprimand of an elected county prosecutor who had arranged for the dismissal of a speeding ticket issued to his adult step-son. The step-son was residing with him. He had entered a no contest plea to disciplinary charges arising from the incident that included conflict of interest and failure to withdraw.
Linked here is a report from the Traverse City Record-Eagle that the attorney decided not to seek reelection. Another report (an editorial) from the same source discusses the bar charges and labels the attorney Tony the Fixer. (Mike Frisch)