April 2, 2010
No Mandamus For Bar Complainant
The West Virginia Supreme Court has denied mandamus relief to a person who had filed a bar complaint against his estranged spouse. The complainant sought to compel the Office of Disciplinary Counsel to remove items from the file relating to the closed complaint. The court held:
The relief Petitioner seeks is the removal of the CDs and transcripts from [the attorney's] closed file. He further requests that they be destroyed or given to him. Petitioner argues they consist of a “personal and private” communication to a third party and as such, are not relevant to the ethics complaint he filed against [the attorney]. In contrast, Respondent contends that [the attorney] filed the CDs and transcripts with the LBD because she believed they supported her position that Petitioner did not file the complaint in good faith or for a legitimate purpose, but in retaliation over events related to the parties' divorce. In [the attorney's] view, Petitioner's own words on the CDs and transcripts were proof of his impure motives.
The CDs and transcripts are a part of the permanent record relating to the ethics complaint filed against [the attorney] by Petitioner. The Rules do not authorize Respondent to remove any portion of the records relating to disciplinary matters. Indeed, Respondent may not exercise authority other than that which is conferred upon it by the Rules of Lawyer Disciplinary Procedure as promulgated by this Court. See Syl. pt. 2, in part, Coll v. Cline, 202 W.Va. 599, 505 S.E.2d 662 (1998) (“Administrative agencies and their executive officers are creatures of statute and delegates of the Legislature. Their power is dependent upon statutes, so that they must find within the statute warrant for the exercise of any authority which they claim.” (internal quotations omitted)).
Based upon the foregoing, it is apparent to this Court that Respondent acted in complete conformity with the Rules of Lawyer Disciplinary Procedure in this matter. Furthermore, there is no provision in the Rules which requires or authorizes Respondent to remove any portion of [the attorney's] file. We conclude, therefore, that Petitioner does not have a clear right to the removal of the CDs and transcripts from [the attorney's] closed file, nor does Respondent have some corresponding legal duty to remove them. Syl. Pt. 1, McCoy, 198 W.Va. at 460, 481 S.E.2d at 766. Petitioner has thus failed to establish that a petition for writ of mandamus should issue. Accordingly, we deny the writ.
"Stepping Away" To Disbarment
The Indiana Supreme Court has disbarred an attorney who had been suspended for six months with automatic reinstatement in October 2007. The suspension didn't seem to register with him. He wrote his clients a letter that indicated he was "stepping away" from law practice for six months and instructed his office staff not to tell clients who called in of the suspension. He appeared at a hearing a week after the suspension and filed a false affidavit certifying compliance with the suspension. Moreover, he "never relinquished management of the law office to [his associate]" and regularly interacted with his office staff on legal matters.
The court found that the so-called "stepping away" letter failed to comply with the notification obligations of a suspended attorney. He also had entered into a prohibited business transaction with a client and had made false statements to the Disciplinary Commission. (Mike Frisch)
"Sincere Regret" Avoids Suspension
An attorney found to have engaged in inflated billings in three matters was publicly censured by the New York Appellate Division for the Second Judicial Department. The court considered a number of mitigating factors in determining that a suspension was not called for under the circumstances:
Although Special Referee Clarke sustained all nine charges of the petition, he found that the respondent had shown sincere regret for her actions and submitted evidence of her otherwise good character and professional integrity. In mitigation, the Special Referee took note of the 33 letters of support submitted on the respondent's behalf from attorneys, clients, and others attesting to her good character. He found the respondent's testimony credible with respect to her motivation in submitting the affirmations in this manner. She recognized her error in judgment in submitting the subject documents and expressed sincere remorse for having done so. The Special Referee found that the respondent did not obtain a monetary advantage by the submission of affirmations in the format used.
In view of the respondent's unblemished history and extensive mitigation, the respondent is publicly censured for her misconduct.
In each of the matters, the attorney had filed false and misleading statements in court-supervised matters. (Mike Frisch)
Stupid lawyer tricks, part n
From the Attorney e-Newsletter of the Supreme Court of Pennsylvania's Disciplinary Board's March 2010 issue:
Also, 12 attorneys paid their annual fees with checks marked as drawn on a trust or escrow account, prompting an immediate inquiry from Disciplinary Counsel. Eighty-seven paid with checks drawn on insufficient funds; four of which were still outstanding at press time. Not smart.
And footnote 2 itself is classic: " The ethical equivalent of a 'Please kick me' sign."
Couldn't make this stuff up if we tried. Hat tip to my buddy Scott Unger for this one.
(Posted by Nancy Rapoport.)
April 1, 2010
Conviction For Providing Classified Information To Blogger Results in Interim Suspension
The New York Appellate Division for the Third Judicial Department granted a motion to interim suspend an attorney convicted of disclosure of classified information, a federal felony.
The attorney was employed by the FBI as a linguist. He "provided classified information to an individual who hosted a public Internet blog resulting in intelligence sources and methods being compromised."
The court found no basis to set aside the interim suspension that results from a conviction for a serious crime. (Mike Frisch)
Ineffective Assistance Claim Sustained
The Delaware Supreme Court has reversed a conviction for felony murder and related offenses based on a finding of ineffective assistance of trial counsel. The attorney had failed to request a clearly-available instruction on the special credibility problems with accomplice testimony. The instruction has been given for 40 years in the wake of a court decision.
The court here concluded that the failure to request the instruction had caused prejudice to the defendant, under circumstances where the testifying accomplice was the shooter. Prejudice will not be presumed in all cases involving a failure to seek the accomplice instruction. (Mike Frisch)
The Louisiana Attorney Disciplinary Board has recommended a partially-stayed two year suspension for two attorneys in connection with their joint representation of a father accused by his daughter of a sex crime. The bar complaint had been filed by the prosecutor. The board affirmed the hearing committee's conclusions that had found violations of most of the charged rules but rejected a proposed six-month suspension in favor of more severe discipline:
...the record in this case shows that Respondents presented three documents to the alleged victim of a sex crime. The alleged perpetrator of the crime, the victim's father, was Respondents' client. One document, an affidavit requesting dismissal of criminal charges against Respondents' client, undisputably is proper in and of itself. A similar form of affidavit is in use by the D.A.'s office to memorialize an alleged victim's desire to have charges dismissed.
However, another document Respondents employed was also an affidavit. This second affidavit recited the alleged victim's desire to have the "no contact" order that Respondents believed the court had directed to their client be "lifted for the period necessary for us to communicate..." The court issuing such an order was the only entity properly empowered to lift it. [One] Repondent...directed [the victim] to meet immediately with his client, as his [co-Respondent counsel] had arranged. Although later it was determined that no "no contact" order was imposed, Respondents essentially took the position that if there were a court order in place, they would break it.
The third document Respondents employed was styled a "Confidentiality Agreement." Although [the victim] had been subpoened to testify at trial, and ws therefore under a legal obligation to comply, under the plain language of the "Confidentiality Agreement" she would face the penalty of "liquidated damages" and "attorneys' fees" if she testified. By employing the "Confidentiality Agreement" as they did, Respondents indicated that the civil sanctions in their "Agreement" trumped the obligation she already owed to the district court to testify at trial. Respondents therefore again violated their duties to the legal system.
The board considered the victim's vulnerability and the coercive behavior of the attorneys in proposing a two-year suspension, with all but a year and a day deferred, and one year of probation for both. (Mike Frisch)
Sanction For Partnership With Non-Lawyer And Other Misconduct
A report of a bar discipline decision from the April 2010 online edition of the California Bar Journal:
[An attorney] was suspended for three years, stayed, placed on five years of probation with a 90-day actual suspension and was ordered to comply with a law office management requirement, take the MPRE and comply with rule 9.20. If the actual suspension exceeds two years, she must prove her rehabilitation. The order took effect Sept. 25, 2009.
[Attorney T] stipulated to four counts of misconduct, including forming a partnership with a non-lawyer, making communications containing untrue statements, misusing her client trust account and committing acts of moral turpitude.
[T] opened her own law firm in 2004 and two years later hired Mary [H], who graduated from law school but is not a lawyer. [T] formed a law partnership with [H] and filed an application with the Secretary of State to register [H & T] as a limited liability partnership. A law firm cannot be an LLP without registering with the State Bar and [T] did not do so.
In her fee agreements and other correspondence, [T] used the name [H & T] LLP, creating a false impression that [H] was a lawyer and that the firm was an LLP. She also advertised on craigslist, Linkedin and other forums, claiming to have more than 10 years of experience “at a top tier firm,” when she had been a lawyer for only five years.
Responding to a bar investigator, [T] said she had worked as an associate at Gray, Cary, when in fact she was once a paralegal at the firm. She also falsely claimed [H] was a salaried employee, not a partner with an interest in the LLP.
In addition, [T] commingled personal and client funds in her trust account, using it as an operating account for her law firm, and to pay personal and business expenses.
In mitigation, she demonstrated remorse and provided evidence of her good character.
The District of Columbia Court of Appeals reversed a conviction for assaulting a police officer and remanded the case for a new trial. The trial had recessed for the weekend with the defendant on the witness stand, having completed his direct examination. The court, at the government's urging, instructed the defendant not to speak to anyone over the weekend. Defense counsel said nothing.
The court held that the instruction amounted to an unconstitutional interference with the defendant's right to counsel. The failure of defense counsel to object did not affect the outcome as the trial court committed plain error. (Mike Frisch)
March 31, 2010
"Friending" And Florida Ethics
The Florida Judicial Ethics Advisory Committee has now weighed in on a series of questions concerning "friending. " Judicial assistants may friend so long as they do so in conformance with this opinion:
Several opinions clearly hold that judicial assistants are not subject to the Code of JudicialaConduct. See JEAC Op. 95-12 (where a majority of the Committee believed that the Code of Judicial Conduct did not apply to judicial assistants for seeking donations and fund-raising activities outside the courthouse and outside their administrative duties); Op. 93-45 (law clerks not bound by Code of Judicial Conduct when engaged in partisan political activity during their personal time).
While the Code may not apply directly to judicial assistants, it may indirectly impact them and their duties. In JEAC Op. 00-08, the Committee recommended that the judge direct its court employees, including judicial assistants, to not accept gifts. The Committee explained that “the acceptance of such gifts places the fidelity and the integrity of the court into serious question.” JEAC Op. 00-08; see also Canon 3C(2), Fla. Code of Jud. Conduct. Furthermore, in Op. 06-32, the Committee opined that a judicial assistant should not accept employment cleaning offices of attorneys who have appeared or were likely to appear before the judge. That conduct, coupled with the monetary implications, “gives an appearance of impropriety and has an adverse impact on the public perception of the integrity of the court system.” JEAC Op. 06-32; see also Canon 2B, Fla. Code of Jud. Conduct.
In JEAC Op. 09-20, the Committee recommended that a judge not add lawyers who may appear before the judge as “friends” on a social networking site, nor allow lawyers to add the judge as their “friend.” The Committee believed “that listing lawyers who may appear before the judge as ‘friends’ on a judge’s social networking page reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.” Canon 2B.
The concern presented in this inquiry is whether a judicial assistant adding a lawyer as a “friend” on a social networking site indirectly conveys the message that the attorney, who may appear before the judge, has a special position to influence the judge. The mere fact that personal information is being disseminated between the judicial assistant and a lawyer on the social networking site does not adversely impact the public perception nor compromise the integrity of the court system. Prohibiting the judicial assistant from expressing himself/herself outside the courthouse infringes upon his/her First Amendment freedoms. This form of expression by judicial assistants is not contemplated in our Canons and therefore not a violation of Canon 2B.
As long as a judicial assistant utilizes the social networking site outside of the judicial assistant’s administrative responsibilities and independent of the judge, thereby making no reference to the judge or the judge’s office, this Committee believes that there is no prohibition for a judicial assistant to add lawyers who may appear before the judge as “friends” on a social networking site.
However, a judge would continue to have the responsibility under Canon 3C(2) to “require staff, court officials, and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge. . . .” Therefore, in the unlikely event that a lawyer attempts an ex-parte communication through the social networking site, the judge should direct the judicial assistant to immediately “de-friend” the lawyer and to immediately report it to the judge.
The committee also opines that a candidate for an elected judgeship and lawyers who may appear before the judge if elected may "friend' each other.
Finally, there is this opinion:
(1) Whether the Code of Judicial Conduct requires a judge who is a member of a voluntary bar association to “de-friend” lawyers who are also members on that organization’s Facebook page and who use Facebook to communicate among themselves about that organization and other non-legal matters.
(2) Whether a judge may allow an attorney access to the judge’s personal social networking page as a “friend” if the judge sends a communication to all attorney “friends” or posts a permanent, prominent disclaimer on the judge’s Facebook profile page that the term “friend” should be interpreted to simply mean that the person is an acquaintance of the judge, not a “friend” in the traditional sense.
(3) If a judge accepts as “friends” all attorneys who request to be included or all persons whose names the judge recognizes, and others whose names the judge does not recognize but who share a number of common friends, whether attorneys who may appear before the judge may be accepted by the judge as “friends” on the judge’s Facebook page.
Limits Of Free Speech
The Illinois Review Board has recommended a suspension of two years and until futher order ("UFO" in disciplinary parlance) for a variety of ethics violations that included frivilous litigation and baseless accusations against judges. The United States Court of Appeals for the Seventh Circuit has disbarred the attorney for misconduct found in litigation initiated by the attorney after her discharge from an assistant corporation counsel position with the City of Chicago.
The board notes:
While attorneys can legitimately criticize a judge or disagree with his or her rulings, an attorney cannot unjustly impugn the character or integrity of a judge without having any basis for doing so. Kozel, 96 CH 50. While judges are not exempt from just criticism, the public interest and the administration of the law demand that the courts should have the confidence and respect of the people; therefore, attorneys cannot engage in baseless and unjust criticism, insulting language and offensive conduct toward judges. People ex rel. Chicago Bar Association v. Metzen, 291 Ill. 55, 58, 125 N.E. 734 (1919).
Significantly, the accusations about which the Administrator introduced evidence occurred in the context of pleadings filed in court. This is not a situation involving purely political speech, as [the attorney] seeks to suggest. An attorney acting in the capacity of an officer of the court cannot make scurrilous charges against judges. In re Phelps, 55 Ill. 2d 319, 303 N.E.2d 13 (1973). Orderly conduct of legal proceedings and public confidence in those proceedings require that attorneys not make false and baseless accusations against the integrity of judges. Palmisano, 92 CH 109 (Review Board) pp. 5-7. Where those statements are made with the requisite mental state, see e.g., Rules 3.3(a)(1) and 8.2(a), an attorney can be disciplined for those statements.
The Hearing Board majority found that [the attorney] made her statements with the requisite intent. State of mind is an issue of fact, within the province of the Hearing Board. In re Ingersoll, 186 Ill. 2d 163, 168-69, 710 N.E.2d 390, 237 Ill. Dec. 760 (1999); Palmisano, 92 CH 109 (Review Board) p. 3.
The circumstances as a whole support the Hearing Board majority's finding.
Circumstantial evidence can be considered in proving state of mind, and the record as a whole can be used in assessing a respondent's good faith, or lack thereof. Jafree, 93 Ill. 2d at 458, 444 N.E.2d 143, 67 Ill. Dec. 104. An inference of a lack of good faith can be drawn where it appears that a respondent's statements are made in retaliation for rulings adverse to the respondent or where there is a pattern of such statements. See Palmisano, 92 CH 109 (Review Board) pp. 1-2. Both are clearly present here. The point here is not whether any isolated individual statement is or is not protected by the First Amendment, but whether [the attorney] has demonstrated a pattern of making false accusations against members of the judiciary without any legitimate basis for doing so. The evidence demonstrates such a pattern, even if certain statements might, in and of themselves, constitute matters of opinion or hyperbole that would not, if considered on their own, warrant discipline.
Reintatement Denied To Attorney Who Represented Law Student At Hearing While High On Drugs
The Michigan Attorney Discipline Board affirmed a hearing panel order denying the second reinstatement petition of an attorney suspended for two years in March 2005. The suspension order was entered five years ago today. Among the violations (related to the attorney's cocaine addiction) was his "representation of a law student in a school disciplinary hearing while under the influence of drugs."
The board rejected the proposition that the passage of the specified time imposed by suspension (if it requires a petition for reinstatement) establishes a prima facie case for reinstatement: "This is not the law..." There was proper evidentiary support for the hearing panel's adverse conclusions and the petitioner has a heavy burden in establishing that his reinstatement is in the public interest. (Mike Frisch)
Lipshaw's Three Laws of Stress
The Three Laws of Stress (as observed in Type A people):
1. Stress will expand to fill the available psychic capacity.
2. Stress is infinitely expandable regardless of the initial stress energy.
3. There is a minimal level of stress energy, expressed as a function containing Planck's Constant, such that we can never be free of initial stress energy.
Over our mid-semester break, I undertook a number of steps to relieve myself of the usual end of semester stress: prepared two talks; wrote two exams; got an article accepted in a law review; started in on another task I am too embarrassed to mention but which is not due until next January. As far as I can tell, I have nothing pressing on my to-do list. My next major commitment for which I am unprepared is teaching contracts in the August and a symposium in October. I woke up yesterday morning to figure out what I should be worrying about. You can take the boy out of the Type A, but you can't take the Type A out of the boy.
March 30, 2010
Boston College Law Review - Tarkington on the Right to Impugn Judicial Integrity
Posted by Jeff Lipshaw
Caitlin Mulligan, the EIC of the Boston College Law Review, sent us a nice note highlighting Margaret Tarkington's (BYU, left) new article A Free Speech Right to Impugn Judicial Integrity in Court Proceedings.
Before we get to the abstract, I should note that Ms. Mulligan made the mistake of sending it to me along with Alan and Mike, which meant that I got to send her the following note (the humor, as it were, of which should be apparent to law professor readers), along the lines of what many years ago, when we were looking for law firm jobs we used to refer to as the "reverse bullet":
So here's the abstract:
The temptation to write something like the following is almost unbearable.
* * *
Thank you for your interest in the Legal Profession Blog.* * *
We receive many such requests for publicity each year. Space restrictions prevent us from publicizing many fine articles. While we are unable to accept this submission, we would welcome the opportunity to review any blog posts you may write in the future.
We look forward to reading your future work and wish you the best of luck with this piece.
But we'll post something anyway.
This Article examines why a free speech right to impugn judicial integrity must be recognized for attorneys when acting as officers of the court and making statements in court proceedings. Such a right is necessary to protect the constitutional and legal rights of litigants to an unbiased and competent judiciary. Further, the recognition of such a right for the attorney preserves litigants’ access to courts and due process rights. Previous scholarly arguments, which are based on analogies to other areas of limited First Amendment protection, fail to account for the protection of litigant rights, the role of attorneys in our adversary system, and the constitutionally required role of our judicial system. By curbing speech in the presentation of claims, the judiciary undermines the adversarial system and the role of attorneys therein, as well as undermining the judiciary’s own role and responsibility in remedying constitutional violations and providing fair proceedings.
Reading Arguably Privileged E-Mails Was Unethical
The New Jersey Supreme Court held today that an employee "could reasonably expect that e-mail communications with her lawyer through her personal, password-protected, web-based e-mail account would remain private, and that sending and receiving them using a company laptop did not eliminate the attorney-client privilege that protected them." The employer's counsel violated Rule 4.4(b) by reading the e-mails and failing to promptly notify the employee. The court noted that no reported New Jersey decision offered direct guidance on the issue.
The case was remanded to decide whether disqualification, screening, or imposition of other some other remedy should be imposed for the ethical violation. (Mike Frisch)
Not Fit For Reinstatement
The Wisconsin Supreme Court denied the reinstatement petition of an attorney who had been suspended due to an alcohol-related medical incapacity in 1998. The petitioner had suffered a relapse into drinking in October 2005 and claimed that she had been sober since that time. She petitioned for reinstatement in April 2006.
The referee had recommended reinstatement with conditions that included passing the bar exam in light of the suspension length. The Office of Lawyer Regulation objected to the recommendation and the court agreed that the evidence did not warrant reinstatement:
Supreme court rule 22.36(6) governs reinstatement following suspension due to medical incapacity. It provides that the petitioner has the burden of showing by clear, satisfactory, and convincing evidence that (1) the medical incapacity has been removed and (2) the petitioner is fit to resume the practice of law, with or without conditions.
Both requirements are necessary for reinstatement following a suspension for medical incapacity. Id.
We conclude the referee's findings do not support a determination that Attorney Schlieve has met her burden under SCR 22.36(6) to establish by clear, convincing, and satisfactory evidence she is fit to resume the practice of law. Whether the petitioner has demonstrated fitness to resume the practice of law presents a legal question we review de novo. See Nottelson v. Wis. Dep't of Indus., Labor, and Human Relations, 94
2d 106, 116, 287 N.W.2d 763 (1980) (The question whether the facts, as found, fulfill a legal standard presents a question of law.). We conclude the failure to establish the fitness component of SCR 22.36(6) is dispositive here; therefore, it is unnecessary to resolve the parties' arguments with respect to the referee's remaining findings and conclusions. Wis.
The term "fit," as used in 22.36(6) with the phrase "to practice law," encompasses more than the removal of a medical incapacity or being in a physically, mentally, or morally sound state. The term "fit" is sufficiently broad to imply a state of preparedness to render competent legal services; that is, to be prepared to provide the measure of expertise to ensure the attorney may be safely recommended to the community as a person to be consulted by and to represent others in legal matters.
Referee Hanson expressed his concern that Attorney...has been away from the practice of law for over nine years and needs "extensive retraining and legal education." He stated that testing is needed to determine the level of Attorney...'s legal expertise; he recommended she be required to pass the state bar examination and that she be mentored. We conclude the referee's findings fail to identify clear, satisfactory, and convincing evidence that Attorney...is sufficiently prepared to resume a law practice and be safely recommended to be consulted by and to represent individuals in legal matters. Notwithstanding the updated continuing legal education information recently submitted, we are unpersuaded that Attorney...has met her burden under SCR 22.36(6) to establish she is currently fit to resume the practice of law. Consequently, we deny Attorney...'s petition for reinstatement
The court also ordered the petitioner to pay the costs of the proceeding. (Mike Frisch)
March 29, 2010
Not In Good Standing
The Connecticut Appellate Court affirmed the dismissal of a case brought by a student who had attended law school at Quinnipiac University. The student requested that the university issue certificates of good standing in order for her to enroll and take courses as a visiting student for transfer credits and to submit transfer applications to institutions that included the University of Minnesota Law School. The student had an unpaid tuition balance and the university refused to issue transcripts and a letter of good standing so long as the balance remained unpaid. An associate dean wrote a letter to the Dean of Minnesota Law advising that the student was no longer in good standing.
The student filed a diversity action in federal court alleging that the associate dean's letter was defamatory. The case was dismissed at the close of the plaintiff's case-in-chief based, among other things, on the legal conclusion that financial delinquency was a ground for denial of the issuance of a certificate of good standing.
The student then filed a state court action, which was dismissed after a six-day trial in which the student represented herself. The court here affirmed the judgment. (Mike Frisch)
A Gross Misjudgment
The New York Appellate Division for the Second Judicial Department has suspended an attorney for four years.
Among other things, the attorney had his clients convey title to their home to him in order to avoid foreclosure and later evicted the clients while continuing to represent them in a family court matter.
The court concluded:
In determining an appropriate measure of discipline to impose, the respondent asks the court to note his altruistic motivation, his expressed regret, his previously-unblemished record, and the favorable character letters submitted by six locally practicing attorneys. As evidence of his intent to aid the clients, the respondent points out an admission by one of the clients under oath that the respondent gave him approximately $600 to $800 to get the utilities back on in his residence. The respondent further points out that this matter did not emanate from a complaint by the clients inasmuch as his conduct did not impact upon his representation of them in Family Court. He maintains that his questionable transactions and conflicts were not aggravated by additional misconduct.
While he may have suffered from the fiscal irresponsibility of his clients, the respondent evinced serious misjudgment in commencing an eviction proceeding against them while continuing to represent them in a pending Family Court matter. Balancing the respondent's previously-unblemished record and the absence of substantial harm to the clients with his display of gross misjudgment, we conclude that respondent should be suspended from the practice of law for a period of four years.
The Instant Misconduct
In a case involving an attorney who had been subject to two prior informal admonitions ana a public censure, the Pennsylvania Supreme Court reduced the sanction of a two year suspension proposed by its Disciplinary Board and ordered a suspension for one year and one day. The attorney had incompetently handled a matter and, according to the Board, "simply did not participate in the litigation after he had filed the complaint." He failed to cooperate with the clients' new attorney after he was fired.
The Board was not impressed:
Notwithstanding [his] history of prior discipline, Respondent is yet again before the Board. Quite obviously, these prior entanglements have not impressed upon Respondent his responsibilities to his clients. Respondent did not appear remorseful either for his instant misconduct or any of the past incidents. The instant record is completely devoid of evidence to support a finding that respondent intends to conform his actions to the Rules of Professional conduct in the future.
Two justices would impose the recommended two-year suspension. (Mike Frisch)
Grade Litigation Goes Nowhere
A recent decision from the New York Appellate Division for the First Judicial Department:
Plaintiff, a transfer student at defendant law school, commenced this action alleging, inter alia, that defendant breached an implied contract of good faith and fair dealing with him as a result of a grade he received in his Legal Writing II course. Claiming that he was unfairly disadvantaged because he did not take Legal Writing I at the law school, plaintiff seeks to require the law school to change its grading system from letter grades to pass/fail.
"The rights and obligations of the parties, as contained in the university's bulletins, bec[o]me a part of the parties' contract" (Prusack v State of New York, 117 AD2d 729, 730 ). However, only specific promises set forth in a school's bulletins, circulars and handbooks, which are material to the student's relationship with the school, can establish the existence of an implied contract (see Lloyd v Alpha Phi Alpha Fraternity, 1999 WL 47153, *9-10, 1999 US Dist LEXIS 906, *25-28 [ND NY 1999]; see also Abraham v New York Univ. Coll. of Dentistry, 190 AD2d 567 ). Absent the existence of a contract, a claim alleging breach of the implied covenant of good faith and fair dealing is legally unavailing (see Schorr v Guardian Life Ins. Co. of Am., 44 AD3d 319 ). Furthermore, "although . . . the determinations of educational institutions as to the academic performance of their students are not completely beyond the scope of judicial review, that review is limited to the question of whether the challenged determination was arbitrary and capricious, irrational, made in bad faith or contrary to Constitution or statute" (Matter of Susan M. v New York Law School, 76 NY2d 241, 246  [internal citations omitted]).
The court properly dismissed the complaint as there is no indication that defendant ever promised that it would utilize a pass/fail grading system. In fact, the remedy plaintiff seeks is contradicted by the documentary evidence, as defendant communicated through its student handbook that it utilizes a letter grading system under which all students are evaluated. Accordingly, plaintiff's breach of implied contract claim fails, as does his claim for breach of the implied covenant of good faith and fair dealing.
Plaintiff contends that he was unfairly disadvantaged and that his grade was arbitrary and capricious, as all assignments given in Legal Writing II were based on the law and the facts from assignments given in Legal Writing I. This argument is belied by the record, which includes an email from defendant's Office of Academic Affairs informing plaintiff that his Legal Writing section had been changed, and that he should contact the Administrative Assistant of Legal Writing, who would provide him with the materials needed to bring him "up to speed" for the spring term. There is no evidence that plaintiff availed himself of this opportunity.
The motion court did not abuse its discretion in declining to enter an unsigned, unverified copy of a transcript of a recorded discussion between plaintiff and his professor (see e.g. Myers v Polytechnic Preparatory Country Day School, 50 AD3d 868, 869 ).