May 1, 2010
Ghosh on Jeopardy, Part II
[Yesterday Shubha Ghosh, U. Wisc. law prof, appeared on Jeopardy! and was kind enough to share his tale. Here's part 2. -- Alan.]
The trip from the hotel to the Jeopardy studios consisted of a twenty minute shuttle tour of Culver City, a wait in the studio parking lot (not too far from where, I was told later, The Wizard of Oz and Gone With The Wind were filmed), and an escorted tour through metal detectors and into the green room in the sound stage behind the actual Jeopardy set. My spouse could not come with me past security and had to enter separately as an audience member when taping began at 11:00 am. In fact, my fellow contestants and I were sequestered from all human contact except for the members of the Jeopardy crew for the rest of day. Our day would be structured around trips from the green room to the set with a break for a lunch at the commissary, escorted by a contestant coordinator, until our name was drawn to be a contestant and we either lost or moved on as champions. The whole experience was new for me and completely unpredictable. And so I did what I usually do when dropped into foreign situations: I focused on trying to learn more about the people.
The first people I encountered were the contestant coordinators, some of whom I had met from the auditions, and other background workers who make the show happen. The contestant coordinators checked our ID’s and social security cards (we were asked specifically to bring those and would be disqualified if we did not), made sure we looked over and signed the requisite releases, and informed us of the rules of the game: phrase your answer in the form of the question, answer only when Alex calls your name, buzz in only when the timer lights around the board go off or you will be locked out for 3 seconds, and so forth. At various points during the green room briefing, each of the contestants was called into a side room for make-up. Our make-up artist also does Vanna White and had just come back from a shoot in the Philippines with the hostess and famous right of publicity plaintiff. Between applications of powder and eyeliner, I learned that make-up artists in Los Angeles are all free lance and look around on a day by day basis for gigs like the one in Jeopardy. I wish I had more time to talk with the make-up artist, and not only about how better to highlight my features. Labor history, especially in Hollywood, has always interested me, and the plight of make-up artists is another example of how another craft gives way to professionalization, guilds, and more readily commodified types of work.
In addition to Hollywood labor battles, our morning rounds also touched on the checkered history of the game show. A bouncy and over the top contestant coordinator soberly reminded us of the quiz show scandals of the 1950’s. As a result, the background rules for Jeopardy also included an extensive audit by an outside firm (not the same one that does the Oscars) to ensure that no one has access to the questions. Contestants are picked randomly by the outside auditor to determine their order of play during the day. Furthermore, the judges would be right there to ensure fairness and accuracy with one of them connected to the Internet to doublecheck responses. To reassure us even further, the outside auditor, a friendly gentleman who reminded me of an older William Frawley or a grandfatherly neighbor on a Sixties sitcom, walked into the green room and told us that he was looking out for us, to make sure everything was fair for contestants. I was going to ask him whether he was our attorney and whether I could have his card. But I reminded myself this is just a game show, for entertainment purposes, for fun and games.
Primped and primed with the how to’s of the game, well fed with bagels, fruit, and sweets from a deli tray probably picked up that morning from Von’s Grocery by a flunky, the cohort of Jeopardy contestants was finally shown the Jeopardy set in preparation for the first game, scheduled to be shot only an hour later. I have to admit my heart skipped several beats as the door was opened and a short walk down the hallway revealed the Board and the glaring neon blue and silver of the contemporary Jeopardy stage. Recent repeated viewings of the broadcast had imprinted the design, totem-like, on my brain. The set had a familiarity beyond the television viewings. It reminded me of the subdued background lighting and bright colors of a casino, images from Las Vegas and my direct experiences of visiting the casino in Niagara Falls once upon a time. All it needed was an all you can eat buffet, cocktail waitresses, and a lounge act. Then it slowly dawned on me: we contestants who are about to play are the lounge act. [end of part 2]
A Night At The Movies
A report of a recent bar discipline case from the web page of the Massachusetts Board of Bar Overseers:
On about June 11, 2000, at about 2:00 a.m., a friend of the respondent’s slipped and fell in the ladies’ room at a movie cinema, hitting her head. She immediately reported the accident to a cinema employee, who filed a report. There were no witnesses, and the friend declined medical assistance at the scene.
In February of 2001, the friend retained the respondent to represent her in a claim against the cinema. The respondent attempted to negotiate a settlement with the cinema, but with no success.
On June 10, 2003, the respondent filed suit against the cinema. After discovery, the cinema moved for summary judgment, the respondent filed an opposition, and, on April 27, 2006, summary judgment was granted in favor of the defendant. By this point, the respondent had determined that the case had little merit, but she did not inform her client that further proceedings were not justified. The respondent told the client only that she would appeal from the judgment.
The respondent filed the appeal late, and it was dismissed as untimely. She then filed a Rule 60(b) motion for relief from judgment, which was denied on May 21, 2007. The respondent filed an appeal from the denial of the motion. Throughout this period, the respondent kept the client accurately informed of orders of the court but did not tell that client that she had decided not to pursue the appeal if it were reinstated.
The respondent sought and obtained four extensions of time in which to file a brief on appeal, but she did not file the brief. The respondent did not inform the client that she had decided not to file a brief and that she should either withdraw the appeal or seek new counsel to represent her. The respondent also did not seek permission from the court to withdraw from the client’s representation.
Between May and December of 2007, the client attempted to contact the respondent for information about the status of her appeal and to obtain a copy of her file. The respondent did not respond to these inquiries and did not send her client a copy of the file. In November of 2007, the client terminated the respondent’s representation, and on December 26, 2007, the client filed a request for investigation with bar counsel.
In January of 2008, the respondent returned the file to her client. However, the respondent intentionally failed without good cause to reply to letters from bar counsel and to file an answer to her client’s complaint until after she was served with a subpoena from the Board of Bar Overseers.
By failing to explain to her client that she would not pursue the appeal because she had concluded that the appeal would not be successful and that the client should seek alternative representation if she wished to pursue the appeal, the respondent violated Mass. R. Prof. C. 1.2(e), 1.4(a) and (b), and 1.16(d). By failing to seek permission from the court to withdraw after deciding not to pursue the appeal, and by failing to seek permission to withdraw from the court when her continued representation meant violating a rule of professional conduct, the respondent violated Mass. R. Prof. C. 1.16(a)(1) and (c). By failing to respond to communications from her client requesting information about the status of her appeal, the respondent violated Mass. R. Prof. C. 1.4(a). By failing to return the file within a reasonable time after her client’s request and upon termination of the representation, the respondent violated Mass. R. Prof. C. 1.16(d) and (e). By intentionally failing without good cause to respond to bar counsel’s correspondence, the respondent violated S.J.C. Rule 4:01, § 3(1)(b), and Mass. R. Prof. C. 3.4(c), 8.1(b), and 8.4(g).
The respondent was admitted to practice in Massachusetts on December 22, 1982. In aggravation, the respondent received a public reprimand in 1996 for similar misconduct.... In mitigation, the respondent was suffering from depression and other serious medical conditions at the time of the misconduct. The respondent sought treatment and substantially cut back on her practice.
The matter came before the Board of Bar Overseers on a stipulation of facts and a joint recommendation for a public reprimand with conditions requiring the respondent to be evaluated by Lawyers Concerned for Lawyers (LCL); follow LCL recommendations, attend the LCL Solo Practitioners Group, and be monitored by LCL for two years; and have her law office practices audited by the Law Office Management Assistance Program. On February 8, 2010, the board ordered a public reprimand, subject to the terms of probation set forth in the stipulation.
The case is Matter of Root. (Mike Frisch)
April 30, 2010
Guest Series by Shubha Ghosh, Wisconsin Law Prof and Jeopardy! Contestant Yesterday
[Shubha Ghosh (Wisc., Law), who with Jeff is the most well-read guy I know and a frequent blogger elsewhere, has graciously agreed to write for us a series on his very recent experience playing Jeopardy! He is coauthor of the casebook Intellectual Property & Business Organizations (LexisNexis 2006) and a book I believe my 1Ls will read this fall, Acing Tort Law. Since he's prolific, I will cite more of his work later... BTW, he is very friendly, though maybe not the day they sent a photographer to his office. Here is part 1. --Alan Childress]
When Jeopardy Attaches
One morning earlier this year, eleven people congregated in the lobby of the Culver City Radisson waiting for the shuttle bus to take them to the Sony Studios to film five episodes of the gameshow Jeopardy. As those familiar with things L.A. know, this happens almost every week, with eleven different strangers, all filled with anticipation and adrenaline, from all over the country and lucky enough to pass tests of knowledge and of personality. That morning I was one of the chosen eleven.
Many lawyers, law students, and law professors have appeared on Jeopardy and other gameshows.
Some speak negatively of the experience. Others publicize it proudly on web sites. I am pretty sure I have seen an AALS FAR include Jeopardy victory under “other accomplishments.” Motivations vary. For me, it was a long time interest, cultivated by high school trivia shows and modest cash bounties, converted into liquid, won at pubs. I was also curious how it all worked: the lights, the camera, the ambition to convert inert facts into hot cash all through the push of a buzzer. Appearing on Jeopardy is my flirtation with publicity. To quote the film maker John Waters, I always wanted to sell out but no one wanted to buy me.I used to watch Jeopardy regularly. My early memories from the Black & White Sylvania my family had in the late Sixties include the moonlanding, news coverage of Bobby Kennedy being killed, anchors reporting on what I heard as gorilla warfare, and three intense people sitting in front of an array of mechanically displayed clues valued anywhere from ten to one hundred dollars and phrasing their answers in the form of a question. The show went away for a while, but it returned in the mid-Eighties, the board jazzed up and question values appreciated. Now, in 2010, people talk about the Jeopardy web site and the boards, sharing tips on how to buzz in and what to say to Alex Trebek, the host. Sometime in the shifts of marketing and branding, I stopped watching.
Out of whim I tried out for the first time in New York City in 2001, passed some of the hurdles, but never heard back to actually appear on the show. An email announcing an online test escaped my spam filter in January, 2009, and again on a whim I took the test. In May, I was invited, based on the online test, to an audition in Chicago. The audition consisted of another written test and a question and answer session with the two contestant coordinators who were judging personality and poise on the show. At the end of the ninety minute audition, twenty of us were told that we would be on an invite list for the next eighteen months. All this was the same as my experience in 2001. This time, however, my phone invite came about six months later, shortly after the new year. The call was from the contestant coordinator at my 2001 audition who happened to remember me. You see, there are folks who try out a dozen or more times before the call comes. Luck had it that I was called my second try.
A panic surged through me as I realized there were only two weeks until taping -- and over two hundred countries whose capitals and major geographical landmarks had to be committed to relatively long-term memory. I also had to start watching the show again. The program guide on the Jeopardy web site indicated that the show aired at the same time accident attorneys, payday loan makers, and diet doctors advertise on the airways, and I set the DVR accordingly. The show used to be on after dinner, a nice way to end the day and begin the evening. Re-engaging with Jeopardy, I asked myself: What had I committed to by agreeing to be a contestant? Was I a part of a desperate franchise? Such thoughts were put aside quickly as I worked through, among other lists, the countries in the Commonwealth of Independent States and the names of people who would succeed President Obama. VP, Speaker of the House, Secretary of State, and so forth. . . . [end part 1]
Update on Bill Threatening La. Student Clinics: SALT Weighs In
Posted by Alan Childress
[The Society of American Law Teachers has a list of past presidents and board members that reads like a who's who of the law prof world. A letter sent to Dean Griffin of Tulane today, by its presidents, Profs. Raquel Aldana and Steven Bender, reads in its body as follows --ed.]
Since 1974, the Society of American Law Teachers (SALT) has been an independent organization of law teachers, deans, law librarians, and legal education professionals working to make the profession more inclusive, to enhance the quality of legal education, and to extend the power of legal representation to under-represented individuals and communities. We write to you on behalf of SALT to express SALT’s opposition to SB 549, which undermines academic freedom and interferes with an essential public service provided by the clinical programs at the four Louisiana law schools. SB 549 threatens to prevent law school clinics from meeting their professional obligation to expand access to justice for their clients by seriously limiting the types of representation they can undertake.
SALT is particularly concerned with Section 2 of SB 549. Section 2 of the bill prohibits law clinics from filing any action against a government agency or filing a suit for monetary damages against any individual or business. It also prohibits law clinics from raising challenges to the Louisiana constitution.
These prohibitions would eliminate law student representation of clients in most civil law actions. Should this bill become law, future Louisiana lawyers would suffer from the lack of litigation skills training necessary to the effective practice of law, and clients would suffer from not having access to lawyers to take their cases through the justice system using the most relevant legal theories available. Legal representation without the ability to pursue applicable claims does not constitute meaningful representation for either the students trying to learn or the clients which they serve.
Furthermore, our system of checks and balances, a necessary component of good government, values the ability of lawyers to challenge governmental action – this right is protected in the federal and Louisiana constitutions and statutes. Law clinic clients should be guaranteed the same constitutional and statutory rights as everyone else in Louisiana. . . .
The importance of the ethical principle at the heart of the legal profession, the duty to represent those who otherwise would not have access to justice, is a core value that students are taught in the classroom, but often experience and internalize only in their representation of clients in a clinic. ...
[The rest of the letter, a powerful one, follows in full by pdf: Download SALT Letter]
Defending The Mayor Part Two
Two additional bar discipline reports have been filed in connection with ethics charges brought in Michigan against attorneys in connection with litigation involving former Detroit Mayor Kwame Kilpatrick.
In one matter, the tri-county hearing panel found that the charges against an attorney who was retained by the City as "special counsel" had not been proven by a preponderance of the evidence and dismissed the charges. The accused attorney had been brought into the litigation because of his extensive trial experience. The panel found that two attorneys in the Corporation Counsel's office (one of whom headed the office) were responsible for failing to advise the City Council of documents relating to the settlement.
In the second matter, a different tri-county hearing panel found that the former Detroit Corporation Counsel had not engaged in misconduct concerning the settlement of the underlying whistleblower litigation. The panel applied a Rule 1.13 analysis and concluded that the client was the City Council, not the City itself, as the accused attorney had argued. However, the panel found insufficient evidence that the former Corporation Counsel had failed to communicate with and advise the City Council. Specifically, the evidence did not establish that he was aware of the romantic nature of the Mayor's e-mails.
The panel found that the former Corporation Counsel had failed to properly supervise the junior attorney who was more directly involved in the litigation with respect to FOIA responses and other aspects of the litigation. The matter has been set for a sanction determination.
Charges against the junior attorney are as yet unresolved. (Mike Frisch)
Bilking Elderly Client Draws Suspension
The New York Appellate Division for the Second Judicial Department imposed a six-month suspension with reinstatement conditional on a further court order of an attorney who had charged excessive (but not illegal) fees to a elderly client who suffered from dementia. The facts:
On or about August 7, 2001, the respondent was retained to represent an approximately 89-year-old self-petitioner and alleged incapacitated person...and his wife, in a proceeding pursuant to Mental Hygiene Law article 81 for the appointment of a proposed guardian. The respondent represented [the client] from June 2001 through March 2002. [The client]'s wife died in August 2001, during the course of the representation.
In a retainer agreement dated August 7, 2001, executed by [the client], the respondent acknowledged that [the client] previously had paid an initial retainer fee in the sum of $7,500 and that he required an additional $7,500 at the time the agreement was signed. Pursuant to the retainer agreement, the respondent was to bill [the client] at the rate of $250 per hour for his services and $150 per hour for the services of paralegals and associates. The agreement further provided: "You will be responsible for all non-legal fees and expenses incurred, on your behalf, in representing you in the Article 81 proceeding, and these fees are in addition to any legal fees billed to you."
Between June 2001 and March 2002, the respondent presented bills totaling $88,968.45, and all charges were billed at the rate of $250 per hour, for services of both a legal and nonlegal nature. Between June 2001 and January 2002, Leslie Evans, an attorney and family friend of [the client], served as the proposed, and later as the appointed, temporary guardian for [the client]. Between November 2001 and February 2002, the respondent submitted his bills directly to, and was paid directly by, [the client]. On or about January 16, 2002, Evans and Cleveland Thornhill, a relative of Medford, were appointed coguardians by then Kings County Supreme Court Justice John M. Leventhal. Although the respondent adjusted two bills after the coguardians voiced an objection, and revised his hourly rate to $195 per hour for those two bills only, the entirety of the fees for services of both a legal and nonlegal nature between June 2001 and March 2002, totaled the sum of $85,045.95.
The bills covering this period, from June 2001 to March 2002, totaling six in number, contained charges whereby the respondent billed at a rate of $250 per hour for services of a nonlegal nature, or reflected an excessive number of hours spent on matters that were not necessary, and/or should not have reasonably taken the amount of time billed, and/or could have been performed by a nonlawyer. Such charges, too numerous to itemize individually, billed [the client], for instance, for the time the respondent spent: accompanying [the client] to the doctor for a medical visit, or to the bank to locate a safe deposit key; going to court to conform orders; accompanying [the client] to the New York City Central Passport Office to obtain an expedited passport; or arranging for a trip by [the client] to visit a relative in Barbados.
On an application by the respondent for payment of outstanding fees, Justice Leventhal found numerous instances of work of a nonlegal nature for which [the client] was charged rates for legal services, and instances of excessive number of hours spent on matters that were not necessary and/or should not have taken as long as billed. In a decision and order dated December 20, 2002, Justice Leventhal denied the application.
In an answer dated January 15, 2008, the respondent denied that the fees he charged [the client] were excessive, disputed that various services were of a nonlegal nature since they were incident to legal services provided, and claimed that if these services were regarded as of a nonlegal nature, his rate of $250 per hour was, in any event, reasonable for such services.
At the hearing, the parties stipulated that the fees at issue were not illegal.
Based on the evidence adduced at the hearing, which included admissions by the respondent that he billed inappropriately and was wrong for doing so, and the expert testimony of Henry Rakowski, Esq., who opined that many services were billed at a rate for legal services which should not have been so billed, we conclude that the Special Referee properly sustained both charges of professional misconduct.
If there is any recent trend in bar disciplinary cases, prosecutions against lawyers who engage in misconduct against the elderly and infirm seem to be on the rise. I applaud this trend. (Mike Frisch)
"A Serious Blow to Legal Education": La. to Effectively End Clinics? (Or Dialysis Patients Will Suffer?!)
Posted by Alan Childress
Law School clinics in several states, notably in Maryland and Louisiana now, are under fire. Real people may be hurt beyond imagination -- from indigent clients and neighborhood assocations to law students and ordinary medical patients (the latter because the pending La. bill would cut off funding for their treatments at Tulane). Here is the story by Nick Marinello at Tulane about a pending bill in La. which would effectively kill most clinics at our four law schools.
A pending bill in the Louisiana Legislature that would restrict the roles of university law clinics could "deal a serious blow to legal education in our state," according to a letter written by law school deans from Tulane and Loyola universities to members of the state senate. In that letter, Tulane Law School interim dean Stephen Griffin and Loyola University Law School dean Brian Bromberger describe the essential role of clinical legal education and decry the chilling effect that the bill would have on university law clinics.
The bill purports to regulate legal clinics but would in fact cripple them, write Griffin and Bromberger.
Senate Bill 549 by Sen. Robert Adley, R-Benton, would prohibit law clinics at any state or private university that receives state funding from suing government agencies. In addition, the bill would forbid clinics from suing individuals and businesses for financial damages and curtail the ability to raise constitutional challenges.
As stipulated in the bill, any violation of the law will "result in the forfeiture of all state funding to the university for that fiscal year."
In an interview, Griffin said that he believes the restrictive language of the bill is targeting a particular clinic. "Although the bill is aimed at the Environmental Law Clinic, the target it actually hits is far more broad and affects nearly all of our clinics negatively, which would severely hurt our curriculum and our ability to serve the community by providing access to justice."
Along with the Environmental Law Clinic, Tulane Law School operates clinics representing indigent clients in civil litigation, criminal law, domestic violence, juvenile law and legislative and administrative advocacy.
According to Griffin, SB 549's prohibition of suing the government and restriction on raising constitutional issues would have a profound and negative impact on the attorney-client relationship. "You can't say, 'yes I'll represent you but, by the way, I can't make an argument based on a state constitutional challenge'," said Griffin.
The legislation also calls for all university law clinics to be subject to oversight by the House Committee on Commerce and the Senate Committee on Commerce, Consumer Protection and International Affairs. Currently, the Louisiana Supreme Court supervises law clinics.
"Clinics have always been supervised by the courts," said Griffin. "They operate under the strictest limitations in the country. More regulation is simply unnecessary."
Currently the bill is under review before the Senate Commerce Committee. Griffin encourages anyone interested in the welfare of clinical legal education to contact members of the committee to voice their concern.
The law deans' letter appears here [Download Deansletter]. Contact info for the Committee, in case you can share your view. What a sad way to celebrate the second week of JazzFest: resisting a bill that may be targeted by petrochemical industries at our environmental clinic -- this, ironically, while the fishing industry tries to salvage its shrimp bed from oil -- but really will end one of the best things about legal education and about Loyola and Tulane. Have they no shame? And will this effort stop at La. and Md.?
Update: letter from SALT opposing bill, here.
"Do I Get A Bonus?" No, You Get a Censure
An Arizona Hearing Officer has recommended a censure of an attorney for conduct in representing a 100 year old client in estate planning. According to the attorney, he jokingly asked the client something to the effect "Do I get a bonus?" during their consultations. The comment was made in front of a couple who were looking after the client.
The client responded by offering to leave the attorney $50,000 in his will. The attorney initially declined. He then told the client he did not think he could draft a will from which he would benefit, but that he could accept a gift. The attorney drove the client to his bank, where he transferred the 50K into a new account in the attorney's name. When new counsel demanded that the "gift" be returned, the attorney complied.
Hearing Officer Coker (who always writes clear and thoughtful reports, in my view) noted:
Upon first review, this case is very unsettling. The image of an attorney charged with the responsibility of having the best interests of his client at heart at first making a joke about receiving a "bonus," and then thereafter assisting his elderly client in the transfer of $50,000.00 to his own enefit, is fraught with all kinds of negative implications and questions.
The attorney may have felt that the client wanted to give him the money. However, the attorney failed to advise the client to get independent counsel prior to the transfer of funds. The return of the money was a mitigating factor. (Mike Frisch)
Attorney's Drug Use Places Clients At Risk
The web page of the Ohio Supreme Court reports:
The law license of [a] Cleveland attorney...has been suspended for two years, with the final 18 months of that term stayed on conditions, for professional misconduct arising from his admitted use of illegal drugs, culminating in a 2007 arrest for possession of crack cocaine and resisting arrest.
The Court adopted findings by the Board of Commissioners on Grievances & Discipline that [his] occasional use of marijuana since adolescence and intermittent use of cocaine between 2004 and 2007 violated the state attorney discipline rules that prohibit engaging in conduct prejudicial to the administration of justice and conduct that adversely reflects on an attorney’s fitness to practice law.
In its 6-0 per curiam opinion, the Court acknowledged that [he] had completed an intervention program that resulted in the dismissal of the criminal charges against him, and had voluntarily participated in 12-step sobriety program for a year after his arrest, but had since abandoned that program as inappropriate and continued to assert that his former drug use had never endangered the interests of his clients and that the consequences of his conduct, including termination from his former law firm, were unfairly severe compared to the treatment of other attorneys who engaged in similar conduct. In light of those findings, and a psychological evaluation suggesting the need for continuing oversight of [his] conduct, the Court rejected the disciplinary board’s recommendation of a fully stayed license suspension and instead imposed a two-year suspension with the final 18 months stayed.
The court's opinion notes:
Respondent claimed that he was never impaired while working and that his drug use did not interfere with the representation of his clients. But his admitted use of marijuana and purchase of crack cocaine just days before he filed an important motion demonstrate that his conduct did place his clients at risk. Respondent criticized his former employer for notifying his clients of his arrest and implied that his conduct was not serious enough to warrant the subsequent termination of his employment. Instead, he attributed his firing to a personality clash with a majority partner and the firm's desire to retain his share of the fees for two very lucrative cases.
The attorney separated from the Bar's counseling program "under less than amicable circumstances." (Mike Frisch)
Full Time Help As A Matter Of Right
The Nebraska Supreme Court has held that a county board of supervisors lacked the authority to deny the request of the elected county attorney to hire a full time secretary. The board had approved only part-time support.
The court majority affirmed the conclusion of the trial court and held that "...the Board lacked the authority to disapprove [the county attorney's] reasonable salary request absent a finding that the request was arbitrary, capricious, or unresonable."
Chief Justice Heavican dissented. While agreeing that the board cannot infringe upon the "power of a county officer to run his or her office as he or she sees fit, [the exercise of] that power [is] subject to legitimate budgetary constraints encountered by the county board." (Mike Frisch)
Don't Mess With The Opera
The Illinois Hearing Board has recommended a censure of an attorney who had prepared a series of testamentary documents for a client that included bequests to him. The attorney acknowledged the conduct but and indicated that he was not aware of the ethical prohibition. The hearing board rejected charges of overreaching in light of the longstanding relationship between the attorney and client and the client's expressed desire not to press the charge:
...we noted previously that counsel for the Administrator represented to us, and to Respondent, that she was not pursuing the charge of undue influence. Although Administrator’s counsel then observed in closing argument that the charge may not have been effectively rebutted by Respondent, we do not believe counsel’s statement resurrected that charge. Indeed, any other conclusion would place Respondent at an unfair advantage. If we were to consider the issue, however, we would find that Respondent’s evidence of a long friendship between his family and the [clients] was compelling, and that [the client's] bequest to Respondent was consistent with that relationship.
The attorney met the client and her husband in 1959 when they were neighbors in a condominium. The attorney attended law school at night at the urging of the client's husband and was licensed in 1968. He had no prior discipline.After the client's husband died in 1988, the attorney drafted nine amendments to a trust agreement which named him as successor trustee. The first amendment made a bequest to the Chicago Lyric Opera. Beginning with the second amendment, there were bequests to the attorney as well as the Lyric Opera.
When the client died in March 2008, the Director of Planned Giving for the Opera (who is an attorney) learned of the bequests to the drafting attorney. The director also learned that the estate had been depleted by medical expenses and that full payment of the bequest might not be forthcoming. Although the bequest to the Opera was eventually paid in full, the director advised the ADRC of the conduct.
April 29, 2010
Lawyers On, If Not In, Jeopardy!
Posted by Alan Childress
Lawyers and law professors have been well represented on game shows over the years, and have been -- my impression is -- quite successful on Jeopardy! I do know (by emails) one undefeated five-time champion: Pat Healy, a lawyer and an indexing editor, among other positions, for LexisNexis. (His great work on my own book will be sold May 17, more later.) Critical legal studies scholar Peter Gabel is the son of Arlene Francis, who regularly appeared on the panel for What's My Line?, and of an occasional guest panelist, actor Martin Gabel. (Peter was a surprise mystery guest once, too, and stumped his mother.) And Ninth Circuit Judge Alex Kozinski appeared on The Dating Game. Was he the catch?
Of course, in the early days, the two most famous game show participants were a psychologist (Joyce Brothers) and a literature prof (Charles Van Doren), the latter more like infamous, in the excellent movie Quiz Show.
Readers can post their own examples of law profs in action, but one you did not hear about is my own appearance, 21 years ago next month, on Concentration, with Alex Trebek. You did not hear about it because I told almost no one, which tells you a lot right now. Suffice it to say that at the end, Alex was not speaking to me anymore, and the last words I heard were from the housewife from Pamona who remarked, after having trounced me, "And he's a professor, too!" This as my seat was gliding away from her and Alex (who earlier had corrected her when she said "anxious to" when she meant "eager to"; pedantic twit). It appeared to be gliding but in fact some Teamster off-camera was pulling me as a dolly.
More on that someday, but really this is a week to celebrate other game show moments.
Joint Report Recommends Changes to Legal Education for Practice and CLE Training
Posted by Alan Childress
From a press release this morning:
The summit examined the entire spectrum of lawyer training and development, and recommended ways in which all constituencies within the profession can improve their cooperation toward the goal of a competent bar. ALI-ABA and ACLEA have now released the Final Report containing recommendations that emerged from the summit. [or: Download Finalreport] Among the final recommendations are:
-- Develop model core practice competencies keyed to each level of a lawyer’s professional career.
-- Design and share transitional training programs in legal practice skills starting in law school and continuing through at least the first two years of practice.
-- Consider reformulating bar examinations to include phased examination, linked in part to attainment of legal practice skills, with some parts as early as in the law school years.
-- Accredit in-house continuing legal education programming similarly to that produced by other CLE providers.-- Develop appropriate accreditation standards for all varieties of distance learning CLE.
-- Expand law school and CLE programming to prepare and encourage law students and lawyers to represent underserved communities.
Judges Needing Lawyers
May a judge who needs a lawyer negotiate for a reduced legal fee?
Yes if based on legitimate factors other than judicial status, according to a recent opinion of Florida's Judicial Ethics Advisory Committee. The facts:
Prior to taking the bench, the inquiring judge was employed by a governmental entity in an executive capacity. A member of the entity’s governing board is now under investigation, and the inquiring judge has been listed as a fact witness in the investigation. The judge’s former employer is providing an attorney free of charge to former employees being called as witnesses in this investigation. The judge has retained counsel for this investigation and has negotiated an attorney’s fee rate somewhat lower than counsel usually charges. The judge’s former employer has offered to reimburse a portion of these fees to the judge’s attorney, but at the same lower rate the entity is paying counsel for the other employees. The inquiring judge would personally pay the difference between the fee negotiated and the fee the former employer reimburses. The judge has voluntarily entered a disqualification order for any other cases being handled by this counsel and from any cases involving the former employer.
Nothing in the Florida Code of Judicial Conduct prohibits a judge from retaining personal counsel and negotiating the fee to be paid. However, the negotiated fee cannot be so low that it can reasonably be perceived as exploiting the judge’s judicial position. Canon 5D(1)(a). This Inquiry does not disclose why the judge’s attorney is willing to accept a lower rate than the attorney usually charges. The inquiring judge should inquire and insure that the fee rate is based on legitimate considerations other than the mere fact that the prospective client is a judge.
Determining the basis for the attorney’s fee rate discount may also answer the question of whether the discount must be reported as a gift, under Canons 5D(5)(h) and 6B(2). If the discount were based on routine business considerations, such as the time and labor involved, the uncomplicated nature of the representation, or the experience of the attorney in handling similar cases, all factors unrelated to client’s judicial office, no “gift” is likely to be implicated. However, if the discount were based on non-business factors, such as a professional courtesy, available to any member of the legal community, not just judges, a “gift” would appear to exist.
The inquiring judge should note that not all gifts are required to be reported under Canons 5D(5)(h) and 6B(2). Fla. JEAC Ops. 02-20 and 03-10. If this fee discount is a gift, and if this gift is not included as one of the gifts listed in Canon 5D(5) (a) through (g), it would fall into the “other” category of Canon 5D(5)(h) and must be reported.
This committee is aware of no provision of the Code, court opinion, or ethics opinion addressing the propriety of a judge accepting reimbursement of attorney’s fees incurred by the judge in connection with the judge’s former employment. In an inquiry based on very different facts, this committee concluded that nothing in the Code prohibits a judge from accepting contributions for attorneys’ fees where the judge was accused of misconduct. Fla. JEAC Op. 98-11. In this inquiry, the former employer is also contributing attorney’s fees to other, non-judge employees, so it is hard to imagine a rule that would require the judge to decline equal treatment. However, while accepting the former employer’s reimbursement, the judge should be careful to comply with other provisions of the Code, including disqualification, where appropriate. Fla. JEAC Op. 05-15.
Ohio Changes Criminal Discovery Rules
The web page of the Ohio Supreme Court announced yesterday changes in criminal discovery rules:
The Supreme Court of Ohio today filed with the Ohio General Assembly final amendments to the annual update of the Rules of Practice and Procedure, including changes to the criminal discovery process that were developed through a collaborative process led by the late Chief Justice Thomas J. Moyer and including the criminal defense bar and prosecutors.
The amendments concern changes to the rules of criminal procedure and the rules of appellate procedure. Specifically, the amendments to Criminal Rule 16 call for a more open discovery process, and the revision of several rules of appellate procedure implements a procedure for en banc consideration in courts of appeals when separate three-judge panels within the same court of appeals reach conflicting decisions on the same matter of law.
The new discovery process would allow defense counsel access to materials that, under the current rule, prosecutors did not have to divulge. Changes in Crim.R. 16 also call for establishing a defendant’s reciprocal duty of disclosure and seek to protect victims and witnesses from potential harassment.
The discovery reforms were developed through an extraordinary cooperative process that involved leaders of the Ohio Prosecuting Attorneys Association and Ohio Association of Criminal Defense Lawyers. Chief Justice Moyer had urged them to collectively develop proposed rules that would be considered for adoption by the Supreme Court.
“The patience and spirit of cooperation required to realize these important and necessary changes to the discovery process speak volumes about Chief Justice Moyer’s collaborative, collegial nature,” said Justice Paul E. Pfeifer. “His vision and persistence and, finally, his stubbornness in supporting a just cause, led to this remarkable achievement for our legal system. For well over a decade, he worked for this change, and we have been through numerous starts and stops. But today, we stand in a great place – the proposed Crim.R. 16 emerged from this court by a unanimous vote, has the support of prosecutors and defense attorneys, and, we think, bipartisan support in the General Assembly. All of that is the direct result of Tom’s stewardship.”
The en banc provisions of the appellate procedure rules result from the Supreme Court’s decision in McFadden v. Cleveland State Univ. The Court held that “if the judges of a court of appeals determine that two or more decisions of the court on which they sit are in conflict, they must convene en banc to resolve the conflict.” Language was also added to the proposed amendments to ensure that an order or entry in reconsideration that results in an intra-district conflict also could be subject to en banc consideration.
Other changes to the criminal procedure rules include amending Crim. R. 12(K) to accommodate the new interlocutory appeal to review a trial court’s ruling on a prosecutor’s non-disclosure of material granted under proposed Crim. R. 16(F)(2). Amendments to Crim. R. 41 permit applications and approvals of search warrants to be accomplished by electronic means, including facsimile transmission.
The amendments were adopted unanimously by the seven Justices of the Supreme Court, with the exception of Crim. R. 41, which was adopted 6-1 with Justice Terrence O’Donnell voting no.
According to the Ohio Constitution, amendments to rules of procedure must be filed with the General Assembly. After the initial filing, which must occur before Jan. 15, there was a period of public comment; the Court revised the amendments and filed final versions with the General Assembly before the constitutionally mandated deadline of May 1. The amendments take effect on July 1, unless before that date the General Assembly adopts a concurrent resolution of disapproval. The process also included another public comment period after the amendments were first published last October.
The text of the rule change is available through this link. (Mike Frisch)
An Arizona hearing Officer has recommended a public censure and probation for two years in a two-count bar disciplinary matter. The first count involved the operation of his escrow account, which the accused attorney conceded was "sloppy bookkeeping in the extreme" but had not caused client harm.
The second count was more complex and contested. The attorney was brought into a workers compensation matter that involved serious injuries. Two lawyers who had the case asked him to take over the representation and reimburse them for advanced expenses and fees of over $340,000. The attorney made the payment and took the case.
Unfortunately, the two referring lawyers (aka "those rats") concealed a potentially fatal flaw in the case. They had failed to obtain a reassignment of rights. When the attorney found out about the problem, he went ballistic. Ethics problems followed in the wake of his anger. He threatened "those rats" in order to get the payment returned and made disclosures to the court that violated his duties of confidentiality and loyalty to the clients.
As to motivation, the Hearing Officer found:
While Respondent's actions were intentional, they were focused on trying to recover money that he felt was obtained from him by deception, rather than trying to hurt his clients. This Hearing Officer believes that [the refering lawyers] did not tell Respondent of the reassignment problem, and took affirmative steps to keep that from Respondent so that he would take over what they considered to be a weak case and get them out of it. On top of that, Respondent paid them a substantial amount of money to reimburse them for their costs and fees, and they still weren't honest with him.
This Hearing Officer also believes that Respondent always intended to tell both the Court as well as his clients about the problem, in spite of his rantings and threats. While this Hearing Officer can understand Respondent's umbrage, what cannot be understood or excused are [his] threats and overt actions in filing the gratuitous [pleadings]...
The attorney has been in practice for almost 30 years. The Hearing Officer found the case "unique" and found that the clients had suffered no harm. (Mike Frisch)
April 28, 2010
Watch Who You Treat Rudely
The New York Commission on Judicial Conduct censured a non-lawyer village court justice for misconduct in presiding over two traffic matters.
One matter involved a defendant who had appeared before the justice on many prior occasions. The justice "coerced a guilty plea by threatening to set bail" and warned the defendant that he could spend a month in jail awaiting trial. He did release the defendant, but "showing bias and prejudgment, [the justice] warned the defendant to 'bring money' when he appeared for trial."
The defendant complained to the Commission about the justice. That complaint caused the justice to deny a request for extension that was routinely granted in other cases. The justice denied the request and stated: "You turned me in to the state and you want me to do you a favor?"
The second incident involved a defendant and his father who the justice believed had treated the court clerk in a rude manner. The justice threatened the father with jail and charges if there was further harassment.
Why was the judge so angry? The court clerk is his wife. (Mike Frisch)
As Minnesota Goes, So Goes Wisconsin
The Wisconsin Supreme Court imposed the reciprocal discipline of license revocation of an attorney disbarred in Minnesota for misappropriation of funds due to his law firm. The court described the facts:
On October 14, 2009, [the] Attorney...pled guilty to one count of felony theft by swindle in an amount more than $35,000, in violation of Minn. Stat. § 609.52, subds. 2(4) and 3(1). His guilty plea was based on his misappropriation of funds from the law firm where he worked as a partner. Attorney...'s misconduct violated the Minnesota Rules of Professional Conduct. The stipulation between Attorney...and the OLR states that by virtue of being disbarred by the Minnesota Supreme Court for his misconduct, Attorney Rothstein is subject to reciprocal discipline pursuant to SCR 22.22. Attorney...stipulates that he does not claim any of the potential defenses articulated in SCR 22.22(3)(a)-(c). Attorney Rothstein stipulates to the revocation of his license to practice law in
Wisconsin, reciprocal to the discipline imposed in . Minnesota
April 27, 2010
Sense and Nonsense at the Goldman Hearings
Posted by Jeff Lipshaw
Thoughts in no particular order:
1. Ben Heineman, the former Senior V.P. and General Counsel of General Electric has some thoughtful comments on the difference between legal and right (at the Harvard Forum on Corporate Governance and Financial Regulation), and how Goldman Sachs ought to be approaching that issue from a public relations standpoint. I'm not even sure the Goldman Sachs market making was wrong, much less illegal, but I agree with Ben that there's no mileage at this point in Wall Street taking the "millions for defense but not a penny for regulation" posture.
2. As many readers know, I was a big firm, big case litigator for the first ten years of my career, and as I mentioned to someone in the last few days, when I see somebody walking down the street with a Redweld file or a big litigation briefcase, or a I see a deposition transcript, my stomach (21 years later) still turns over. That's what these hearings do to me as well. I'm from Michigan, and I've known Carl Levin and his extended family for years (his wife Barbara was an associate in my law firm the summer of 1978 when I was a summer clerk and he was still the president of the Detroit City Council and running for the Senate against Marvin Esch), and I think he's a smart good guy with tons of menschiness. But he is a politician through and through, and there's no winning and, indeed, very little reason, when politicians are doing the front of the house rather than the backroom stuff. The Congress has no basis for moral superiority if we are really going to start looking at how the sausages of the markets and legislation get made. I was an industry representative at a meeting the automotive suppliers held with the two Michigan senators back in about 1998, and I remember Senator Levin telling the group why he wouldn't support NAFTA: it was the usual "good is the enemy of the perfect" rationalization. Said he, when everybody is a free trader, I'll support being a free trader. I remember thinking, "wait a minute, Senator, would you take the same position on affirmative action? That is, preferences are vile, and so I'll simply wait until everybody is colorblind." No, you can't win by reasoned argument or facts with people who buy ink by the barrel, and you can't win with senators who want to create sound bites for their constituencies.
3. Why does the conversation between the Senate Committee and the Goldman men (see next comment) remind me of the bumper sticker "My Kid Beat Up Your Honor Student"?
4. Why are all of the Goldman witnesses young to middle-aged trim athletic looking white men?
Conviction Leads To Consent Suspension
The Pennsylvania Supreme Court approved a consent disposition and imposed a suspension of a year and a day based upon an attorney's conviction at a jury trial of crimes that adversely reflected on fitness to practice law. The attorney resided with a person who was estranged from his wife. The estranged wife lived across the street from them.
The offenses arose out of an altercation between the attorney and the estanged wife on the street in front of their houses. The wife called 911 and things got worse from there. The attorney drove off and the wife jumped on the hood of the car in order, she contended, to avoid getting run over. The police saw the attorney driving recklessly with the wife clinging to the front of the car. There was a crash (the attorney's car hit the responding police cruiser) and the wife was injured. The responding officer knew the attorney and the wife from previous encounters.
The attorney was convicted of reckless endangerment, criminal mischief and careless driving. She was acquitted of other charged offenses.(Mike Frisch)