April 27, 2010
Judge Not Thy Neighbor
A justice court judge of Jefferson Davis County was publicly reprimanded and suspended without pay for six months by the Mississippi Supreme Court. The judge had presided over a case where he had known both parties. He had known one of the parties all her life, had served with her father on a church board, and had performed yard work on the property at issue in the eviction case (the judge had a yard services business). The judge had tried to negotiate a sale of the property at issue between the parties and had made comments in court that caused the other party concern. A recusal motion was made and denied.
A concurring opinion felt that "Quite frankly, in today's vernacular, I am of the opinion that [the judge] has issues." The opinion called the judge's behavior "bizarre." Another concurring opinion noted that it is not uncommon in rural, sparsely-populated areas of Mississippi for a judge to have known a party all thier life. The justice opines that such a relationship alone would not merit recusal. (Mike Frisch)
The Wrong Way To Wind Up A Practice
The South Carolina Supreme Court imposed a definite suspension of no longer than two years and ordered restitution in a matter where the attorney left practice for a different career. The facts:
Respondent operated a solo practice in Barnwell for approximately fifteen years. In October 2007, she closed her law office after training to teach high school. At the time, respondent had more than fourteen active clients. She did not notify her clients, opposing counsel, or the courts that she had ceased practicing law. Further, although she had ceased going to her office, she did not make arrangements to have her mail forwarded or to notify the South Carolina Bar of her current mailing address.
In April 2008, respondent was suspended from the practice of law for non-payment of license fees. In June 2008, she was suspended for failure to comply with mandatory continuing legal education requirements. Respondent did not notify her clients that she had been suspended.
Respondent failed to respond to several inquiries from ODC and to Notices of Full Investigation. Although she did appear to give statements pursuant to subpoena in two matters, she did not produce all of the subpoenaed records or her trust account records. On October 1, 2009, respondent was placed on interim suspension after she failed to respond to subsequent disciplinary inquiries and failed to appear for a Rule 19(c), RLDE, interview in September 2009. Id. At the time of her interim suspension, respondent still had not informed her clients that she had closed her law office.
The sanction was ordered retroactive to the date of the interim suspension. (Mike Frisch)
Verdict First, Trial Later
A South Carolina county magistrate was reprimanded by the Supreme Court for the following:
A defendant who was charged with simple assault failed to appear for her trial before respondent. Respondent found the defendant guilty in her absence without any witness being present to offer any testimony under oath. Instead, respondent found the defendant guilty based upon the officer's written statements and witness forms.
The defendant was sent a letter which stated she had been found guilty in her absence and fined $1,092.00 to be paid within fifteen days or she would be required to serve thirty days in jail. Respondent submits she found the defendant guilty and sent the letter "to get the defendant's attention" and find out why she had not appeared at trial. Respondent explains that she intended to set the conviction aside once she heard from the defendant.
The defendant contacted respondent and explained that she did not appear for trial because she believed the county attorney was going to dismiss the case. Respondent set aside the conviction and ordered a new court date.
Respondent regrets her error. She now recognizes that she erred in finding the defendant guilty in absentia and that she should not have proceeded to trial without either party being present.
Not Fast Enough To Defeat Death
An Arizona Hearing Officer has recommended a suspension for one year followed by one year of probation in a case involving findings of a pattern of serious dishonesty. The attorney was admitted in California in 1979 and became a member of the Arizona Bar in 1999. He has no prior bar discipline.
The attorney began representing a terminally ill client relating to his estate. At the time, the client was near death, in hospice care and unable to speak. The attorney attended a meeting of family members and the client's three adult children (but not their stepmother) signed an engagement letter. The next day, the attorney directed his paralegal and secretary to promptly draft a power of attorney and a trust document for the client's signature. He further instructed his secretary to travel to the client's home as soon as the drafting was completed to secure the client's notarized signature on the documents.
The client died at 4 am that morning. The attorney knew the client had died and told the secretary she need not come with him to the client's home. The attorney brought the documents to the client's home. There, the documents were falsely signed by the client's son and witnessed by the attorney. He brought the signed documents back to his office and told his secretary that the signature on the power of attorney was authentic. At his direction, she notarized it. The fraudulent power of attorney was then used to affect estate property and the attorney thereafter represented the estate.
The stepmother initiated litigation and alleged, among other things, doubts that the power of attorney was authentic or that the deceased client was competent to execute the document. The attorney met with other attorneys in his firm about the matter but knowingly failed to disclose the false signature and his role in the matter. When the firm later learned of the forgery, it withdrew from the representation due to the conflict.
The Hearing Officer noted that the "reprehensible" lies that the attorney told his law firm prolonged the litigation and caused the firm to investigate his false denials. The children sued the firm and a confidential settlement was reached. The Hearing Officer found that the attorney lacked remorse and had only admitted the misconduct only after the law firm filed a bar complaint. Nonetheless, the Hearing Officer rejected the State Bar's call for disbarment in light of the attorney's many years of practice without prior discipline.
Watch for an appeal on the sanction by the State Bar. (Mike Frisch)
April 26, 2010
Another Disqualification Overturned
The Maine Supreme Court vacated a judgment disqualifying a Washington, D.C. law firm in a matter in which an employee claimed a hostile and discriminatory work environment while employed at the Maine Education Association.
The Association hired the law firm to conduct an investigation of the employee's allegations. The employee was interviewed by a firm attorney with her own counsel present. The attorney advised the employee that he did not represent the Association but was conducting an independent investigation. The employee claimed, but the interviewing attorney denied, that she was assured of confidentiality. The attorney later substantiated the employee's allegations of discrimination.
When the employee filed a complaint against the Association, two other law firm attorneys entered an appearance as pro hac vice counsel. The attorney who had interviewed the employee had departed. The trial court granted the employee's motion to disqualify the law firm in the litigation.
Here, the court concluded that the moving party has the burden of establishing an affirmative ethical rule violation that would result in actual prejudice. General allegations will not suffice. The trial court must make express findings in that regard. The moving party had "failed to point to any particular prejudice she has suffered or will suffer and...the [trial] court made no such finding of actual prejudice."
A concurring justice would find the question closer than the majority and views it as "better practice not to have the same firm perform a discrimination investigation and represent the employer in any resulting litigation."
A dissenting justice would affirm the disqualification order, concluding that the interviewing attorney had misled the employee into believing he was an independent investigator and had disclosed information to the employer in violation of his commitment to her. The dissent also concluded that the attorney-investigator may be a necessary trial witness. (Mike Frisch)
Not Substantially Related
The New Jersey Supreme Court has reversed an order disqualifying a law firm from representing a municipality in defense of tax appeals during 2006-2007. The court concluded that the prosecution of individual taxpayer' 2009 tax appeals against the municipality was not "substantially related" to the matters handled on behalf of the municipality. The law firm had been disqualified by the Tax Court and the order was affirmed by the Appellate Division.
The court here found disqualification unwarranted because the law firm did not receive confidential information from the municipality that could be used against it in the taxpayer appeals: "In this record, the City has not met its burden of proving that, in fact, the current and former representations are 'substantially related. ' The superficial similarity of the subject matter of both representations-- the propriety of real estate tax assessments-- does not withstand closer scrutiny." The party seeking disqualification was unable to point to any confidential information that could be used against it. (Mike Frisch)
April 25, 2010
Metaphor and Meaning: Of Bacterium, Basketball, and Bonds
Posted by Jeff Lipshaw
While I was working on the elliptical just now, I was watching a Teaching Company DVD with a University of Colorado physicist named Steven Pollock conducting a course in particle physics for non-scientists (don't ask why). He was talking about electrons and said something like "for our purposes it's okay to think about electrons as little billiard balls, but in some instances that can lead you to a very wrong conclusion."
One lesson from cognitive science is the fundamental role of metaphor in meaning. What thinking about electrons as billiard balls does is to give them a meaning by analogy to other things, and we base our view of the coherence of the explanation (not its rightness or wrongness) on how it compares to other explanations we already view as coherent. (That's what makes quantum mechanics and particle physics so hard.) I have already suggested that the entire game in the Goldman Sachs contretemps is the metaphor one uses to frame the problem: if you see Goldman as an adviser (as it would be were this a merger or acquisition), you see its statements and omissions in a wholly different light than if you see Goldman as a bookie.
And as with electrons, I was thinking about metaphors that just go wrong. I cannot now find the link, but I somebody posted something recently about the morality and sportsmanship of strategic fouling at the end of a basketball game, taking the view that the strategy was indeed morally questionable, and likely the beginning of the end of civilization as we know it. (If you know whose it was, drop me a note.) It called to mind a scene in one of my favorite books, Fantastic Voyage, by Isaac Asimov. A ship and its crew are miniaturized so they can travel through a man's bloodstream and destroy a life threatening blood clot from the inside. One peril leads to another and they are traveling through a lymph node where they witness antibodies destroying a bacterium. Here's the passage:
Cora said excitedly, "You can see them cluster. How . . . how horrible."
"Are you sorry for the bacteria, Cora?" said Michaels, smiling.
"No, but the antibodies seem so vicious, the way they pounce."
Michaels said, "Don't give them human emotions. They are only molecules moving blindly. Inter-atomic forces pull them against those portions of the wall which they fit and hold them there. It's analogous to the clank of a magnet against an iron bar. Would you say the magnet attacks the iron viciously?"
Attributing morality to fouling in basketball is the use of a metaphor to give meaning to the act. It's a way of making the act coherent in the context of the game. I think it's the wrong metaphor, but that's what makes synthetic CDO trading. To me, seeing immorality in a fouling strategy is like attributing viciousness to antibodies. In baseball, the second baseman "cheats" on a double play by not really touching the base (a "phantom double play") and the umpire still calls the runner out. In hockey, all sorts of slashing, interference, hooking, and roughing goes on - as much as can be gotten away with. You may not like it aesthetically, but it's not an issue of morality. To the contrary, in golf, you call penalties on yourself (see Brian Davis at the Heritage last week) and that's the way the game works. It's OKAY in golf to impute morality because we accept the metaphor (actually golfers - and I am one - are insufferable about that, but that's besides the point).
I think what makes basketball different is that it's one of the few instances in sport where you deliberate take a penalty because it gives you an advantage. The only other one that comes to mind quickly is the case when a football team too close to the goal line takes a delaying the game penalty to move back and improve the angle for the kicker. But the solution there (I think) is that the other side can simply decline the penalty. If the "deliberate fouling" strategy in basketball were that morally offensive and not, instead, a way to keep the fans interested in the game, there would be an easy solution - let the other team decline the penalty. But nobody really wants that change.
My point isn't about basketball, however. It's about metaphors and meaning, and mainly the reaction to Goldman Sachs. Nor do I think that there's an "appropriateness" cutoff between attributing purpose where the action is related to human volition (structuring CDOs or fouling in basketball), on one side, and attributing purpose to forces of nature (electrons and antibodies). Kant's point in the Third Critique was that it's really hard to put aside the idea of a "designer" or "purpose" when looking at forces of nature, even when there is no (and never will be) any empirical basis for believing there is a Designer (hence, our beliefs that there IS an order to the universe, even if not Designed, and principles like Ockham's Razor). So if Cora, a scientist, can react to the antibodies by inferring purpose and viciousness, no wonder that people can find the same in basketball fouling or complex Wall Street gambling, whether or not the underlying metaphors and meanings are really warranted.