January 15, 2010
Pat Robertson : Religion :: Andy Fastow : Corporate Governance
Posted by Jeff Lipshaw
Having written a law review article that wonders if a financial catastrophe bears any relationship to a natural catastrophe like an earthquake, I'm just agog when I listen to modern "theologues" like Pat Robertson mouth sentiments that were fairly common in 1755 or so. Indeed, Pat Robertson is to modern religion as Andy Fastow is to prudent financial reporting. That is, he is the knucklehead who is the basis for the availability heuristic that everybody in similar circumstances is like him. (If you missed it, the "Reverend" Pat accounts for the earthquake by the fact that Haiti "made a pact with the Devil" to get rid of the French a couple hundred years ago.) If you want to defend either corporate management or religious sentiment, these guys don't do you any favors. We have very good friends who were on a church sponsored mission at the University of Fondwa in the mountains between Leogane and Jacmel. As far as I know, they did not enter into a pact with the Devil, although I guess the Rev would say for sure they didn't because they are safely in Leogane and waiting to be evacuated.
The philosopher Pierre Bayle's reaction to theodicy (Alan, that's not a typo of "the idiocy") of this sort (even in the 17th century) was that God could be all good or all powerful, but not both. Why would an all good and all powerful God punish an innocent Haitian baby (or any innocent for that matter) in 2010 for something Toussaint L'Ouverture did 200 years ago? Any decent human being would have to conclude that you either have to reject God as being evil concept, or significantly scale back what power you are willing to attribute to God. And if this is simply an imponderable, that is, it's not for me to say that God could be evil (not understanding God's ultimate purposes), why did God give me a mind that could reason to the conclusion that God, if all powerful and allowing catastrophes, would have to be evil?
By the way, the "Caribbean pact with the devil" is not a new thing. Port Royal, Jamaica was destroyed by an earthquake in 1692, and nobody gave it a second thought among the European intelligentsia because it was, as everybody knew, a den of iniquity. Sixty-three years later, an earthquake destroyed Lisbon, and it shook the Enlightenment to its core. It didn't make sense that God would punish a good and beautiful Christian city unless it turned out that God didn't control earthquakes.
Need to Resubmit Emory Transactional Conference Proposals
This from Tina Stark at Emory:
Hello everyone. Emory's technical staff informs me that there was a problem with the Call for Proposals online submission process. As a result, any proposal that was previously submitted has not been received. The technical team has corrected the problem and the new call for proposals form may be found here.
If you previously submitted a proposal, please resubmit it using the link above. We sincerely apologize for the inconvenience and look forward to your participation in the conference.
For The Sake Of The Children
An attorney was retained by a surviving spouse on her own behalf and on behalf of her two children to prosecute a wrongful death action. The complaint was not timely served and the case was dismissed. The client hired new counsel to sue for legal malpractice and that case was dismissed on statute of limitations grounds.
The Nebraska Supreme Court held that the claims of the children were not time-barred, as the statute was tolled until they reach the age of majority. The court held that the privity requirement is not absolute in a legal malpractice action. Rather, the attorney had an independent duty to the children. (Mike Frisch)
January 14, 2010
"Reprehensible" But Not Disbarable
The Illinois Review Board has rejected the Administrator's call for disbarment in the much -publicized case involving Loren Friedman. Rather, the board proposes an 18 month suspension with fitness. The board found the following facts:
Respondent attended medical school at the University of Illinois for approximately one year, until he was dismissed for poor scholarship on August 30, 1999. Respondent applied to law school at the University of Chicago in December 1999. Despite the fact that the application requested a list of all professional schools that Respondent attended and asked whether he had ever been dismissed or placed on academic probation at any college or university, Respondent did not disclose that he attended and was dismissed from medical school. Respondent admitted that he purposely omitted his medical school attendance information from the application because he thought it would harm his chances of being accepted to law school.
Respondent was admitted to the University of Chicago Law School and began his studies there in August 2000. During his second year of law school, Respondent submitted his resume and an altered law school transcript to ten to fifteen law firms as part of his search for a summer associate position. Respondent’s grades during his first year of law school were the equivalent of eight C’s and two B’s. However, he altered his transcript so it appeared that he had received the equivalent of four A’s and six B’s. In addition to using the transcript to obtain a summer associate position, Respondent also used it to obtain a job as a law clerk at the firm of Sheats & Kellogg during the 2001-2002 school year.
The law firm of Sidley Austin LLP (Sidley) offered Respondent a summer associate position. Respondent had given Sidley his altered transcript as part of the interview process. Respondent accepted Sidley’s offer and worked there from June 2002 through August 2002. During his employment, Respondent gave Sidley a second altered transcript containing his second-year grades, all of which he had changed.
In addition, Respondent plagiarized a portion of a paper he submitted in his Law, Science and Medicine class in the spring of 2002. His professor, Julie Palmer, reported him to Saul Levmore, the law school’s dean of students. As a result, Respondent was required to submit to Levmore all of the papers he wrote for the remainder of his law school career. Respondent told Levmore that he did not intend to plagiarize, but was merely careless. At the time, Levmore did not know that Respondent had altered his transcripts or misrepresented his academic history on his law school application. Levmore would have convened a disciplinary committee to review Respondent’s actions had he known of Respondent’s other transgressions.
After graduating from law school, Respondent worked as a clerk for a bankruptcy judge. He submitted his true transcript to the judge. Sidley had offered Respondent permanent employment but he did not accept the offer because he knew he had obtained his summer associate position under false pretenses.
Respondent applied for the New York bar in 2003 and was required to submit a copy of his law school application to the bar examiners. Respondent sent a letter to the University of Chicago Law School Dean of Students, Ellen Cosgrove, stating that he was "very surprised to note that [he] had not disclosed in the law school application that I had attended the University of Illinois Medical School for one academic year." Respondent was licensed in New York on January 25, 2006.
Respondent applied for admission to the Illinois bar on December 25, 2005. In his application, he disclosed his dismissal from medical school and also disclosed that he had omitted this information from his law school application. He did not disclose that he had altered his law school transcripts.
In April 2007, Michael Sweeney, a hiring partner at Sidley, received e-mail correspondence from a legal search firm that was trying to find employment for Respondent. A copy of Respondent’s actual law school transcript was attached to the correspondence. Sweeney asked the attorneys who had recruited Respondent why they offered him a job given the grades shown on his transcript. Sweeney then looked at the transcripts that Respondent had submitted to Sidley and, after discussing the discrepancies with his partners, called Respondent. Respondent admitted to Sweeney and John Levi, another Sidley partner, that he had changed his grades.
In a second telephone conversation, Sweeney told Respondent that Sidley would give him the opportunity to report his actions to the Illinois and New York disciplinary authorities instead of Sidley doing so. He also told Respondent that Sidley would report his activities to the University of Chicago Law School. On May 10, 2007, Respondent sent letters to the Illinois and New York bar admission and disciplinary authorities disclosing that he falsified his transcripts.
In mitigation, Respondent presented the testimony of Delaware attorney Megan Cleghorn, New York attorney John Katsanos, and Illinois attorneys Ennedy Rivera and Jacob Hildner. Each witness testified that Respondent has a good reputation for honesty and integrity.
As to sanction:
While reprehensible, Respondent’s misconduct did not harm any clients. Neither is there any indication in the record that Respondent acted dishonestly while practicing law in New York. Based on his sincere remorse and his acceptance of responsibility for his actions, it appears that Respondent has learned from his mistakes. In our view, a suspension of eighteen months UFO is sufficient to protect the public, deter others from engaging in similar misconduct, and require Respondent to satisfy his obligation of establishing his character and fitness before resuming practice.'
The term "UFO" means until further order and not until aliens land in Chicago. (Mike Frisch)
I'll Take Manhattan
An attorney convicted of criminal offenses was disbarred by the New York Appellate Division for the Third Judicial Department:
Considering the serious criminal conduct underlying respondent's convictions, which included his involvement in and profiting from a high-priced Manhattan escort-prostitution ring, we direct respondent's disbarment from the practice of law, effective immediately.
Here's a related post from the Village Voice ("Lawyer Gets Off Light for Running Whorehouse...").
The attorney is a former prosecutor charged with far more serious offenses as reported here.
Clean, Sober And Ready To Practice Law
An Arizona hearing officer has "without reservation" recommended the immediate reinstatement of an attorney who had been suspended for one year. The attorney had represented a defendant at a criminal trial while under the influence of cocaine and had lied about it in the ensuing post-conviction proceedings. The defendant had been granted a new trial in the criminal case.
The hearing officer found that the petitioner had been clean and sober since August 2006. He had not resorted to drug use nothwithstanding the "incredible stess" of his circumstances. Further, he has spoken to law students and lawyers about his experiences. The hearing officer also commended disciplinary counsel, who had supported the petition. (Mike Frisch)
The Answer Is "Maybe"
The Massachusetts Committee on Judicial Ethics has recently opined on the propriety of a judge allowing a local foundation to pay for two nights lodging at a drug court conference. The committee concludes:
In sum, you [the inquiring judge] should conduct a two step analysis. (1) Based on the totality of the circumstances you must determine if a disinterested observer would question your impartiality if one of the attorneys who participated in the Foundation decision to provide reimbursement for lodging was involved in a case in front of you. If the attorneys involved in the Foundation decision are unlikely to appear before you, or if recusal would not be required, then the Code poses no obstacle to accepting the reimbursement. (2) If recusal would be required, then you must determine if acceptance of the reimbursement would interfere with your judicial duties.
Solicitation Regulation Upheld
The District of Columbia Court of Appeals affirmed the grant of summary judgment against an attorney-plaintiff who had challenged an act adopted by the City Council that made it unlawful for professionals (including lawyers) to solicit business within 21 days of a motor vehicle accident "with the intent to seek benefits under a contract of insurance or to assert a claim against an insured, a governmental entity, or an insurer on behalf of any person arising out of the accident." The court rejected the attorney's First Amendment challenge to the provision, applying the analysis of the U.S. Supreme Court's precedents. The court in particular relied on Florida Bar v. Went For It.
The court noted that the act contains several exemptions from the 21 day ban, including immediate solicitation of legal business through the mail. The court also noted that there was evidence that victims are inundated with solitications in the wake of an accident. The court also rejected the contention that the act interfered with its authority to regulate the practice of law. (Mike Frisch)
What You Have To Do To Get Disbarred Around Here
In a 2-1 per curiam opinion, the District of Columbia Court of Appeals ordered the disbarment of an attorney who had submitted a fraudulent voucher for payment in a court-appointed criminal matter and testified falsely in the ensuing bar discipline hearing. The court had earlier remanded the case to its Board on Professional Responsibility for a finding concerning the false testimony and its impact on the appropriate sanction. The court majority rejected the board's proposed sanction of a two-year suspension with fitness.
The court majority found the misconduct to be extremely serious such that it "falls into a category of dishonesty of a flagrant kind we have held disbarment to be the appropriate sanction." The false testimony in the bar hearing "massively outweighed" any mitigating factors. The majority rejected the dissent's suggestion that it was creating a new category of cases where disbarment is the presumed sanction: "our holding is fact-specific and does not involve presumptive discipline...[disbarment is appropriate on these facts]...We hold no more;no less."
The dissent discusses the D.C. dishonesty precedents at length and concludes that the board's recommendation is within the range of discipline imposed in prior cases.
A good day to be a member of the D.C. Bar. (Mike Frisch)
January 13, 2010
Emory Transactional Skills Conference - Reminder Notice!
Emory University School of Law’s Center for Transactional Law and Practice is delighted to announce its second biennial conference on the teaching of transactional law and skills, Transactional Education: What’s Next? The conference will be held at Emory Law on Friday, June 4 and Saturday, June 5, 2010.
CALL FOR PROPOSALS
We are accepting proposals immediately, but in no event later than 5:00 p.m., February 1, 2010. We welcome proposals on any subject of interest to current or potential teachers of transactional law and skills. Details follow the fold.
To submit a proposal, please click here. Once again, the deadline is 5:00 p.m., February 1, 2010.
Emory is delighted to once again host this Conference, and we look forward to seeing you in Atlanta June 4th and June 5th.
The Steering Committee
Tina L. Stark, Chair, Emory University School of Law
Danny Bogart, Chapman University School of Law
Deborah Burand, University of Michigan Law School
Joan MacLeod Heminway, The University of Tennessee College of Law
Jeffrey Lipshaw, Suffolk University Law School
Jane Scott, St. John’s University School of Law
Each panel will be 90 minutes long.
1. Contract drafting – the “building block” for all transactional lawyering· The five basic contract concepts as the foundation of contract drafting (representations and warranties, covenants, conditions, discretionary authority, and declarations)
· How to draft the different parts of a contract (introductory provisions, definitions, etc.)
· Writing clearly and without ambiguity
· Advanced contract drafting issues (syllabus, teaching methods, etc.)
2. Teaching transactions in an international setting· The basic framework of contract law in civil law jurisdictions
· The drafting of contracts in civil law jurisdictions
· Business transactions in accordance with Islamic law
· Simulations as a mode of teaching
· Integration of international issues into transactional skills courses
· Cultural issues affecting the negotiation of international transactions
· The use of clinics to teach international transactions
· How non-U.S. law schools are teaching transactional skills
· Teaching foreign LLM students about drafting in a common law country
3. Teaching contract drafting for the first time from a legal writing professor’s perspective4. Teaching transactional skills in a doctrinal course
· Business Associations
· Corporate Finance
· Employment Law
· Intellectual Property
· Other courses
5. Teaching accounting from a transactional perspective
6. Teaching ethics from a transactional perspective
7. Teaching transactional skills other than contract drafting· Problem solving
· Interviewing and counseling
· Written communication: memoranda to superiors and clients
· How, if at all, does pedagogy differ from that used when teaching these skills in the litigation context
8. Teaching transaction-related tasks· Project management
· Due diligence
· Third party opinion letters
· Drafting of resolutions
9. Transactional training techniques (including technology such as clickers and Google Docs)
10. Curricular Issues· Field placements/externship programs
· The role of adjuncts in a transactional skills curriculum
· Interdisciplinary courses, including JD/MBA courses
11. Transactional Centers and Certificates· Why have a center
· How to start and then run a center
· What is a transactional certificate program
We will also reserve several panels as “Exercise Showcases.” Each will be 90 minutes long. At each of these panels, professors will each take approximately 15 minutes to demonstrate an exercise he or she uses to teach a transactional skill or task or a principle of doctrinal law. In addition, we hope that each of the other panels, when appropriate, will take the opportunity to showcase an exercise.
At this conference, we will introduce Lunch Roundtables. They will be 40 minutes long. These will be informal group discussions of topical issues. If you would like to lead a Roundtable, please submit a proposal as you would if you were proposing a panel.
ONLINE DATABANK OF TEACHING MATERIALS
As transactional education has expanded, the need for high quality training materials has continued to grow. Unfortunately, we do not yet have enough textbooks that adequately address our needs. As a result, professors labor to create materials for their courses. Currently, gaining access to these terrific teaching materials is generally by word of mouth or a request on a listserv. One goal of this conference, therefore, is to create a databank of teaching materials available to professors and practitioners. The databank will be known as The Emory Exchange for Transactional Training Materials. It will store (for eligible users) syllabi, PowerPoint slides, exercises and other transactional teaching materials that professors and practitioners submit. Our hope is that the Exchange will facilitate the growth of transactional education by being a source of high quality teaching materials. If you would like to submit materials separately from submitting a proposal for the conference, please click here.
REGISTRATION AND HOTEL INFORMATION
Information on registration and hotel reservations will be distributed in early 2010. To keep the costs for registrants as modest as possible, speakers must pay the registration fee and for their own travel expenses.
ALI-ABA Offers Legal Ethics CLE via Web or Phone on Jan. 20, 2010It's next Wednesday (January 20) at 1:00-2:00 eastern, and presented by two leading writers on law practice and ethics, Daniel Capra and Gregory Joseph. The subject is attorney-client and work-product privilege and new Rule 502 of the Federal Rules of Evidence. Link here. [Alan Childress]
Discovery Denied In Hearing Over Bar Exam Failure
An applicant who had failed the February 2008 bar examination requested information from the North Dakota Board of Law Examiners for a hearing concerning the non-admission recommendation. The North Dakota Supreme Court agreed with the district court that the information sought was specifically exempt from public disclosure and did not fall within any exception. The facts:
Based on the results of Lamb's February 2008 bar examination, the State Board of Bar Examiners recommended Lamb not be admitted to the Bar of North Dakota. Lamb requested a formal hearing under Admission to Practice R. 10(B) before the State Board of Law Examiners. Before the hearing, he moved for discovery requesting information about: (1) grading techniques; (2) how raw scores are converted; (3) whether the Board performs periodic assessments of its scores; (4) whether a report is available of psychometric procedures; (5) whether the Board has an ongoing assessment of its procedures; (6) what practices the Board uses in maintaining acceptable standards; (7) how the essay scoring judges are trained; (8) whether a content analysis has been conducted to measure the relationship of questions to being competent in the legal profession; and (9) security measures and related bar examination information. The Board's Hearing Panel denied his motion, but provided information regarding: (1) selection and preparation of graders; (2) grading guidelines given to graders; (3) selection of test questions; (4) how often the pass fail policy is reviewed; (5) where the conversion and scaling of scores are performed; and (6) where the Multistate Performance Test and Multistate Essay Examination questions are prepared. Lamb also emailed the secretary-treasurer of the Board and requested information under the open records laws. In response, the Board provided its annual reports for the past ten years. Lamb requested an Attorney General's opinion on whether the Board had violated the open records law. The Attorney General did not consider Lamb's request because Lamb submitted it more than thirty days after the alleged violation.
Lamb applied for a writ of mandamus to the district court. In his application, he asked the district court to compel the Board to provide "certain requested information . . . which was submitted in a formal request to the Board, and denied." He also asked the court to order the Board to provide information and documentation regarding the February 2008 bar exam procedures, including "e-mails, phone messages, letters, memoranda, notes, minutes of meetings, training materials, and all relevant documentation." After the parties submitted briefs, the district court heard oral argument. The district court issued an order denying Lamb's application for a writ. In its order, the district court noted that the Board had provided Lamb with a great deal of information including: a copy of his two personal Multistate Performance Test question and answer booklets with the drafter's point sheet and model answers for each, a copy of his personal six Multistate Essay Examination question and answer booklets and the analyses for those questions, and a copy of the North Dakota State Board of Law Examiner's Grading Guidelines. The court also stated it was unable to identify any confidentiality exceptions relevant to Lamb's case under the North Dakota Century Code, North Dakota Constitution, or North Dakota Admission to Practice Rules. Therefore, the court concluded that Lamb failed to establish he had a clear legal right to the information because he could not demonstrate the information was an exception to the confidentiality provisions of the Admission to Practice Rules or an open records exception under N.D.C.C. § 44-04-18.8. Lamb appeals both the memorandum decision and order denying his writ of mandamus and the order denying the motion to reconsider.
The court here concluded that mandamus relief was not available. My experience suggests that this approach to a failure can be, at best, unhelpful in securing eventual admission. (Mike Frisch)
Out Of The Fryn' Pan
The North Dakota Supreme Court imposed a 60 day suspension of an attorney for lack of diligence and failure to communicate with a divorce client. The attorney was in the process of closing her practice when the client contacted her legal assistant and daughter (who was not an attorney) about obtaining representation. Most of the communication was with the daughter, although the attorney met with the client four times. Three of those meetings were conducted in the Fryn' Pan restaurant in Fargo.
A hearing panel accepted the client's version of events over that of the lawyer. The lawyer had conceded that there was no contact with the client for almost two years. The hearing panel found that the lawyer "did not reasonably act to secure a timely resolution of the divorce, but rather relied on her non-lawyer daughter to oversee and pursue the matter." Eventually, the lawyer completed the representation and secured the divorce for the client.
The lawyer had previously been admonished four times. (Mike Frisch)
No Need For Complete Record
The Oklahoma Supreme Court accepted the resignation of an attorney who was subject to disciplinary charges as a result of a conviction for possession of obscene material. The court described the procedural posture of the matter at the time of the proferred resignation:
On December 10, 2008, the Oklahoma Bar Association (Bar Association), notified the Office of the Chief Justice that the respondent...(lawyer/respondent), had pled guilty to possession of obscene material in Texas and had been given a four year deferred sentence. On August 21, 2008, the Board of Disciplinary Appeals appointed by the Supreme Court of Texas (Board), issued a judgment of suspension which suspended the respondent during the term of his deferred adjudication (until April 23, 2010).
On March 30, 2009, the Court referred to the Professional Responsibility Commission to initiate and conduct disciplinary proceedings immediately to develop a complete, non-piecemeal record examining the circumstances giving rise to the criminal charges including the respondent's involvement/knowledge regarding the child molestation incident and the facts surrounding it which may or may not demonstrate an unfitness to practice law.
On September 12, 2009, the Oklahoma Bar Association filed a complaint which was independent of the reciprocal discipline imposed by Texas. The matters were consolidated under one surviving case number on October 20, 2009. On December 22, 2009, the Respondent voluntarily resigned from the Oklahoma Bar Association, and the Association filed an application for approval of resignation.
The court noted that resignation is tantamount to disbarment. (Mike Frisch)
A "High Functioning" Cocaine User
The Massachusetts Supreme Judicial Court has imposed indefinite suspension rather than disbarment in a case involving misappropriation. Bar Counsel had sought disbarment. The court recounted the facts:
Before [the attorney] was admitted to the Massachusetts bar in 1992, he had abused cocaine and other illegal drugs on and off for many years. Despite his addiction, he was a "high-functioning" cocaine user throughout the 1990's and early 2000's. In 2001, [he] acted as escrow agent for the proceeds from the sale of a marital home, in connection with a divorce matter in which he represented the husband. The client's (husband's) share of those proceeds, approximately $50,000, were intended to cover his living expenses and to guarantee his child support obligations. In April, 2002, [he] loaned $7,000 from the account to a friend of his without the client's knowledge or authorization. The following month, the friend repaid [him] the $7,000, but [he] deposited it in his own business account rather than in the escrow account. [He] spent most of the $7,000 for his own personal and business purposes. Accountings of the escrow funds that [he] prepared in 2003 and 2004 failed to disclose the loans he had made, and falsely indicated that the account included $6,600 that was actually missing.
By the summer of 2004, [his] drug abuse had increased to the point where he was using cocaine daily. In early 2005, [he] ended his representation of the client and his role as escrow agent. Beginning in January, 2005, and over the course of the following six months, he participated in, and successfully completed, residential and other programs for treatment of his addiction. In February, 2005, [he], on his own accord, repaid the client $3,000 of the outstanding $6,600 he took from the escrow account. Later the same month, [he] self-reported his misappropriations to bar counsel; he assumed inactive status, and completed or referred his outstanding cases. No longer practicing law, [he] earned a master's degree in education and now teaches history and law in the Boston public school system, coaches hockey and baseball teams, and runs a mock trial program. As part of his coaching, he warns students about the dangers of illegal drug use.
The full court affirmed the order of a single justice, modified to include a repayment condition:
In ordering [the attorney] indefinitely suspended--a somewhat lesser sanction than disbarment, see S.J.C. Rule 4:01, § 18(2)(a) & (b), as appearing in 430 Mass. 1329 (2000) (period before which disbarred attorney may generally petition for reinstatement is eight years while for indefinitely suspended attorney it is five years)--the single justice did not impose a sanction markedly disparate from those imposed in comparable circumstances. Setting aside the question whether [his] cocaine addiction caused or otherwise contributed to his misappropriations (or whether, even if it had, his addiction to an illegal drug should be considered a mitigating factor) the other circumstances of this case support the single justice's choice of an indefinite suspension over disbarment. The sanction is justified in light of [his] taking responsibility for his actions by self-reporting his misdeeds; voluntarily repaying a substantial portion of the money he took and acknowledging his obligation to repay the remainder; successfully completing substance abuse treatment programs; and devoting his energies to the worthy endeavors of teaching in the Boston public schools, coaching sports teams, and using his experiences to teach young people about the dangers of illegal drug use.
The case is Matter of Collins, decided January 12, 2010. (Mike Frisch)
Consitutional Challenge Leads To Suspension
A Nashville attorney has been suspended for 30 days, according to a recent post on the web page of the Tennessee Board of Professional Responsiblity. The post does not describe the misconduct found with any particularity but states that the attorney had "filed frivilous litigation and made statements with reckless disregard of their truth or falsity concerning judges."
The NashvillePost.com previously reported on the case, noting that the attorney had been "fighting for years to uphold a clause in the Tennessee Constitution that bars those from seeking public office to serve "meat and drink" to voters. He had also sought to declare as unconstitutional the Tennessee system for judicial retention/election and had sought recusal of all judges who had heard the case because they were either selected through that process or were appointed by someone who was.
A hearing panel had recommended public censure. Both sides appealed. A special judge appointed by the Tennessee Supreme Court entered an order of 30 days suspension. The appeal of the attorney to the Supreme Court was dismissed for failure to file an appeal bond or pay the litigation tax. (Mike Frisch)
January 12, 2010
Former Speaker Disbarred
The Massachusetts Supreme Judicial Court has remanded a disciplinary matter to a single justice for entry of an order of disbarment against a former Speaker of the House who had served in that capacity from 1996 to 2005. He had pleaded guilty in federal court to obstruction of justice as a result of his testimony in a voting rights case. The court here considered whether disbarment or indefinite suspension should be imposed and chose disbarment:
...we find no persuasive reason not to impose the presumptive sanction of disbarment or indefinite suspension. The final task, therefore, is to decide which of these two alternatives provides the most appropriate disposition. To make this determination, we turn to the primary factor for consideration in all bar discipline cases, "the effect upon, and perception of, the public and the bar." The hearing panel credited the testimony of the respondent's several character witnesses, who stated in effect that the respondent's criminal conduct was aberrant and out of character, the respondent was remorseful, he had been sanctioned or punished enough by virtue of his conviction and his suspension from the practice of law, and a relatively short-term suspension would not have an adverse impact on public perception of the bar. The dissenting member of the board agreed with this analysis of impact on public perception. The board did not. In the board's view, a departure from what it saw as the "usual sanction of disbarment" in a case where the respondent had "lied about his own actions as a public official in federal court[ ] and which endeavored to obstruct a meritorious action to vindicate the voting rights of people of color" would likely be outrage.
The respondent's misconduct implicates both the integrity of the judicial system and the honesty of a member of the bar. We have no reason to disagree with the finding that the respondent's conduct during the voting rights lawsuit represented an aberrant event in his long career of serving his constituency and the public with loyalty and distinction. But the respondent was convicted of a serious crime involving false testimony to a court under oath in a significant case about fundamental rights. We share the board's view, which is "entitled to substantial deference," that the public perception of the bar would be gravely damaged if this court were to impose a sanction less than the generally applicable one of disbarment. (citations and footnotes omitted)
The case is Matter of Finneran, decided January 11, 2010. (Mike Frisch)
January 11, 2010
Fen Phen Fraud Permanent Disbarment Recommended
A Louisiana hearing committee recently recommended permanent disbarment of an attorney convicted of conspiracy and fraud for his involvement in fling fraudelent claims to compensate Fen Phen victims. The attorney was the head of his law firm's mass torts section and was "one of several attorneys across the country who entered into a fee-splitting and referral-fee agreement to recruit clients" for Fen Phen settlements.
Review of the materials submitted led to the discovery of "numerous instances where the proof was identical for multiple claimants and where the proof of [product] usage extended beyond the time when the drug was removed from the market." The Fifth Circuit affirmed the conviction, finding that the lawyer's firm had employed a person who had built a network of people to help locate claimants and assist in preparing false claims. There were 82 identified potential false claims that resulted in a loss to the settlement fund of over $6.7 million. (Mike Frisch)
New Montana Rules ProposedThe Montana Supreme Court has issued an order setting a 90-day period for comments on a petition filed by the State Bar Board of Trustees and the Ethics Committee to revise and amend three rules that deal with attorney advertising and solicitation. The proposed amendments would, according to the petition, clarify disciplinary jurisdiction over attorney advertising, specifically identify types of misleading communications and recognize that the state has no procedure to "qualify" a lawyer referral service. (Mike Frisch)
Bar Counsel Professionalism Report Now Available
The National Organization of Bar Counsel (NOBC) has drafted a professionalism report for consideration by law schools. The report may be found through this link. The conclusion:
It is time for law school accreditation standards to require law schools to develop plans for meeting the goal of inculcation of professional identities. Those plans should reflect a higher level of commitment to instilling the professional values outlined in the Carnegie Report. Each plan should also reflect ways of measuring that commitment. Great steps are already being made by some schools by way of innovative reforms, but as the ABA Professionalism Committee's Survey on Professionalism found, the efforts need to be more continuous and comprehensive throughout all three years of law school. (“Report on a Survey of Law School Professionalism Programs,” March 2006, Introduction and Executive Summary, p. ii) Justice Veasey, who chaired the ABA Ethics 2000 Commission, has said that we are engaged in a battle for the soul of our legal profession. (E. Norman Veasey, “The Role of State Supreme Courts in Addressing Professionalism of Lawyers and Judges, Keynote Address at ABA Conference: Regulatory Authority over the Legal profession and the Judiciary: The Responsibility of State Supreme Courts,” March 14-15, 1997) If not tied to a person of high character, a well-trained legal mind combined with a well-established skill set can be a danger to both society and the clients the profession serves.
Placing a greater emphasis on the values and conduct of law students will not be easy and will surely present challenges. Study will be needed to determine the most effective ways to inculcate professional values. In addition to providing a basis for determining the effectiveness of specific approaches in dealing with early signs of unprofessional conduct, a school’s adoption of particular remediation measures will signal a changed attitude toward the development of appropriate professional identities in law students.
NOBC does not ask for a uniform approach to meeting these important goals. One school may set forth a plan with a new remediation program such as an ethics school. Another may start with a more comprehensive code of conduct. Another institution may place an emphasis on a changed third year with more clinics, simulations and practical training. What NOBC calls for, however, is recognition that all schools should be held accountable for meeting the goals of the Carnegie Report. How schools will meet those goals should be specifically stated in professionalism plans with outcome and input measures. The more continuous and comprehensive the process, the more likely the goal will be met. The more specific the plan, the easier it will be to replicate successful efforts and learn what works and what does not work.
Because law schools have this significant opportunity to shape the professional identity of lawyers, schools must be accredited in a way that their commitment to professional identity development is encouraged, required and measurable. Only by doing so can we meet the expectations of our profession and society. We must not only say that professional identity and character count; we must also demonstrate that they are foremost in the requirements for becoming an attorney.
NOBC joins in the call of the ABA Outcome Measures Committee that law schools be required to define goals, specific approaches and methods to measure commitment and success. NOBC hopes this report will assist in continuing that movement.