Saturday, June 19, 2010
Posted by Jeff Lipshaw
The always insightful and interesting Howard Wasserman (FIU, left) provoked a discussion over at PrawfsBlawg on "student centered" teaching that, in the comment thread, turned into that ancient debate about all those theorist law professors at odds with their practical minded students. I posted a comment, responding to "Vladimir" and "BL1Y", that I thought was worth re-posting here. I think, as a long time practitioner AND law professor (me) interested in highfalutin' theory (that is, given my odd background, I think I could teach a jurisprudence class, a trial skills class, and a transactional skills class), I have some credibility on both sides of the issue.
How the legal academy came to its present configuration wasn't the result of some logical exercise, but a matter of historical happenstance. That's not uncommon. Most intractable social and political realities arise that way (see Northern Ireland or Israel-Palestine). The reality now is that you are both correct in your fundamental observations: there IS a gap between what most law students want (unless they go to Yale) out of their educations, and what most law professors want out of their careers. It may well be that something like the financial crisis of the last couple years, and the shrinking of big law firms engenders a complete restructuring of the legal academy into a Ph.D. like "department of jurisprudential studies" with its place in the College of Arts and Sciences, and more trade school like professional schools, but I doubt it for two reasons that undercut both polar positions.
1. Law professors can't merely be theorists and have their gravy train survive. What allows so many law professors to engage in theory is the fact that their students who have little such interest fund the theoretical pursuit. First, law schools are notorious cash cows. When is the last time you heard of anyone organized a proprietary or for-profit sociology department? The cost of providing the education, unlike in the hard sciences or med schools, is relatively low compared to the market price of the tuition. Second, it's the salaries in private law firms that by and large set the benchmark for law professor salaries. Even if you take a pay cut to move into academia from the big law firm that is the typical immediate pre-professor job, you aren't getting paid like an assistant professor in the English department.
2. Law students don't REALLY want to be trained in the legal equivalent of the barber college or truck driver school. While law students may get frustrated with the theory often foisted upon them by their professors, the present paradigm in the academy (and, honestly, this preceded the influence of US News, because the elite schools in US News were the elite schools when Bob Morse was still wearing short pants), they show over and over again that they are significantly influenced by the brand of the law school, regardless of the specifics of the pedagogical program. And the brand, as the institution of the legal academy has developed, has a lot to do with all that theoretical stuff law professors are churning into law review articles. I'm not arguing that is good or bad (although I wouldn't be a law professor just to teach; it's the theory that floats my boat after all those years of practice); it's just the reality. Seriously, tell me that a rational student, faced with the choice of Stanford or UCLA, with all those practice-challenged theorists, or an excellent "skills-focused" third or fourth tier school, and no significant difference in tuition (see point 1) (and maybe not even then, but that's an interesting econometric question), wouldn't choose Stanford or UCLA?
My "dean speech" (that nobody has asked me to give) is that this is an intractable polarity that the profession is simply going to have to manage by way of leadership that provokes empathetic perspective at both poles. The poles aren't coherent, and there is no rule of nature that says they have to exist, much less coexist. But they can, just like lots of polarities, continue to coexist. Faculties simply have to make concessions to the concerns and needs of students or their gravy train is going to disappear; students and alumni are going to have to acknowledge the driving forces of academic prestige and advancement, or they are going to lose that patina (and brand, and earning power) that comes with a law degree other than from ITT Tech, DeVry (which owns a med school on the island of Dominica, "a lush, classically Caribbean environment"), or the University of Phoenix, all of which would be perfectly capable of offering what BL1Y wants (InfiLaw already does).
Friday, June 18, 2010
The Louisiana Supreme Court ordered that a Orleans Parish juvenile court judge be disqualified from any judicial function during the pendancy of proceedings in connection with the Judiciary commission. the judge must stay "completely out" of the court and "any and all of its facilities (including the warehouse intended to be used by youth to learn auto mechanic skills) on a 24-hour basis."
The court also entered a partial sealing order.
MSNBC reports that the judge has resigned. (Mike Frisch)
The West Virginia Supreme Court imposed a three-year suspension and restitution of an attorney who had submitted false payment claims to the public defender office. The court rejected the claim that the sanction should be mitigated by mental health issues:
In a lawyer disciplinary proceeding, a mental disability is considered mitigating when: (1) there is medical evidence that the attorney is affected by a mental disability; (2) the mental disability caused the misconduct; (3) the attorney's recovery from the mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely.
Applications of these factors to the evidence below, compels us to conclude that [the attorney's] mental disability does not qualify as a mitigating factor. The medical evidence indicated that during the time period in question [he] suffered from significant depression which could be the etiology of his memory problems. While this evidence satisfies the first prong of the Dues test, [he] has failed to satisfy the remaining three prongs. With regard to the second prong, the blanket assertions of [the attorney] and his physician that depression caused or may have caused [his] memory problems is insufficient to prove that his memory problems caused his misconduct. In addition, [he] adduced no evidence whatsoever that he has experienced a meaningful recovery from his mental disability which makes it unlikely that his misconduct will recur. In fact, he has expressed the opposite. In his opening statement to the Hearing Panel Subcommittee at the May 7, 2009, evidentiary hearing, [he] indicated:
But still I think the manner in which I have responded to ODC and this panel ought to be some indication of my level of impairment. I can't do the simple things that is required of a lawyer to do. I can't do the simple things.
. . . . I have - - I have let my law practice close itself. I have only one active client, who is a misdemeanor case in Berkeley County.
So this is not about - - so the outcome of this hearing is not about whether or not I'm going to be practicing law in the future. I can't practice law in the future. I know that now. It's in the transcript.
Because [he] has failed to show that his mental disability caused his misconduct, and that he has experienced a recovery from his mental disability as demonstrated by a meaningful and sustained period of successful rehabilitation that indicates that his misconduct is unlikely to recur, this Court concludes that [his] mental disability cannot be considered a mitigating factor in determining the appropriate sanction against him.
Justice Ketchum dissented, and reserved the right to file a dissenting opinion. (Mike Frisch)
In a rather unusual letter, the Administrator and Counsel to the New York State Commission on Judicial conduct commented on behalf of the Commission on an Advisory Opinion of the Advisory Committee on Judicial Ethics. The letter states that
...the opinion's gratuitous criticism of the Commission was unwarrented, particularly where, as here, it was offered without the benefit of the facts and circumstances that prompted the Commission's inquiry of the judge in the first place. That the opinion reached out to attack the Commission for its procedures and retroactively criticized the questions posed to the judge is all the more suprising given the limited, prospective issue as to which the inquiring judge had sought the Advisory Committee's advice, and the fact that the judge had already answered the question posed and does not appear to have raised any question about their propriety.
The underlying case involved a custody matter in which the judge was accused of lack of courtesy and patience.
The letter concludes:
...we prefer that future discussions about the Commission's process and procedures occur in a more appropriate forum or fashion, rather than an individual opinion, particularly where the Advisory Committee may be limited in its knowledge of all the relevant circumstances.
The New York Appellate Division for the First Judicial Department affirmed the dismissal of claims brought by a former partner against his law firm:
The Partner alleged in the first action, inter alia, that his former employer, KBTF, defamed him personally, as well as his business reputation, by KBTF's issuance of a press release stating that he had been "terminated for cause," ". . . because of extremely inappropriate personal conduct," and through a subsequent statement by a KBTF partner that the termination had occurred after a "thorough" and "weeklong" investigation by KBTF. The press release and statement were made after a certain publication reported that the Partner had joined his new firm "after jumping ship" from KBTF, taking with him certain important clients, and that the new firm had "nab[bed]" him. When the trade publication did not issue what KBTF regarded as a sufficient correction, KBTF published the allegedly defamatory statements quoted above.
The IAS court correctly dismissed the Partner's defamation claims upon finding that the Partner's pleading, and a December 2007 e-mail which he had sent to a senior partner at KBTF, effectively admitted that he was terminated for cause due to his inappropriate personal conduct while at KBTF. A review of the pleadings and documentary evidence submitted supports the motion court's conclusion that KBTF's alleged defamatory remarks were substantially true...KBTF's use of the term "extreme" to qualify the Partner's inappropriate conduct, when viewed in the context of KBTF's warranted response to the new firm's initial announcement, would be viewed by a reasonable reader as constituting opinion, and thus would be privileged.
The Partner failed to state a claim for tortious interference with business relations, inasmuch as his pleadings asserted that KBTF's alleged defamatory statements were made to gain, inter alia, economic advantage, and were not published solely out of malice; nor, for the reasons stated above, can the Partner prevail on this claim on the theory that KBTF employed "wrongful means" in making the challenged statements...The Partner's injurious falsehood claim was insufficiently pleaded absent viable allegations that false and disparaging statements were made which harmed the Partner's property or business reputation...The Partner's equitable claim alleging KBTF was unjustly enriched because he performed "transition" services for KBTF without pay was properly dismissed inasmuch as the parties' partnership agreement covered compensation issues for partners both in good standing with the firm, and those like the plaintiff, who had been expelled.
The court properly dismissed the causes of action in KBTF's complaint given the vague, boilerplate allegations of damages which were insufficient to sustain the causes of action asserted therein(citations omitted).
A Louisiana Hearing Committee has recommended the reinstatement of an attorney suspended in January 2005:
The Committee believes Petitioner shows sincere remorse in his previous misdeeds. Though there was initially some language problem at the hearing, the Committee is convinced that once Petitioner was told what the word "remorse" meant that he did show proper remorse for his prior actions and indicated that they would not occur again. Petitioner now realizes that his attempt to file suit and the Disciplinary Board and Charles Plattsmeier was a grave misdeed. He has testified that the Petition was dismissed procedurally and was never re-filed, nor would something like that be re-filed by him in the future.
The committee proposes that petitioner be required to practice under the supervision of another lawyer for at least a year. (Mike Frisch)
Wednesday, June 16, 2010
[Posted by Bill Henderson]
Pending budgetary approval, the American Bar Foundation (ABF) invites applications to join its Residential Research Faculty as Research Professors beginning in the 2011-12 academic year.
We seek candidates with distinguished records of scholarship in law and the social sciences or demonstrated potential for such accomplishments. Research area, discipline, methodology, and rank are open. The ABF is strongly committed to diversity in hiring.
The ABF is an independent, scholarly research institute committed to social science research on law, legal institutions, and legal processes. Its faculty consists of leading scholars in the fields of law, sociology, psychology, political science, economics, history, and anthropology. Research Professors may be appointed either full- or part-time. When Research Professors are jointly appointed with law or social science faculties of Chicago-area institutions, the ABF works closely with these institutions to coordinate on matters such as salary, benefits, and other work arrangements.
The Appointments Committee will begin reviewing applications on August 15, 2010. We ask that applicants submit a letter of application, a curriculum vitae, a brief (no more than 2-page) description of current research and plans for future research, and a list of three references.
Application letters should be addressed to Robert Nelson, Director, and sent in electronic form to Roz Caldwell, Senior Administrative Assistant, at email@example.com with the subject line “Faculty Search.” Queries about the application process can be directed to Ms. Caldwell at (312)988-6531.
Tuesday, June 15, 2010
An Assistant District Attorney for Orleans Parish, Louisiana is the subject of a proposed reprimand by a disciplinary hearing committee. The matter arose out of a check bounced off a lifelong friend of the ADA. She agreed to help the friend try to resolve the dispute over the $375 check.
The attorney visited the premises of the checkwriter and returned the rubber check. The checkwriter advised the attorney that she would honor the obligation and gave her $200. Then, the attorney said:
Girl, don't you know that you shouldn't be writing bad checks...Well you know, I'm an assistant district attorney and you can't be doing those kind of things.
The attorney stipulated that the statements violated Louisiana Rule 8.4(a), (d), and (g). The State Attorney General's office declined to file criminal charges in the matter. (Mike Frisch)
An Arizona hearing officer has recommended a six-month suspension retroactive to the date the attorney was place on voluntary inactive status and one year of probation for misconduct that took place in somewhat unique circumstances. As we often have seen, a strong personal connection between an attorney and client can result in what can only be characterized as questionable judgment.
The attorney represented the client in a divorce. He learned that the client had and was using illegal drugs. They began a sexual relationship and, during that time, the attorney began to act "as a de facto father to [the client's] infant daughter. " The divorce litigation ended without the attorney moving to withdraw, although he had intended to do so but mistakenly not filed the motion.
Several years later, while still counsel of record for the client, the attorney filed a petition for custody of the daughter under the same court number as the divorce action. He disclosed confidential information about the client's drug use out of concern for the daughter's welfare. Eventually, he withdrew as counsel for the client and was awarded temporary custody of the daughter.
The client was arrested and charged with transporting illegal drugs. The daughter was in the car at the time of the arrest. Custody was returned to the attorney. Attorney and (now former) client now share legal custody of the daughter. (Mike Frisch)
Monday, June 14, 2010
The West Virginia Supreme Court rejected proposed lesser discipline and annulled the law license of an attorney for misconduct in a prison visit. The court found that the attorney had a prior sexual relationship with an inmate. Then:
On October 11, 2005, the respondent called PCC at about 1:20 p.m. to schedule an attorney-inmate visit with [the inmate]. The respondent testified that he was given permission for this visit and then traveled from Fairmont to Grafton. While at the administration building, the respondent informed the prison authorities that he represented [her] and provided his West Virginia State Bar membership card and state driver's license as proof of his identity. He also listed himself as “attorney” on the sign-in sheet at the facility. The respondent was then escorted to a multi-purpose room where [she] was brought to him within 10 minutes.
The respondent and [the inmate] were alone in the room. The respondent testified before the Panel that he and [the inmate] discussed the disposition and location of her personal belongings and automobile since her incarceration. He stated that this was a very short conversation. The respondent testified that as he started to leave, [she] asked him to wait and stated how appreciative she was of his efforts on her behalf. According to the respondent then testified that Ms. [she] then initiated sexual contact with him by inquiring if he would like to receive oral sex. She then reached for the zipper fastening his trousers. The respondent testified that the zipper stuck and [she] was unable to continue unzipping his pants. The respondent then unzipped his pants for [her]. The parties stipulated that as [she] was engaged in an act of oral sex upon the respondent, they were interrupted by a corrections officer who had been monitoring the visitation. [She] was removed from the visitation area. The parties agree that as the respondent was attempting to leave PCC, he was asked by the warden of the facility to remain to speak to law enforcement.
The court on sanction:
[The attorney's] conduct as an attorney in misrepresenting himself as counsel for [the inmate] in order to gain access to her for improper reasons was more than mere deceit. His conduct fell so far below what should reasonably be expected of attorneys as to be shocking to this Court. His actions fueled a wave of questions by the public, the incarcerated, jail authorities and fellow members of the legal profession. This Court is faced with having to reassure all affected parties that the likelihood of this conduct, and similar conduct by other members of the bar, is going to be met with harsh consequences. Furthermore, this Court must assist in protecting the vulnerable, especially those in State custody, from the lustful advances of attorneys as well as maintaining the good relationship between the criminal bar and the state's jail and prison authorities. The recommended disposition of the Board does not accomplish these goals. Accepting any sanction other than disbarment does not send a clear and resounding message to the bar, the public and other interested parties, including jail and prison authorities who must work with attorneys on a daily basis.
The New Jersey Appellate Division agreed with a Law Division judge's conclusion that a plaintiff in a legal malpractice action is obligated to serve a timely affidavit of merit on the defendant law firms. The court nonetheless vacated the dismissal of the action on equitable grounds
particularly because the case law in our State was unsettled to date as to whether an affidavit of merit is required in such circumstances, and the federal decisions on the subject attempting to apply New Jersey law have taken arguably different approaches.
Two law firms were sued for the alleged lapses of a now-deceased attorney who had worked for both firms. The complaint alleges that the attorney failed to assure that renewal fees necessary to maintain the client's patent were paid, resulting in the expiration of the patent and the client's inability to get the patent reinstated. The client manufactures and sells athletic apparel and equipment primarily for lacrosse. (Mike Frisch)
An Arizona hearing officer has recommended an informal reprimand of a New York attorney in connection with matters before the United States immigration court in Arizona. The hearing officer rejected the attorney's jurisictional challenge and would have favored probation but for the fact that her non-admitted status precludes that option. The hearing officer found that the violations were a product of her office management shortcomings:
[Respondent] should take from this proceeding the lesson that she is responsible for knowing what is going on in her office. Her husband is not a lawyer and he should not be ger enforcer by trying to strong arm clients who are entitled to refunds into signing covenants not to sue (or not to bring bar charges)...Observing Respondent at the hearing (where she was crying when she realized that the evidence strongly suggests that her husband lied to her about [a] meeting), the Hearing Officer concluded that she has been significantly impacted by this process. A censure for her first violations would not be necessary.
The Maine Supreme Judicial Court has imposed its sanction in a matter that we previously reported involving an attorney who "failed to provide reasonable skill and care or apply his best judgment when he propositioned the client to engage in sexual relations during a day in which he was providing legal representation and counsel to her, and...wrongfully asserted a lien on her file by requiring her to sign an agreement to pay the fees that she owed him as a condition of receiving a copy of her file."
The Bar Board of Overseers had proposed a six-month suspension with all but sixty days suspended with conditions that included cooperation with monitoring by the Bar's attorney assistance program and a written apology to the client. The attorney sought a reprimand.
The court found the violations to be serious: "By his more recent actions, [he] has called into question whether he is completely rehabiliated [from his pre-admission conviction] and whether he has the capacity to maintain the level of professionalism required of members of the Bar. For this reason, the Court concludes that the sanction in this case must be sufficiently severe to assure [he] is deterred from further unprofessional conduct." The court thus imposed an eighteen-month suspension with all but ninety days stayed. He must apologize in writing to the client and cooperate with the Bar's program.
While the attorney was admitted in 2004 and has no prior discipline, he was admitted despite a felony conviction for conspiracy to possess marijuana with intent to distribute. (Mike Frisch)