Friday, July 16, 2010

Mercer Announces New Moot Court Competition in Legal Ethics

Announcing the First Annual Mercer Law School Moot Court Competition in Legal Ethics & Professionalism
Mercer University Walter F. George School of Law, home of the Mercer Center for Legal Ethics and Professionalism, will host the only national moot court competition focusing on legal ethics and professionalism.  The competition will take place November 12-13, 2010 at Mercer Law School in Macon, Georgia.
The competition will consist of the submission of an appellate brief, as well as several rounds of oral argument.  Rounds will begin on Friday November 12, with a reception Friday night at the Georgia Music Hall of Fame.  The competition will conclude with a final round late Saturday afternoon.
The competition rules will be posted by September 1, 2010.  The problem will be released on September 15, 2010, and briefs are due (by e-mail and postmark) by midnight on October 15, 2010. 
Early registration deadline is August 23, 2010.  Early registration is $300 for one team, or two teams may register for $500.  After August 23, registration will be $350 for one team and $600 for two teams.

[Alan Childress, from the AALS Section on PR listserv]

July 16, 2010 in Ethics, Games, Teaching & Curriculum | Permalink | Comments (0) | TrackBack (0)

Suspension For Sex With Client

The Iowa Supreme Court has suspended an attorney for 30 days for violation of the prohibition of sex with a client. The fact that the attorney represented the client in a marriage dissolution matter was treated as an aggravating factor. The attorney had thereafter represented the client in criminal matters. While the attorney withdrew from the dissolution case, he continued to "inject" himself into the proceedings. The court found that the preexisting sexual relationship at the time that the attorney undertook the criminal representation did not "legitimize" the attorney-client relationship.

As to sanction:

Clearly, [the attorney] needs a better understanding of his ethical obligations, the vulnerability of clients under the stress of a dissolution or facing criminal charges, and the impact a sexual  relationship between him and his client has on his client and his own ability to professionally represent that client. Without this knowledge, [he] poses a risk to the public. We also note, however, that [he] has contributed a significant amount of time to the representation of clients on a pro bono basis. In addition, members of the bar and of the judiciary testified at the hearing that, other than the matter that brought [him] to the attention of the disciplinary authorities, he has practiced in an ethical fashion. Taking all of the pertinent factors into consideration, we concur in the commission’s recommendation that [his] license to practice law in this state be suspended for thirty days.

The court rejected the contention that a violation of the "sex-with-client" rule establishes a per se violation of the "conduct prejudicial to the administration of justice" prohibition. (Mike Frisch)

July 16, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Not As A Solo

The Delaware Supreme Court has held that an attorney suspended for two years may start the reinstatement process after 18 months but must serve the full two-year period before reinstatement can be granted. The misconduct had occurred after the attorney had eye surgery and suffered the death of a close relative. The court states that any application for reinstatement would be "strengthened" if the attorney does not intend to practice as a solo if reinstated. (Mike Frisch)

July 16, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, July 15, 2010

Lawyer Suspended In Medical Marijuana Clinic Dispute

An attorney who had advised his client to take over of a medical marijuana clinic where the client had been employed was suspended for 90 days by the Oregon Supreme Court. Some background on the matter, which involved a dispute between the attorney's client and her employer, a corporation that operated the Oregon clinic:

The accused met Leveque [the client] in 2004 when he became a patient at the clinic while Leveque was employed there.  In 2005, Leveque asked the accused for legal advice about difficulties that she was having with her employer and Paul Stanford, who ran the clinic and several similar clinics in other states.  The accused agreed to represent Leveque.  Although the parties disagree about Stanford's exact position with the corporation in 2005, it is undisputed that he was the sole incorporator of the corporation when it was established in 1999, that an October 2005 printout from the Secretary of State's online business names registry identified him as president, and that, at the time of the events at issue here, employees of the corporation (including Leveque) considered him to be in charge of the corporation's business.  

On October 7, 2005, as noted above, the clinic manager asked Leveque to go home.  She attempted to file an unemployment claim, although she told the accused that she was uncertain whether she had been fired.  Over the next month, Leveque did not return to work at the clinic; however, she was apparently attempting to get back (or retain) her job and still had a key to the clinic. 

Meanwhile, the accused contacted Ann Witte, the corporation's attorney, to attempt to resolve Leveque's employment dispute.  Leveque also had a number of concerns about the way the corporation was being run by Stanford -- including whether revenues were being appropriately accounted for, whether corporate assets were improperly being used to advocate for marijuana legalization, and other corporate governance issues -- and the accused advised Leveque in connection with those issues.  As part of his legal work for Leveque, the accused researched the corporation's status. 

The attorney conducted some research on the corporation. He received some inaccurate information about the corporation's legal status but failed to check information available on a state web page. He advised the client to either contact the Attorney General (which the client feared would shut down the clinic) or to take over the clinic premises. The client chose the latter course:

According to the Bar, the accused then advised Leveque that another option would be to go to the clinic, use her key to enter before business hours, and physically take over.  The accused claims, however, that Leveque decided on her own that she would use her key to open the office and attempt to take over management of the clinic.  He then advised her that she had "equal rights with Mr. Stanford" to run the clinic and that he could defend her from criminal or civil actions that might arise out of an attempted takeover. 

On November 14, 2005...Leveque and some other individuals (including a nurse, a doctor, a computer technician, and a locksmith) arrived at the clinic before it opened and before any employees were there.  Leveque used her key to let them in.  The locksmith began changing the locks, and others attempted to begin working on the clinic's computers.  The accused also came to the clinic that morning, although he states that he came separately from Leveque.  The first employee of the clinic to arrive was Kim Murphy, whose job was to open the clinic for business.  Murphy testified that Leveque, her associates, and the accused were inside the clinic when she arrived at about 7:45 a.m.  When Murphy asked Leveque what was going on, Leveque told her, "We're taking over the clinic."  Other clinic employees who arrived testified that Leveque made similar statements to them.  At one point, Leveque began taking patient schedules and placing them in her bag. 

At least two clinic employees, office manager Janus Brown and clinic administrator Scott Carr, told Leveque and the accused to leave.  They refused.  The accused maintains that he believed at that time that the lease was in the corporation's name and that, because he believed that Stanford had no legal authority to run the corporation, neither Stanford nor those working for him had any right to direct them to leave the premises.

At some point, a clinic employee called the police.  According to police records, the initial call came at 9:32 a.m., and the first police officers arrived at the scene at 9:37 a.m.  A clinic employee also phoned Stanford, who was in Hawaii; Stanford phoned Witte.  Witte arrived at the clinic at about the same time as the police.

According to the Bar, the accused told clinic employees and the police that he and Leveque had a court order or some written authorization from the Attorney General to be there.  According to the accused, he said only that he had a complaint letter that he had drafted to send to the Attorney General.  He claims that he showed the complaint letter to the police and Witte and told them that he was going to go to the Attorney General the following day if Leveque's issues could not be resolved.

 The police attempted to resolve the dispute.  Sergeant Kim Keist understood that Leveque believed that the clinic was not being properly operated and that there was a disagreement over who had the right to run the clinic.  It was her view at the time, which she explained to Leveque and the accused, that this was a civil dispute that would have to be resolved in court and that Leveque -- because she had "walked away from [the clinic]" -- was not authorized to enter the clinic and take it over.  In the meantime, someone had contacted the landlord, who faxed the lease agreement to the clinic.  The lease showed the corporation as the lessee and Stanford as the "guarantor."  After the accused saw the lease, he advised Leveque and her associates to leave, and they all left the premises.  The police left the scene at 10:27 a.m.

The court sustained a Rule 3.1 violation:

The accused claims that, to the extent that he is incorrect in his legal conclusions, he believed, when advising Leveque and acting on her behalf, that those conclusions were correct.  We find, however, that the accused knew that the positions he took in the course of representing Leveque were frivolous.  First, the accused's claim is undermined both by his advice to Leveque that her only redress for any concerns that she had about the corporation was to seek the assistance of the Attorney General and by his letter to Witte, in which he made a similar statement.  Second...on the morning of November 14, the accused lied to various individuals at the clinic, telling them that he had some written authorization permitting Leveque and her associates to take over the clinic.  That supports the Bar's position that the accused knew that, without some such authorization, he and Leveque had no legal right -- self-help or otherwise -- to take over the clinic.  Finally, the accused has practiced law in Oregon for more than 40 years, has substantial experience in securities and corporate litigation, and has some experience working with nonprofit corporations.  He is a sophisticated lawyer with extensive experience.  We find that the accused knew that his advice to his client -- that she had some legal basis for her attempt to take control of the clinic's operations -- was frivolous.

The matter was complicated by the death of the client and her consequent inability to testify in the bar proceeding. Nonetheless, the court accepted findings of fact favorable to the bar's contentions as set forth above.

The court found that a suspension was appropriate for misconduct that involved taking a frivolous legal position, false statements to third parties, dishonesty, and criminal trespass.

Here's a link to a December 2007 story about the clinic owner ("King Bong") from the Willamette Week. (Mike Frisch)

July 15, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Power Of Attorney

The New York Appellate Division for the Third Judicial Department suspended an attorney for five years for misconduct in connection with the handling of the affairs of his aunt. He had her power of attorney and also was her attorney. There was a "protracted and contentious Surrogate's Court proceeding that continued for over seven years." The attorney, who was a beneficiary of the aunt's estate, agreed to reimburse the estate for unaccounted money and property totalling slightly under $2,400. The misconduct took place between 1992 and 1995.

The attorney had a long career in public service, no prior disciplinary record, had expressed remorse and cited several "serious personal problems" at the time of the misconduct. Nonetheless, the court concluded that he had admitted to "very serious professional misconduct." (Mike Frisch)

July 15, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Judging A Judge

From the web page of the Ohio Supreme Court:

The Supreme Court of Ohio today suspended the law license of [a] Van Wert Municipal Court Judge...for 12 months, with the final six months of that term stayed on conditions, for multiple violations of the Code of Judicial Conduct and Code of Professional Responsibility.

The Court adopted findings by the Board of Commissioners on Grievances & Discipline that between 2003 and 2007 Campbell engaged in professional misconduct that included allegedly improper investigation of a criminal matter then pending in his court; failure to act in a patient, dignified, and courteous manner; use of his position as a judge to pressure persons into action; improper handling of proceedings to appoint counsel for indigent defendants; failure to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary; and failure to faithfully follow the law. 

In imposing the board-recommended sanction of a 12-month suspension with six months stayed, the Court cited incidents in which [the judge] used his judicial authority to improperly question witnesses in a police investigation, pressured the city law director’s secretary to give him criminal investigation files to which he was not entitled, denied appointed counsel to qualified indigent defendants, and compelled the mayor of Van Wert to appear in his courtroom and be questioned about an administrative matter not before the court.

The court’s 6-0 per curiam decision was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp.

Chief Justice Eric Brown did not participate in the court’s deliberations or decision in this case.

The opinion is linked here. (Mike Frisch)

July 15, 2010 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 14, 2010

Censure For Driving 117 MPH While Intoxicated

The New York Appellate Division for the Second Judicial Department concluded that a public  censure was the appropriate sanction for misconduct described in the court's opinion:

...the respondent entered a plea of the crimes of operating a motor vehicle while under the influence of alcohol in violation of Vehicle and Traffic Law § 1192(2), an unclassified misdemeanor, and reckless endangerment in the second degree in violation of Penal Law § 120.20, a class A misdemeanor, in full satisfaction of the charges against him. The respondent admitted that on November 24, 2007, at approximately 4:40 A.M., he was driving eastbound on the Long Island Expressway, in the vicinity of exit 41, at a speed of 117 miles per hour while intoxicated and with passengers in the vehicle.

On September 5, 2008, the respondent was sentenced for the above crimes to a period of incarceration of four consecutive weekends, a period of three years of probation, and 80 hours of community service, his driver's license was suspended for a period of six months, and certain fees and fines were imposed.

Charge two alleges that the respondent engaged in conduct that adversely reflects on his fitness as a lawyer in violation of Code of Professional Responsibility DR 1-102(a)(7) (22 NYCRR 1200.3[a][7]), based on his conviction of a crime as set forth in charge one.

Based on the evidence adduced, including the respondent's admissions, the Special Referee properly sustained both charges, and the Grievance Committee's motion to confirm the Special Referee's report is granted.

In determining an appropriate measure of discipline to impose, the Grievance Committee notes that the respondent has no prior disciplinary history. In view of the mitigation advanced and the fact that the respondent's misconduct, while reckless and not to be condoned, did not involve the practice of law, we conclude that a public censure is the appropriate discipline to impose in this case.

The attorney was admitted in 2005. (Mike Frisch)

July 14, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

"The Best Traditions of the Bar" (and Academia)

Posted by Jeff Lipshaw

Eejhead_bw_100Over at PrawfsBlawg, Eric Johnson (North Dakota, left) asked readers to comment on the Harvard Law Review's practice of not attributing student notes to the authors.  Most commenters recited the justification I recall hearing years ago about the the level of editorial involvement making it not truly the author's own work. 

I posted a comment over there that I thought was worth bringing here.  I should be clear, while I'm analytically skeptical about social norms and customs, it doesn't mean that I don't like them.  Rumpole (the fictional junior barrister, "Old Bailey" hack, alter ego of the late John Mortimer) used to mock "the best traditions of the Bar," such as the most important thing in one's pupillage at the Inns being not so much the training, but the socialization at the dinners one is required to attend.  It isn't a worthwhile trip to London for me if I don't have a chance to wander through the Temples. And I would have gladly worn a barrister's wig and starched collar in another life.

Nevertheless, as it relates to Eric's question (or, more properly, the responses), I always try to take with a grain of salt the post hoc rationalist justifications for a social norm or practice, as though the norm or practice were actually begun with a process of reasoned analysis. I'm particularly suspicious when the rationalization relates to academic customs. Regalia, for example, was once functional - you could keep warm in it, hide your lunch, and most importantly your spirits. Many of the inexplicable aspects of the NCAA's or the Olympic's regulation of amateur athletics only make sense if you understand their genesis not as rules but as social custom in a particular time and place (the same one that created the notion of "gentlemen's Cs".)

I didn't go to Harvard, but a far more "nouveau" institution, one founded by a mere robber baron striver after the Victorian era had passed. From a different perspective, the "collective exercise of humility" (one proffered explanation of the HLR "no-author" policy) may have been instead an artifact of the Victorian "code" about striving and professionalism. I've just finished David McCullough's biography/social history of the young Theodore Roosevelt, his family, and their era. The chapter on Roosevelt's time at Harvard may be worth the price of admission. Here's a quote from a Roosevelt contemporary in the Class of 1880, and think about whether it, and not some more noble justification, is the source of both the custom and its durability at Harvard:
If you asked me to define in one word the 'temper' of the Harvard I knew, I should say it was patrician, strange as that word may sound to American ears. . . .

This code, unwritten yet all pervading and all powerful, is difficult to define. Over and above the copybook virtues, it insisted upon a composure of manner, a self-suppression and a sense of noblesse oblige that were in happy contrast with the blatant self-assertions, the unbridled enthusiasms and misconceived doctrines of equality that were characteristic of the country in general. It gave its approval to those who understood that modesty was compatible with manliness, who knew how to combine self-respect with respect for authority and for the opinions of others, and who were firmly convinced that it was truer sport to lose the game by playing fair than to win it by trickery.

I think I am not exaggerating this influence in the college life. . . .
Plus ça change, plus c'est la même chose!

July 14, 2010 | Permalink | Comments (0) | TrackBack (0)

Holmes' The Common Law in Annotated form; summer reading before law school begins

Posted by Alan Childress

A brief follow-up to my post last week on The Common Law, in which I trashed current online and digital versions of the book for being poorly scanned and never proofread, incomplete and unusable. So I published a cheap one that is in fact the words Holmes wrote, mainly for Amazon Kindle and its free apps for iPad, PCs, Mac, BB, and smart phones. 

Now, I also published to Kindle (and also ePub for Nook and Apple, a Sony one, and active PDF HolmesCover12 and simple rtf formats for just computers without apps, all at Smashwords) a much-expanded version, annotated, which includes some 200 of my notes inserted to explain what Holmes meant and underlying legal terms he uses. There is a need for noted-and-demystified versions of many old but still-great books in law, philosophy, and social sciences, and so I welcome manuscript ideas a reader may have. For example, I know Jeff could take some great work by Kant and insert his decoding notes into it, and Patrick S. O'Donnell could do the same for other works of classic philosophy and religion (yes, P, we'd do it in paperback too and kill trees). Mainly this involved my sharing with a reader what I already knew but would be foreign to college students and 1Ls. In the case of Holmes, sometimes that was just translating his words from older dialect that I recognized from growing up with old Southern people!  You see annotated Shakespeare and Cervantes, so I welcome proposals for the same in law, etc.

This is also a follow-up to the post we had a couple years back , The Summer Before Law School?, on good books to read the summer between college and the start of 1L. Lots of school websites and others have such lists, including a really extensive and insightful one by Tulane's Susan Krinsky to incoming law students, which includes fun fiction: Download ReadingList2008.

To the extent such lists do not include The Common Law, even though it's one of the best law books ever and Holmes surveys the field of basic 1L classes like crim, torts, and contracts (still great on consideration, on versions of crim and tortious intent, and on the reasonable person test), I think it is because the work is considered a tough read. It uses dated language plus some Latin and even Greek, while assuming a familiarity with legal concepts that 1L readers would not yet have (e.g., what's "an action in case"? a law-bound student would wonder).  I hope that I have decoded it and accessibilized it for that use, and for others in college and law school classes, as the book is actually very helpful and understandable to a wide audience if there are just some little insertions and pointers along the way.  The annotated edition is cheap, too, and includes simple PDF and online versions. InsideTheState_coverSM

UPDATE: Since this site is linking all the front matter and into chapter one as a free sample, have at it. It includes my foreword and the bio of Holmes, his extensive plan for the book, and three of my annotations in ch. 1 so you can see what they do for it. 

Also now out at Smashwords are three great books I have brought back from paperback purgatory to go ebook:  Jerold Auerbach, Jacob's Voices: Reflections of a Wandering American Jew; Joel Handler, Law and the Search for Community; Kitty Calavita, Inside the State: The Bracero Program, Immigration and the INS.  These will be on Amazon by next week. UPDATE 2: They are now on Amazon and links are Auerbach . . . Calavita . . . HandlerSee also Lisa Webley and her Dissertation on legal profession in UK in divorce cases, at Amazon and Smashy.

July 14, 2010 in Books, Childress, Comparative Professions, Teaching & Curriculum | Permalink | Comments (0) | TrackBack (0)

Ethical Tennis Anyone?

The Florida Judicial Ethics Advisory Committee opines that a judge may serve as honorary chairman of a bench-bar tennis tournament:

The inquiring judge has been asked to lend the judge’s name as an “Honorary Chairman” for a Bench-Bar tennis tournament which the local voluntary bar association is organizing to promote collegiality between judges and lawyers.  The event is not raising any funds for the bar association or any civil or charitable activity.  The bar association is defraying the event’s costs through donations which the bar association is soliciting from lawyer and non-lawyer sponsors.  The non-lawyer sponsors are expected to be vendors which cater to lawyers.  Such vendors may include, but are not limited to, court reporters, copy services, mediation companies, trial consultants, and banks which service lawyer trust accounts. The bar association will solicit all donations, collect all monies, and make all payments.  The event will occur at a city-owned tennis center.  The costs are the court rental, equipment, tennis pros, food, drink, signs, and prizes.  There are expected to be several dozen players, including eight to ten judges.

The conclusion:

The inquiring judge’s participation as “Honorary Chairman” of the Bench-Bar tennis tournament would comply with Canon 4D(2)(b).  A local bar association is an “organization devoted to the improvement of the law, the legal system, the judicial branch, [and] the administration of justice.” The event serves those law-related purposes by promoting collegiality between judges and lawyers.  The event does not serve a fund-raising purpose for the bar association or any civic or charitable activity.  The judge’s participation would be limited to appearing at, receiving recognition at, having the judge’s title used in conjunction with, and being the guest of honor at, the event.  The judge is not going to solicit any donations, collect any monies, or make any payments.

Even if we perceived the donations as converting the event into serving a fund-raising purpose, we still would conclude that the inquiring judge’s participation as “Honorary Chairman” of the event complies with Canon 4D(2)(b) and its commentary.  The event would concern the legal system and the administration of justice by promoting collegiality between judges and lawyers. The funds raised would be used for a law-related purpose by defraying the costs of the event, which itself serves a law-related purpose.  The judge would not be engaging in the direct solicitation of funds.  The bar association, as an organization, does not engage in advocacy on behalf of parties who may appear before the judge, and so the judge’s participation would not cast doubt on the judge’s capacity to act impartially as a judge.

If we were to opine otherwise on the instant issue, then it would call into question a number of voluntary bar association events at which individual judges speak, receive awards or other recognition, are featured, or are the guests of honor.  Such events regularly rely on lawyer and nonlawyer sponsors to defray the events’ costs.

(Mike Frisch)

July 14, 2010 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Ah, Wilderness!

The web page of the Disciplinary Board of the Pennsylvania Supreme Court reports a recent suspension as a result of a criminal conviction. This post from describes the charges, which involved defrauding a church and a charity:

Today's indictment alleges [the attorney] failed to report $5.3 million in taxable income for years 2002, 2004 and 2005.

He is also charged with making a fraudulent $500,000 donation in 2004 to the Lehigh Valley Community Foundation, a nonprofit organization in Allentown.

In December 2005, [the attorney] created "The Urban Wilderness Foundation," became its president and had sole signature authority. On Dec. 6, 2006, [he] asked the Lehigh Valley Community Foundation to transfer the $500,000 donation he gave them to his Urban Wilderness Foundation, even though he had already taken a tax deduction for this contribution.

When LVCF decided that Urban Wilderness did not qualify as a charity to receive the funds, [he] allegedly recommended the money be sent as a charitable grant to his church, Dubbs Memorial United Church of Christ of Allentown, which was a tax-exempt qualified organization.

The foundation made $433,569 in grants to the church, then [he] then told the church to return $383,569 to him through "The Urban Wilderness Foundation." Officials allege the funds were not used for charitable purposes, but helped pay for funeral and catering expenses for his brother's memorial service.

If convicted of all charges, [the attorney] faces up to 204 years in prison and a $4.5 million fine.

 (Mike Frisch)

July 14, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 13, 2010

Unwanted, Uninvited, And Unwelcome

A hearing on sanctions is scheduled for July 20 before the Pennsylvania Judicial Conduct Board in a matter involving findings that an Erie County Magisterial District Judge had made "repeated and persistent telephone calls to five women which calls were unwanted, unsought, and unwelcome." The judge also made uninvited and unwelcome visits to the homes of some of the women.

The victims of the judge's harassment included a judicial law clerk for another judge who was invited to be his "clerk for a day," an assistant district attorney, an attorney in private practice, and a defendant charged with underage drinking.

The findings of the Judicial Conduct Board are attached to the board's order.

True Crime Blog reports on the case, labeling the judge as the Inept Romeo of the Pennsylvania Courts. (Mike Frisch)

July 13, 2010 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Monday, July 12, 2010

If You Liked the Idea of Post-Tenure Review, You'll Love 360° Reviews for Federal Judges: A Proposal

Posted by Jeff Lipshaw

David Kessler, presently a post-graduate research fellow at the Harvard Law School, let us know about his article on "professional development" for Article III judges he recently placed in the Rutgers Law Review"The More You Know: How 360-Degree Feedback Could Help Federal District Judges:"  Here's the abstract:

No formal program now exists to provide feedback to Federal district judges for purposes of their professional development. This article argues that creating such a program is both possible and beneficial because even the most capable judges could perform even more effectively if given more information about how they are performing. This article proposes the adoption of a well-known mechanism for gathering feedback in the business world, called “360-degree” feedback. In a 360-degree system, a person receives feedback from those “below” him, such as the people he manages and his customers, from his peers, and from his own managers or supervisors. Under a 360-degree feedback for the judiciary, district judges would receive feedback from the attorneys and litigants who appear before them, as well as court personnel, from other district judges, and from appellate judges. The purpose of such feedback would be performance development (helping judges become more effective) rather than performance evaluation (ranking and grading judges). The feedback, accordingly, would not be made public. In detailing how the 360-degree system would work, this article examines the current sources of feedback for district judges as well as introduces, for the first time in the judicial context, the rich academic and professional literature studying professional development in the management and business world.
Having been a senior officer in a corporation, and nevertheless subject to these kinds of reviews, I can't begin to tell you (a) what a good idea it is (b) generally, in the view of those with tenure (academic or constitutional life version), for somebody else.

July 12, 2010 | Permalink | Comments (1) | TrackBack (0)


The United States Court of Appeals for the Eighth Circuit affirmed the dismissal of a federal court action seeking an injunction to prevent North Dakota disciplinary counsel from prosecuting a bar complaint against the plaintiff. The suit was filed by an attorney who is licensed in North Dakota and is a tribal attorney of the Three Affiliated Tribes. After representing five tribe members in wrongful discharge actions, he sought a 30% contingent fee. He was charged in a bar petition with  "unilaterally altering initial written agreements establishing a 10% contingent fee." A client complained that:

This man does not deserve a lawyer license, and does not deserve to represent anyone in court because of his tactics.

The court here rejected the contention that the Three Affiliated Tribes had exclusive authority to regulate attorney conduct on the reservation.

Hat tip to the North Dakota Supreme Court web page. (Mike Frisch)

July 12, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)


Posted by Jeff Lipshaw

I drove up I-75 from the Detroit area to Charlevoix yesterday, and was listening to the baseball game somewhere near Flint (WTRX, 1330-AM, part of the Detroit Tigers Baseball Network*) and heard an ad that I have to admit caught my attention.  I've debated whether I really wanted to give this lawyer the free advertising that this post would entail, but what the heck.  I leave to Mike and Alan to tell me technically whether there's a professional responsibility issue here; I can't decide if the lawyer is doing a public service or not.

It was a pretty standard divorce lawyer's radio ad ("When Matrimony Turns to Acrimony"), but what caught my attention was that the URL for the website was ""  It went by quickly, so at first I thought that was the URL for a law firm, and that seemed pretty squirrelly to me.  Would you really be doing a service to your clients by sending out communications to the courts, lawyers, and the public with your e-mail as "" (I should add, by the way, that I looked at this particular lawyer's online resume, and he seems to be a fully qualified, upstanding guy.)

I was wrong, however, about the website.  "Dump My Spouse" is not a law firm, or a law firm's URL.  It is a private referral service, obviously originated by this particular Flint lawyer.  It has a map of the state of Michigan with all 83 counties outlined, and you are supposed to click on a county to find a lawyer who is part of the "Dump My Spouse" referral network.  You can register to be part of the network.  I wasn't going to click through all 83 counties, but I clicked on a random sample and, as far as I can tell, this Flint lawyer is still the only member of the network, which may answer the question posed in the preceding paragraph.

De gustibus non est disputandum.

* When I'm in Michigan, I get to watch my beloved Tigers to my heart's content on Fox Sports Detroit, but this pleasure has been sullied somewhat by the fact that 1-800-CALLSAM, the quintessential wee hours cheap advertising personal injury law firm of my professional youth in the Detroit area, has obviously prospered to the point that it is now the major sponsor of the ballgames, including the CALLSAM Post-Game Report.  I think it even has one of the advertising spots right behind home plate, so that you get to watch Justin Verlander aim his slider at the right side of the M in alternate innings.  By the way, just to make it clear that I'm an equal opportunity curmudgeon on this issue, I would get almost as disgusted (note the Latin root by the way) when I'd be listening to "All Things Considered" on NPR, and find out that it was underwritten in part by Silk & Stocking, the biggest law firm in town, and one to whom I was sending thousands of dollars of our legal business, with some goony slogan like "It's an Uncertain World:  Be Advised" or "We Know the Territory."

July 12, 2010 in Law Firms, The Practice | Permalink | Comments (12) | TrackBack (0)

When Law Partner Spouses Divorce

When a married couple enter into a law partnership, the divorce and resulting termination of the partnership is likely to wind up as a published opinion. The lawyers married in 1987 and commenced the partnership in 1988. The partnership lasted about a year before one spouse (here the plaintiff)left the partnership. A divorce action was filed in 1999.

After the divorce, one spouse sued the other claiming that the fee-splitting agreement that was incorporated into the decree covered workers compensation matters as "personal injury" cases. The claim, if sustained, would have entitled that spouse to a share of fees. The Connecticut Supreme Court agreed with the lower court that collateral estoppel (from the divorce) barred the claim.

A dissent would find that the issue in the present litigation was not barred by collateral estoppel and that a trial on the merits should go forward.

(Mike Frisch)

July 12, 2010 in Law & Society, Law Firms, Partners | Permalink | Comments (0) | TrackBack (0)

Sunday, July 11, 2010

A Problematic Condition Of Reinstatement

A justice of the Massachusetts Supreme Judicial Court rejected and remanded a recommendation for reinstatement of an attorney indefinitely suspended in 2003. The Board of Bar Overseers had proposed reinstatement with certain conditions.

Justice Gants concluded that the proposed condition that the attorney not handle trust funds suggested that he could not be trusted as a lawyer:

I recognize that reinstatement on conditions is often appropriate and consistent with the standard for reinstatement. Public confidence is sometimes best served when a disbarred or suspended attorney who is reinstated is required, as a condition of reinstatement, to demonstrate his continued sobriety, his continuing legal education, or his adherence to accounting principles to protect client trust funds. I do not see, however, how the Board's condition that [the suspended attorney]refrain from handling client funds for five years is consistent with the Board's implicit finding, by its recommendation of reinstatement, that [he] is morally fit to practice law, that he is worthy of public confidence, and that he will be perceived by the public as morally fit. The condition suggests that he is fit to practice law as long as he does not handle client funds, which suggests that he cannot be trusted with those funds. This condition is significantly different from a condition requiring a reinstated attorney to conduct independent audits of client trust fund accounts. Such a condition applies the Russian proverb of "trust, but verify;" the prohibition against handling any client funds suggests that the reinstated attorney is unworthy of trust, even with verification. I do not believe the public will have (or should have) confidence in an attorney without also having confidence that the attorney will safeguard any client funds he may receive.

Consequently, I do not accept the Board's recommendation that [the attorney] is worthy of reinstatement as an attorney provided he not be allowed for five years to handle client funds. The issue before me, then, is whether [he] is worthy of reinstatement to the bar without this condition. There is nothing in the record or any indication from the hearing before me that the Board considered whether it would recommend reinstatement if [he] were permitted to handle client funds. Because I respect the knowledge and experience of the Board, and give due deference to its decisions, I do not wish to decide the question of reinstatement without first learning whether the Board recommends reinstatement if [he] is permitted to handle client funds. (perhaps with other conditions). 1, therefore, remand this matter to the Board with direction that it provide me this guidance no later than July 30, 2010.

(Mike Frisch)

July 11, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)