September 4, 2010
A Brief Bit of Bragging, FWIWPosted by Alan Childress
A good week with the project on republishing classics and publishing new work, also that my son turned 18, and the new students are so engaged and interesting. As to the project, the top ten eleven in "Jurisprudence" (Ok, top 11's a bit of a cheat, but no. 1 has not been available for a while now!--do not know why), at the Amazon Kindle Store are linked, and our books are 3, 4, 6, 11 (and all have paperbacks too). Plus Ted White's Patterns is at 26. So the number 3 is:
September 3, 2010
Theory and Practice in Contract Law Pedagogy
For those of you interested in how a longtime practitioner tries to dig into the theoretical basis of a legal education in contracts, I'm guest blogging this month over at The Faculty Lounge, and have offered up some thoughts on concepts and metaphors in contract law. [Jeff Lipshaw]
No Discipline On Witness Coaching Charges
The web page of the Virginia State Bar reports an order of the Circuit Court for the County of York, City of Poquoson, dismissing disciplinary charges against an attorney. The three-judge court found there was
no evidence that the Respondent coached, manipulated, prompted or prosecuted based on untruthful testimony, and [the court] thus struck each of the allegations of misconduct made by the Bar.
The accused is the Commonwealth's Attorney for the county.
Some details from the Virginia Law Weekly:
The ruling ends what had been scheduled as a three-day hearing at the York County courthouse. A similar hearing had been scheduled in August for [the attorney's] former assistant...[They] had been accused of coaching a co-defendant to present more credible testimony against Darryl Atkins, who was ultimately convicted of the robbery and murder of a serviceman.
The accusations against [the attorneys] became a focal point for criminal defense lawyers who complained the VSB often overlooked complaints of prosecutorial misconduct.
A commentary on the broader implications of the matter from the Southern Christian Leadership Conference is linked here. (Mike Frisch)
The Best Little ...house in Palau
From the most recent online edition of the California Bar Journal:
[An attorney] was disbarred in Illinois in 2008 for money-laundering in Palau and engaging in dishonest conduct by giving false testimony in his wife’s criminal trial. His actions amounted to moral turpitude, and the California State Bar Court determined he violated the state’s professional conduct rules. He did not participate in any of the proceedings brought against him.
[The attorney], who was licensed in the Republic of Palau and worked as an attorney for the Senate Legal Counsel Office, married a woman who operated a restaurant that fronted as a prostitution business. She deposited some of the funds from the business in a joint account she held with [him].
She was charged with money-laundering and, during her trial, [he] falsely testified that the money in their account came from his salary, his family and wedding gifts. He knew the money was from prostitution.
After the wife’s trial, [the attorney] was given an opportunity to respond to allegations by the Attorney Disciplinary Tribunal of Palau that he was aware of his wife’s business. He did not respond and the charges — giving false testimony, knowingly receiving proceeds from his wife’s illegal business and attempting to conceal the nature of the money — were deemed admitted. The charges constituted moral turpitude and he also was accused of once thwarting a police sting of the business. [He] was disbarred in Palau.
September 2, 2010
Turn Down the Music
An attorney drew a public censure from the New York Appellate Division for the First Judicial Department for the following incident:
Respondent's criminal convictions stem from an altercation with another patron at a restaurant he had attended with his wife and child. At some point, respondent was disturbed by noise emanating from a portable DVD player in a nearby booth, occupied by the patron and her father. Respondent asked her to turn down the music and also complained to the manager. After respondent voiced his dissatisfaction with the patron's adjustments and the manager's suggestion that he relocate, the verbal altercation escalated, culminating with respondent punching the victim.
The court found that the conduct was an aberration. (Mike Frisch)
Rapport With Opposing Counsel Does Not Prevent Ethics Lapse
A public censure was imposed by the New York Appellate Division for First Judicial Department in a matter in which the attorney had neglected a small claim and falsely notarized the client's signature on a document. The court set out the facts:
Respondent testified before the Referee that he had not wanted to file a complaint or engage in motion practice "unless it became absolutely necessary," because the claim had only nuisance value, due to weak evidence of liability or injury, and he did not want to diminish the potential settlement amount. In addition, he thought he "had a good relationship or rapport" with opposing counsel and "did not expect them to get so hard-nosed," "insisting on the statute [of limitations]" over a "very small claim." Respondent asserted that he felt assured a settlement would be reached, but once counsel told him the statute of limitations had run, he felt no recourse but to file a complaint and hope that he could defeat a dismissal motion by invoking equitable estoppel, and thereby force Metro-North to negotiate; however, he believed that Metro-North's offer of $2,500 was insufficient. He stated that he knew the limitations period was 1 year and 30 days and therefore affirmed in the complaint that it had been duly commenced within 1 year and 90 days.
Respondent claimed that he had no intention of misleading anyone when he falsely notarized his clients' signatures as having been made in his presence, and he was merely trying to "speed up the process." He maintained that there was "nothing fraudulent" or "venal" about such action, which did "not harm anybody," although it was "wrong" and he promised not to do it again. He also stated that, at the time he wrote his affirmation in opposition to Metro-North's motion to dismiss, he sincerely believed that his failure to timely file a complaint was due to opposing counsels' settlement posture, notwithstanding the fact that, according to respondent's own version of events, he merely spoke to one attorney at the PAL hearing, left a message after that, and subsequently asked for a transcript of the hearing from someone who did not identify himself over the telephone.
A suspension was not required under the circumstances:
...given the mitigating circumstances here, including that respondent did not profit from his misconduct, we find that the sole misrepresentation in respondent's affirmation to Supreme Court concerning the extent of settlement negotiations between himself and the attorney for Metro North is not enough to warrant the more serious sanction of suspension.
August 31, 2010
Attorney Possessed By Client's Deceased Wife
I thought that I had seen just about everything in the area of attorney misconduct, but a hearing officer's report from Arizona proves me wrong or at least lacking in imagination.
The hearing officer has recommended a six month and one day suspension of an attorney who, while in an intimate relationship with a client involving his late wife's estate, "claimed to be able to convey the thoughts of the deceased wife to the client." The attorney also was charged with falsely denying in a bar proceeding that "she had ever 'channeled' the thoughts of a deceased person to a client."
The attorney met the client while taking ballroom dancing lessons from him. She was retained to handle his divorce, but that representation terminated upon the wife's suicide. The attorney channeled the wife for three years, until she and the client stopped dancing together and parted ways.
Hearing Officer Coker (who always seems to get the interesting cases) found that the attorney made a false statement and notes:
...it is not up to this Hearing Officer to decide whether in fact Respondent was or was not truly possessed by and speaking for [the client's] deceased wife. Respondent believed it, [the client] believed it, as did at least two other independent people who witnessed it. Given all of this, it is hard to believe that Respondent schemed and connived to make all this up. Once it happened, it is certainly possible that Respondent got carried away with all the attention she received as a result of it and either embellished or exaggerated. On the other hand, Respondent could have genuinely believed in and felt controlled by circumstances.
A review of [the evidence] shows that having the spirit of [the client's] deceased wife within her was not an entirely pleasant experience for Respondent and the degree of her voluntary participation in it simply cannot be determined. The experts...cannot even agree on what was going on.
The sanction was proposed in light of the unique facts of the case. The attorney had once owned a new age boutique and given tarot readings.
As I said at the outset, this is the first case I have seen that illustrates the dangers of mixing spiritualism and law. (Mike Frisch)
The Influence Of High School
The Indiana Supreme Court has publicly reprimanded an attorney who represented a client in an employment dispute.
The attorney wrote a letter to the former employer demanding a $70,000 payment under the wage claim act. The letter further advised the former employer that the act is enforced by the Office of the Attorney General, that he had attended high school with the former Indiana Attorney General, and that "he did not think he would have much problem in getting his successor's attention."
The letter improperly stated or implied an ability to influence improperly a government agency or official. The attorney was sorry he sent it. (Mike Frisch)
August 30, 2010
Some Recent or Classic Books Printed--Some on Legal Profession, Some Not
Posted By Alan Childress
Following up on my project, with great authors, of bringing back some good old books that went out of print -- or putting out some new ones, such as Lisa Webley's study of lawyering styles in the UK, now on Amazon in paperback -- here is where we are, many now in print form. Admittedly some are on-topic (though Rogelio Perez Perdomo is on-topic for the profession in Venezuela, and in Spanish), while some just aren't but are part of the project so I hope this is useful. In addition to Kindle, Nook, and other ebooks easily found en masse at the Kindle Store, and B&N, etc., here are all the paperbacks out now [or will be listed as available at the link within two days]. All previous works were very well reviewed when first out (hence my interest in them):
1. Jerold Auerbach, Rabbis and Lawyers: The Journey from Torah to Constitution. First with Indiana U Press, now in paperback; studies the legalism that took over U.S. Jewish leadership in the 20th century and what they meant to Zionism, the Holocaust, and Israel. Disputes the usual meme that Brandeis, Mack, Wise, and Frankfurter were the best leaders for their cause, and that lawyers are always the best leaders generally. Auerbach recently published on the Pueblo Indians, too.
2. G. Edward White, Patterns of American Legal Thought, published by Lexis before and now in paperback. Analyzes the tools and dilemmas of legal historicizing, the origins of gay rights, tort law in the U.S., and insights on Holmes and Brandeis. White has written some 14 books in all and was nominated for a Pulitzer. He is a law prof at UVa with a PhD in History and his JD from Harvard before that.
3. Susan Neiman, Slow Fire: Jewish Notes from Berlin. Was with Schocken, now in paperback, and the author recently wrote 2008's Moral Clarity. Her debut memoirs were about West Berlin in the 80s, before the Wall fell, and her sometimes surreal experiences living there as an American and as a Jew. They did not call cigarettes Salem because it sounded too Jewish. Insightful period piece and very witty from the Director of the Einstein Forum. Jeff loved this book and suggested I ask Neiman to re-up it.
4. Grandfather J. B.: Letters to my Grandson. Memoirs in letters by Joseph Bercovici to his poly sci grandson Joel Grossman, now at Johns Hopkins, during the 60s. Published by Little, Brown before. Explores the nuances of English from a self-taught immigrant, and a family of prodigies seen through his acerbic and sometimes naive letters. Even explains why irregardless is wrong, and chastises Joel for his VW bug.
5. Cardozo's The Nature of the Judicial Process (also on Amazon main site), featuring new Foreword by Andrew Kaufman, law professor at Harvard and his premier biographer. Just out and should be the standard work since it is much more legible and modern than the original Yale print run but still embeds its page numbers for citing. Includes photographs and interesting bio information on Cardozo. Does not engage the question whether Cardozo was the first Hispanic Justice, though Kaufman has been interviewed on that. Cardozo looks like Conan. Kaufman, who was punctual as all get out and kind, is shown left. He is on-topic for the blog, since he wrote the first casebook on legal ethics in the U.S.
6. My own The Annotated Common Law (also on Amazon), adding some 200 notes to Holmes's classic book, to decode and demystify it. Translates Latin and Greek but mostly makes it modern, in both the print presentation and in bringing his phrasings up to date. Also defines legal terms and updates legal concepts so even nonlawyers and history buffs would read this with a clear understanding. Most versions of this book are hard to read in content and even in presentation; the digital books had been error-ridden nightmares. Includes my
7. An unannotated basic, cheap paperback of Holmes but with my Foreword, plus the modern but accurate presentation and embedded pagination missing in most versions, online or print. The Foreword author's most recent book is the coauthored treatise, Federal Standards of Review, 4th ed. 2010, LexisNexis Co., a link to which Lipshaw declared, "That's a 'spensive mother." True, for the Lexis treatise, though the basic The Common Law is like $13, better than most on Amazon; also on Amazon here.
Also from blogging before but now in paperback on Amazon: 1. my students' ethics survey, Hot Topics In The Legal Profession; 2. Kadish & Kadish, Discretion to Disobey; 3. Kitty Calavita, Inside the State: The Bracero Program, Immigration and the INS; 4. Joel Handler, Law and the Search for Community; 5. Peter Gabel's CLS essays, The Bank Teller; and 6. Auerbach's Jacob's Voices. Dean, that is how I spent my summer.
The Future of the Legal Academy - Redux
Posted by Jeff Lipshaw
There's been a small outbreak in the blogosphere of the practitioner-professoriat wars, and I think we can trace this instance of virulence to a screed by someone named Bruce Newton dispassionately entitled Preaching What They Don't Practice: Why Law Faculties' Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy. I suspect our readership tends to the practitioner, so here's a set of links to the academic side of the house, including Paul Caron, Steve Bainbridge, Rick Garnett, Paul Horwitz, Jason Mazzone (HT Solum), Lawrence Solum on Jason Mazzone, Kristen Holmquist, Jonathan Adler, and the Anonymous Law Librarian.
Given as I am, generally, to skepticism about either-or positions, and partial as I am both to practical skills and to impractical scholarship (having done a lot of each), I stick by my dean speech from several weeks ago. The Mazzone post, which went up today, returns to a theme I'm pretty sure Larry Solum has worked with over the last several years, the idea of a department of legal studies that is part of the university housing sciences and the humanities, requires a Ph.D. for entry, and is separate from the professional training schools. Nevertheless, as I mentioned to Larry in an e-mail earlier today, the realpolitik of the situation is that the academic reputation of the school is largely the basis for its recruitment of high ability students, high ability students reinforce the academic reputation of the school, and there's a vicious or virtuous circle (depending on your point of view). What that keeps saying to me is that there really is less "training" than meets the eye, and far more filtering of pure analytical ability, in the same way that college athletics filter pure athletic talent. Other failure modes, like arrogance, poor judgment, poor social skills, etc., are more difficult to filter in school, and are "later-career" differentiators. When I was hiring lawyers, both as the member of a committee in a big firm, and as a GC looking for more mature lawyers, the critical thing was talent, not particular skills. And we (or I) filtered for the other failure modes.
And, notwithstanding the meltdown of the last couple years, the markets for lawyer talent have pretty much worked in that way, at least in Big Law. Having said that, the markets (students and firms) now seem to be demanding skills training, although I find that evidence to be anecdotal more than compelling. More importantly, all of us seem to be recognizing that the base level of legal training necessary to identify talented lawyers doesn't extend much beyond the traditional first year curriculum. So there's a logical focus on revamping the second and third years.
I'm teaching first year contracts for the first time since the fall 2005 at Wake Forest, when I taught a doctrinal class for the first time (and barely knew what I was doing). The reasons I'm a "stick to doctrine" skeptic for law school became apparent again to me as I confronted the unreality of most of the traditional contract law syllabus. I started on an article about frames of reference, no doubt far too impractical to concern those focused merely on practical (or doctrinal competencies), but I've excerpted a motivating anecdote below the fold.
Here's the excerpt:
Friends of ours who lived in the Chicago area owned a small house in a resort area in northern Michigan. He was the CEO of a large corporation. They decided they wanted to knock down the house and rebuild, hired an architect, got zoning approval, and came to an oral understanding with a builder in the area who not only had done many projects with the architects, but had successfully completed a much larger house for one of our friends' cousins. The builder gave our friends his standard four-page contract, which they proceeded to give to their lawyer in Chicago for review. The lawyer not only marked it up, but also added a fifteen-page addendum, including a lengthy "Certificate of Limited Warranty." Our friend called to tell me that the builder had received the markup, called her, and was "freaking out."
There was nothing wrong with the contract our friends' lawyer was proposing; in the right frame (say, between a commercial developer and a large-scale builder), it would have been a typical contract negotiation. The unreality in this context was the very idea that the risk allocation provisions of the proposed draft (including the so-called limited warranty), dependent on resort to adjudication for resolution, had value. Indeed, because they caused a rift in the relationship between the builder and our friends, they may have had negative value. The lawyer did exactly what transactional lawyers applying a legal before-the-fact frame of reference are trained to do. "Thinking like a lawyer" means imagining hypothetical future disputes, and then crafting contract language designed to having the client prevail if the hypothesized facts obtain. Moreover, thinking like a lawyer wholly within the contract frame of reference means viewing the hypothetical future disputes as real, and therefore as cost-laden, as the construction itself.
Stepping back, however, we can see that adopting the contract frame was only one of various approaches to the contingency and uncertainty. The operative frame for the builder, working as he did in a small town, was "trust." My assessment was that anticipating litigation (and therefore constructing complex risk allocation models in the contract) was the wrong frame to have predominated in the discussion; it was unrealistic to expect that post-construction dispute resolution had value. Indeed, most of the remedies, it seemed to me, were non-legal. The contract needed to provide that our friends tightly controlled the disbursement process so that the state of completion roughly matched the funds expended and lien waivers obtained. It meant understanding how small residential builders actually worked and fitting a model of project supervision to the usual frame (at least in northern Michigan) of trust and the minimally necessary legal rights, rather than forcing the situation into an unrealistic frame of contractual rights, duties, and remedies.
The point generally is not to ignore the "thinking like a lawyer" frame, but both to master its techniques and understand its limitations in expressing understandings or achieving results. To propose an analogy, it is well known that Picasso was a masterful representational artist. His pencil drawings were sublime. Nevertheless, even having mastered the technique, he found it insufficient for the meanings he wanted to convey in his art, and he adopted different frames (albeit expressed in modes or styles of painting).
It's the first day of school at the Georgetown University Law Center and today's topic is the duty of confidentiality. We ethics profs always warn our students about the dangers of gossiping about their client's matters. We call it the "cocktail party chatter" doctrine (at least we do Inside the Beltway).
Well, an Indiana lawyer was privately reprimanded last week for exactly that--the attorney had referred a divorce client to another lawyer. The client (AB) filed for divorce but dropped the case and reconciled with her spouse. Then:
In March or April 2008, Respondent was socializing with two friends, one of whom was also a friend of AB's. Unaware of AB's reconciliation with her husband, Respondent told her two friends about AB's filing for divorce and about her husband's accusation. Respondent encouraged AB's friend to contact AB because the friend expressed concern for her. When AB's friend called AB and told her what Respondent had told him, AB became upset about the revelation of the information and filed a grievance against Respondent.The court found that the duty of confidentiality applied here as AB was a prospective client governed by Rule 1.18. The private reprimand does not identify the attorney. (Mike Frisch)