January 26, 2010
Suspension For Unlicensed Practice
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio has indefinitely suspended [an] attorney...for intentionally misleading a juvenile court magistrate regarding his identity and the status of his license to practice before that court.
In a 7-0 per curiam opinion, the Court agreed with findings by the Board of Commissioners on Grievances & Discipline that, despite having failed to comply with the Court’s biennial registration requirements since 1995 and having his license suspended for that rule violation, [the attorney] attempted to represent a client in a 2008 case before the Greene County Juvenile Court and made repeated false statements to the magistrate in the case in an effort to disguise the fact that he was practicing while under suspension.
The opinion is linked here. The attorney had left practice in 1992 to accept a job in the insurance industry. The representation involved the child of a co-worker. The accused conceded that the conduct was "stupid." (Mike Frisch)
January 25, 2010
One Client Too Many
An attorney who had represented a criminal defendant at a trial in which the key witness (who made controlled drug purchases from the defendant) was also a client engaged in an impermissible conflict of interest warranting reversal of the conviction, according to a recent decision of the Kentucky Supreme Court. The attorney had represented the witness on charges that had led to probation and continued to represent the witness in probation revocation proceedings, where his testimony against the other client was relevant to the disposition.
When the defendant raised concerns prior to trial, the judge responded that the two matters were "unrelated." The defendant replied that it was his lawyer's other client who had "brung these charges against" him but could not articulate his concerns other than that his lawyer might have "bad thoughts" about him. The lawyer's response: " I defend everyone that I am appointed to represent equally."
At the trial, the lawyer attacked the credibility of the witness/client. On appeal, the court held that the trial judge had "confused prejudice resulting from the conflict with the conflict itself." The lawyer was confronted with the problem of helping one client at the expense of another. Trying to balance the competing interests was "a worse alternative, as it would require doing only half a job for both clients." There were also "subtler but no less real conflict[s]" due to the competing confidentiality interests of the two clients.
The court agreed with the defendant, who when asked how a conflict could exist, stated 'How could it not be a conflict of interest? "
Good question. (Mike Frisch)
One For The Books
The Indiana Supreme Court suspended an attorney for six months without automatic reinstatement. The attorney was the elected county prosecutor for Crawford County. While in office, he used county funds to purchase a new set of West's Indiana Code for his office and donated his personal set to the county public library. When he was defeated for reelection, he took the new Code with him, leaving the prosecutor's office code-less.
The attorney also had falsely stated that he had donated the new Code to the library. He subsequently reimbursed the county. The court indicated that the discipline might well have been more severe if the matter had been submitted without an agreement between the parties: "...in light of the Court's desire to foster agreed resolutions of lawyer discipline cases, the Court now APPROVES and ORDERS the agreed discipline." (Mike Frisch)
Kettlewell Award Given To Jeanne Gray
The Association of Professional Responsibility Lawyers ("APRL") announces:
Beginning in April 2010, the Association of Professional Responsibility Lawyers, the nation's largest association of legal ethics practitioners, will present its first Charles W. Kettlewell Legal Ethics Advisor Award to a lawyer who has demonstrated excellence in and dedication to the field of legal ethics and professional responsibility, by representing, advising, educating or mentoring lawyers. APRL was founded in 1990 primarily by lawyers who represent and advise lawyers and the Kettlewell Award is intended to recognize superior lifetime achievement and contribution in the “law of lawyering” field.
The Kettlewell Award is named in honor and in memory of Charles W. (“Chuck”) Kettlewell, who was one of APRL's founders and who served as its first President. Kettlewell, who passed away in 2005 in the prime of an outstanding career, was an internationally known expert in professional responsibility and legal ethics. He was an assistant disciplinary counsel in Ohio for many years and also served as a member of the ABA Commission on Evaluation of Disciplinary Enforcement (the “McKay Commission”), President of the National Organization of Bar Counsel (NOBC), a charter member of the ABA Center for Professional Responsibility, and an adjunct professor of professional responsibility at the Moritz College of Law at Ohio State University for more than 25 years. In 1987, Kettlewell entered private practice and immediately became the most sought-after ethics advisor and disciplinary defense lawyer in Ohio and a national leader in the ethics field. He handled dozens of disciplinary proceedings, advised countless lawyers and law firms on a wide variety of professional responsibility issues, and served as a mentor and teacher to scores of lawyers. In 2003, Chuck Kettlewell received the ABA's Michael Franck Professional Responsibility Award, in recognition of his wide-ranging lifetime contributions to the field of legal ethics.
Chuck Kettlewell was nationally recognized for his practical, common-sense approach to professional responsibility and attorney regulation. He had an unfailing talent for applying ethics rules in a practical, objective, and farsighted manner. He was an advisor and consultant to thousands of lawyers, a formidable advocate for clients involved in disciplinary and bar applicant proceedings, and an outstanding colleague to professional responsibility lawyers around the world. Kettlewell exemplified the highest standards of professionalism and the Kettlewell Award will recognize other lawyers who have made similar achievements.
The first Kettlewell Award will be presented at APRL's special 20th Anniversary Meeting in New Orleans, April 15-17, 2010. APRL's Board of Directors established a Special Committee to review nominations for the Kettlewell Award and appointed Past APRL President Ellen A. Pansky as Chair of the Kettlewell Award Committee. The Committee completed its work and made a recommendation of its selection to the APRL Board, which approved the selection by acclamation.
The Kettlewell Award Committee and the APRL Board of Directors is thrilled to announce that the first recipient of the Kettlewell Award is Jeanne P. Gray, a founding member of APRL, Director of the American Bar Association Center for Professional Responsibility, a dear friend and colleague of Chuck Kettlewell, and a visionary leader in developing legal ethics policy through the publication of scholarly resources, professional consultation services, promotion of competence and professionalism, and providing lawyers assistance in solving ethical conundrums with a unerring view toward client protection.
Prosecutor Charged With Failure To Disclose Exulpatory Evidence
The North Carolina State Bar has recently filed a disciplinary complaint against an assistant district attorney who was assigned to prosecute an arson case. The allegations involve a series of statements given by a witness with whom the defendant was visiting at the time of the arson. The witness originally sais that she was out of her home running errands for over 2 1/2 hours. The arson took place close to her home, giving the defendant plenty of time to burn and return. The prosecutor turned this statement over to the defense.
The witness later gave two statements that greatly decreased the defendant's window of opportunity to commit the crime. The State Bar alleges that these exculpatory statements, and other confirming information, were not disclosed as required by statute and case law. The statements came to light during the trial and had resulted in a mistrial. The prosecutor is also charged with deceiving the defendant and his counsel about the evidence against him. (Mike Frisch)
The Georgia Supreme Court accepted a petition for the voluntary review panel reprimand in a matter involvling a complaint filed by a business partner of the attorney's spouse. The spouse had cash advances from his American Express account deposited through the attorney's business operating account. The attorney admitted that she violated Rule 8.4(a)(4) "by allowing her operating account to be used even though legal servicers were no provided." The court noted that the attorney has a spotless disciplinary record and no client funds or matters were involved.
In an unrelated matter, the court imposed disbarment of an attorney who "over a period of the three years, while [he] was employed with a law firm, forged the signature of one of firm's principals on checks payable to the firm for attorney's fees and deposited the checks in his personal account. The total sum was $343,639.54, and [he] used these funds to pay his mortgage, credit card bills, and college tuition. He also gave some of the funds to his wife for the purchase of a second home." The attorney had petitioned for voluntary discipline within a range of sanctions that included disbarment.
Finally, the court rejected a special master's proposal for two review panel reprimands of an attorney who, after his suspension, had retained legal fees that he could not earn in light of his status. The State Bar had not opposed the special master's recommendation. (Mike Frisch)
January 24, 2010
Cognitive Science, Contracts, Entrepreneurship, and A Tale of Two Karls (It Was the Best of Formalism; It Was the Worst of Formalism)
Posted by Jeff Lipshaw
I continue to plug away at my work on judgment, worrying most of the time that I'm going to create something that looks like Norma Desmond's script of Salome (see Sunset Blvd.). As I mentioned in previous posts, I'm reading Steven Winter's A Clearing in the Forest (now at page 237 of 357), and again want to give it a plug as perhaps the smartest, most original, and most satisfying attempt to reconcile foundationalism and indeterminacy in the law I've yet seen. As I mentioned to Professor Winter in an e-mail several weeks ago, it's a book I wish I could have written.
Coincidentally, as I began putting together this post, Larry Solum posted an abstract of a piece that looks to embody what Professor Winter calls the "antinomial capture" of traditional rationalist and reductivist jurisprudential thinking. That is, either you think law is a coherent and rational matrix of positive rules (i.e., a "formal" system, though not formal in the deductive sense) that largely guides the decision-maker, or you are a realist, believing that results are wholly indeterminate, and there is no middle ground. I think this is a meta-issue that goes to the tensions between orthodoxy and reform in any tradition or institution, whether it be Judaism, constitutional interpretation, or faculty governance. For example, if we don't have a foundational anchor that says being a Jew means a particular Halakhic observance of all 613 commandments, then does it mean that anything goes and there is no meaningful determinant of what it means to be Jewish? To me, the Lubavitchers (very Orthodox) versus the Hebrew Union College (very liberal) looks a lot like Scalia versus Breyer!
Professor Winter calls on developments in cognitive theory to eliminate the antinomial capture. To oversimplify his point, is there a way to anchor how we make sense of the world without resorting to the extremes of either "p or ~p" thinking, on one hand, or complete indeterminacy on the other? No, judgments are not reducible, but that very irreducibility can be explained in a way that is "scientific" or "non-transcendental." We are free (as Kant would suggest), not because our minds are disembodied, but because our embodied brains give us irreducible capacity for imagination. The law seems to radiate both aspects of the paradox - a bindingness to the past with an apparent indeterminacy for the future.
The antinomy that nevertheless pulses through A Clearing in the Forest is the one between:
(a) rationalist, reductivist thinking - something is or is not within a category; something fits the proposition or not; semantic meaning requires objective reference to something - and
(b) an enlightened understanding that human beings are hardwired to make and extend meaning in a socially constrained, non-formalistic, yet non-indeterminate, way. We think not in fixed categories, but by way of evolutionary and culturally developed basic schema - "idealized cognitive models" - complete with prototype effects. In my doctrinal area, I see this most explicitly in the "what is a security?" cases like SEC v. Howey. Rational, reductivist legal thinking wants a p or ~p definition: "a security is a contract under which a person invests money in a common enterprise with the expectation of a return on the investment through the efforts of others." Yet at the margins we find ourselves throwing out the propositional, linguistic model, and returning to analogies or metaphors to the prototype of the ICM: how much does this instrument look and feel like a share of common stock?
It's fair to say that Professor Winter would categorize most traditional legal theory under (a) versus (b), although it's a subtle categorization - one that argues (a) springs from the same cognitive building blocks as (b), except that the (a)s don't recognize it. I am just now getting my mind around how this stacks up with a thesis I've advanced both in contract theory and the attempts to develop a field of law and entrepreneurship (as recently noted by Gordon Smith at Conglomerate and Jeff Yates at PrawfsBlawg, Duke Law School just announced it's offering an LL.M. in law and entrepreneurship). [UPDATE: Danny Sokol and Larry Ribstein also chiming in on the law and entrepreneurship program.]
I will get to the two Karls - Popper and Llewellyn - below the fold.
Both Karls struggled with the antinomy of authority and indeterminacy. Popper's was that he rejected all argument from foundation or authority (in science and politics) in favor of arguments from merit, yet refused to give up on the idea there is an objective truth. His foundational fulcrum was the process of seeking truth, not truth itself. That process depends, whether in science, politics, or philosophy, on an orientation to truth, namely being open to criticism.
If we thus admit that there is no authority beyond the reach of criticism to be found within the whole province of our knowledge, however far it may have penetrated into the unknown, then we can retain, without danger, the idea that truth is beyond human authority. And we must retain it. For without this idea there can be no objective standards of inquiry; no criticism of our conjectures; no groping for the unknown; no quest for knowledge. (Conjectures and Refutations, 2002, p. 39)
In Winter's account, Llewellyn's critique of formalism arose from the same antimony. In his 1934 Columbia Law Review essay, Llewellyn observed that an institution like the Constitution "is in first instance a set of ways of living and doing. It is not, in first instance, a matter of words.” Adjudication was not a matter of making order, but maintaining it when things when awry. And the mediation of the formalism of legal structures with the fluidity of living and doing was something called "situation sense," a subjective yet constrained ability to adapt to the antinomy by way of a particular craft or process. According to Winter, Llewellyn simply didn't have the conceptual tools to explain the mediation between formal rules and "living and doing." Winter argues instead that most legal rules already incorporate understood social constraints: what lawyers and judges do and produce is law, but it’s not unconstrained. Law is already the product of reified custom, tradition, and social practice by the time lawyers and judges start working with it. As Winter interprets Llewellyn, he couldn’t articulate the structure that mitigated against legal indeterminacy, so he erred the other way. “In the absence of a formalized construct like an ICM, Llewellyn could not capture the automatic, tacit sense of validity described by his concept of situation-sense.”
My argument about contracts, both generally and as they appear in the entrepreneurial setting, follows on this: it gets the cart before the horse, probably because it's the cart driver and not the horse who's doing the thinking and writing about it. Why do venture capital term sheets and contracts work even though there's almost no real world force to them? Why do most real world contracts work even though they are rarely litigated? Why do business people have a far more fluid reaction to contract terms than the lawyers? It is for the reasons Steve Winter argues: the social constraints reified in the contract predate the contract. The contracts may be important to the lawyers who write them (and the professors who teach them), but they are merely one way human beings make sense (or attempt to control) a highly contingent and uncertain future. Contracts are attempts to create law. Law is authority in the Popperian sense. Contracts are attempts to impose formal structures on the world. They work because it's not just judges, but good transactional lawyers and business people who use "situation sense" to mediate between formal linguistic mappings and the fluidity of the real world. Once again, to answer Gordon Smith's question,"law and entrepreneurship: do courts matter?", the fundamental answer is "no."
I think I part company with Steve Winter in his ardent naturalism; I'm simply more agnostic. Whence comes this embodied and constrained capacity for irreducible imagination? He believes there's no transcendental nonsense; we were simply built this way. Moreover, he thinks justifying any kind of mind-body dualism (even the weak mysterious kind, rather than the Cartesian strong kind) is just another reflection of "the distorting rationalist apparatus of the subject-object dichotomy." I'm not yet satisfied to buy into the inductive argument that since science has so far explained lots of mysteries, it will explain this one too (eventually). That's because I don't understand how a mind in the world, but nevertheless considering itself, can ever relieve itself of the subject-object dichotomy, however distorting it may be. That's why I think judgment continues to be such a mystery, but that's a subject for another day.
Okay, Mr. DeMille, I'm ready for my close-up.
Is History Humbler Than Law?
Posted by Jeff Lipshaw
I drove down the famous Emerald Necklace to Dedham, Massachusetts, a town square tucked away next to the strip malls on US-1 just before it intersects with I-95 on the way down to Providence. It turns out Dedham has the only winter-friendly outdoor golf range anywhere near where I live, and I got the urge to hit golf balls. While I was there, I took in Crazy Heart, and loved it.
Dedham holds a special place in my memories, but not because I'd ever been there. My first real scholarly excitement came from several teachers in the University of Michigan's History Department in the early 1970s - Andy Achenbaum, who was a graduate student and went on to be one of the leading historians of old age* in the United States, and one of his mentors, Kenneth Lockridge, who taught the survey course on U.S. history before 1877 (that's the end of Reconstruction). Lockridge was one of a number of young historians doing detailed social history on early New England towns. Lockridge's town was Dedham, founded in 1636 as a utopian community, later the county seat of Norfolk County and a commercial center, and now a quaint square overwhelmed by the highway just to the east, but nevertheless maintaining an all-year driving range.
When I got home, I flipped through Lockridge's A New England Town: The First One Hundred Years, complete with the marginalia I put there as a nineteen year old undergrad, and was struck by the subtlety of the theorizing. What is the historian's theoretical project anyway? One deals in a thesis, not a model. "Interdependence." "Modernization." One realizes that the underlying subject is inordinately complex and one is thus respectful of it and humble in the assertion of all-encompassing, unifying answers. Lawyers and economics create models, and defend the models at all costs. Maybe it's because they think they are scientists.