October 8, 2010
Excerpt from Susan Neiman's Slow Fire
Posted by Alan Childress
Much of my (re)publishing project is in legal history, law and society, and legal ethics, yet one that is easy to get lost in older works but has no law to it at all may be the most entertaining and poignant. Jeff recommended it to me. It is by philosopher Susan Neiman (below), now the director of the Einstein Forum and previously a professor at Yale and Tel Aviv U. Her debut memoirs, Slow Fire: Jewish Notes from Berlin, lets us live in 80s divided Berlin before the Wall came down. It is in new paperback, Kindle, or (as of today!) Nook, and was previously a well-reviewed Shocken book. An excerpt:
My glass was empty when Dieter returned. “Do you want another wine?” he asked.
“No,” I said. “Let’s go somewhere else. I’m almost out of cigarettes. I need to find a machine that sells Salems.”
“Sorry, I mean Reynos. Salem is the American name for Reynos. I don’t know why it’s different here. All of the other imported cigarettes keep their old names. It’s the same cigarette, though, and the same packaging. In America I always smoked Salems. Here I smoke Reynos.”
“How’s it spelled?”
“And it’s exactly the same packaging?”
“Same colors, same number of letters, same design, everything.”
“Then it’s obvious. Salem would never sell here. The name is too Jewish.”
“Sure. Where do you think the name comes from?”
“I don’t know. Winston-Salem, North Carolina, I guess. There’s a Salem, Massachusetts, but they don’t grow tobacco there.”
“But it must come from Jerusalem, originally.”
“Jerusalem?” I repeated. “I never thought about it.”
“For German ears, it’s a Jewish name.”
I was dumbstruck.
“They pay a lot of attention to things like that,” said Dieter. “I used to do graphics for a big advertising agency in Hamburg. Once they wanted to import an American laundry detergent. They had to call off the whole deal when they learned it was called Puff.”
We laughed. Puff is German slang for “whorehouse.”
“Yeah,” I said. “It’s hard to know how you’d market it. ‘Whorehouse gets your clothes cleaner than any other brand.’ ”
“Let’s go,” said Dieter. “We’ll find you some Salems.” He pronounced it “Sah-lem.” It was half past two. “Look,” he nodded, “coming in the door. That’s Marina. A real Kreuzberg character. She never goes anywhere without her rat, and she always dyes her rat to match her hair.” I look closer. Sure enough. The long rat snuggled on her leather-covered shoulder was a brilliant, electric blue.
Snakes In A Court
The Kansas Supreme Court has disbarred an attorney for a series of incidents that reflected a rather profound civility deficit.
In one matter in the Shawnee Municipal Court, the attorney told a court clerk to tell a prosecutor to "get his ass in the courtroom." He later told a clerk that he wanted to "f***ing" file his papers and called a clerk a "f***ing bitch," who had better do what he told her to do. He was charged with and failed to appear on a resulting charge of disorderly conduct. He later served four days in jail.
In another matter, the attorney set off a magnetometer alarm when entered the Kansas City, Kansas federal courthouse. He refused to go through a second time and "began shouting profanities at the court security officers." There was a struggle and a deputy marshal received minor injuries. The attorney pleaded guilty to failing to comply with official signs and the directions of a federal officer. The article at this link describes the incident.
A third matter involved "abusive and bizarre behavior" in a state circuit court matter. He made accusations of corruption against the judge, stating that the "proceeding was a joke" and that the judge was "going to sit [his] ass up there." At a resumed hearing, he asked the judge whether he was a pedophile and stated to the judge that "you're going to sit up there with the audacity and the smugness of your holiness." These and related comments resulted in an 120 day jail sentence for contempt.
In another matter in Grandview Municipal Court, he began to yell at a bailiff who had asked him to keep his voice down and move to an area made available for attorney-client meetings. The attorney told the bailiff to get out of his face and that he could stand wherever he wanted. When he was held in contempt, he stated "all you guys in Grandview you are all snakes, that's all you are." In a proceeding two days later in the same court, he yelled "I'm back in Grandview. All the snakes are back again."
The court quoted the Hearing Panel:
...Respondent's conduct resulted in two criminal convictions, a contempt adjudication that lead to 120 days in jail, minor injuries to a United States Marshal, and an adverse impact on a [client's] military career. The Respondent's treatment of court staff and the judiciary was far below any acceptable standard. The Respondent's conduct caused a negative public perception of the legal profession. Finally, the Hearing Panel cannot ascribe any good cause, justifiable reason or mitigating factor to the Respondent's conduct in this case.
The military case mentioned in the above passage involved criminal charges against a member of the National Guard. The attorney was appointed to the military case; the family retained an experienced criminal lawyer for the criminal case. The attorney entered his appearence in the criminal case without being retained and caused a negotiated plea to break down. He also sought a fee for that matter. In the military case, he abused officers in his client's chain of command.
The court adopted the findings of the hearing panel, which included the client-related misconduct as well as the incidents described above. (Mike Frisch)
No Home At UPS
An attorney whose bar address turned out to be a UPS store mailbox has been suspended by the New York Appellate Division for the First Judicial Department for failure to respond the a complaint but not because the proofs conclusively establishe the alleged misconduct:
The Committee opened its investigation into respondent's conduct in March 2008 when it received a complaint alleging that respondent neglected an immigration legal matter on which he was retained, resulting in the client losing an opportunity to attain legal permanent resident status. In April 2008 the Committee received a second complaint which, according to the Committee, also alleges neglect of an immigration matter, and further alleges that respondent used the complaining client's identity to take out $150,000 in loans, lease an automobile, and obtain a credit card.
Respondent did not respond to the Committee's four letters, which were mailed to both his last known business and home addresses as well as other addresses associated with him. The Committee's investigator failed to reach respondent through telephone numbers associated with him, and investigation disclosed that respondent's listed home address was in fact a UPS store mailbox. He is delinquent in his attorney registration as well, having failed to register for the 2008-2009 biennial period.
By order dated September 23, 2009, the Committee was granted permission to serve the notice of motion to suspend on respondent by publication in the New York Law Journal (22 NYCRR 601.1), and the notice of motion was duly published.
Pursuant to 22 NYCRR 603.4(e)(1)(i), this Court may suspend an attorney from the practice of law pending consideration of charges of professional misconduct, upon a finding that the attorney failed "to comply with any lawful demand of this court or the Departmental Disciplinary Committee made in connection with any investigation." Respondent's failure to respond to the Committee's letters or its investigator's calls, and his failure to respond to this motion, establishes grounds for an immediate suspension from the practice of law (see Matter of Buggti, 7 AD3d 15 ; Matter of Gujral, 307 AD2d 28 ). However, the submissions as appended to the petition are incomplete and therefore fail to provide grounds for respondent's suspension pursuant to 22 NYCRR 603.4(e)(1)(iii).
Accordingly, the Committee's motion should be granted and respondent suspended from the practice of law, effective immediately, pursuant to 22 NYCRR 603.4(e)(1)(i), and until the further order of this Court.
Default Does Not Establish All Violations
The New Jersey Disciplinary Review Board has ordered a reprimand of an attorney who had been paid $600 to represent a client and had failed to appear for a rescheduled court session because he was owed a $200 balance. The attorney claimed, and the client denied, that the client had signed a form agreeing to a substitution of counsel.
The attorney admitted that he had not reduced the fee arrangement to a writing, as required. He denied any impropriety with respect to the substitution of counsel form. While the attorney had defaulted in the bar proceeding, the board concluded that the complaint did not allege sufficient facts to sustain any charge relating to the form. The board imposed a reprimand rather than an admonition because the attorney had failed to cooperate with disciplinary authorities. (Mike Frisch)
No "Serious Crime"
A criminal conviction for possession of a handgun (misdemeanor) does not involve a "serious crime" and merited a public censure, according to the New York Appellate Division for the Second Judicial Department. The attorney had a record of prior discipline:
In determining an appropriate measure of discipline to impose, the Grievance Committee points out that the respondent's disciplinary history consists of a Letter of Caution dated January 15, 1999, for failing to re-register with the Office of Court Administration, and a Letter of Caution dated October 22, 1999, for his carelessness with documents entrusted to him by a client and his failure to maintain required records of the criminal defense he claimed to have provided to the complainant. The respondent was also issued an Admonition dated May 30, 2007, for engaging in an improper use of his escrow account, which he essentially used as an operating account. The Grievance Committee directed the respondent to ensure that his escrow account is used exclusively to safeguard client funds and to refrain from commingling any personal funds in that account. None of those matters involved misconduct similar to that involved in the instant case.
In view of his conviction of a class A misdemeanor, which was not deemed to constitute a serious crime within the meaning of 22 NYCRR 691.7(b) or Judiciary Law § 90(4)(d), the respondent is publicly censured.
October 7, 2010
"Amber Alert" Sanction
The web page of the Ohio Supreme Court reports:
The Supreme Court of Ohio today imposed a six-month suspension, with the full term of suspension stayed on conditions, against the law license of [a] Judge...of the Cuyahoga County Court of Common Pleas based on his actions and statements in a 2007 criminal case before his court.
In a 4-2 per curiam decision, the Court adopted findings by the Board of Commissioners on Grievances & Discipline that [the judge] improperly attempted to initiate an “Amber Alert” for two witnesses who had failed to appear for the defendant’s scheduled trial, and made improper public statements in court and during an in-chambers meeting with the news media in which he asserted his belief that the defendant had intimidated or interfered with the missing witnesses when there was no factual evidence in the record to support those assertions. The Court agreed with the disciplinary board’s conclusions that [his] actions constituted conduct prejudicial to the administration of justice, manifested bias against the defendant, and called into question his own impartiality and the fairness and impartiality of the judicial process.
The Court’s majority opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Terrence O’Donnell and Robert R. Cupp. Justices Maureen O’Connor and Judith Ann Lanzinger dissented, stating that they would impose a stayed one-year license suspension as the appropriate sanction for [the] misconduct.
Chief Justice Eric Brown did not participate in the court’s deliberations or decision in this case.
The underlying case involved the failure of an 83 year old witness to appear at a criminal trial. The judge was concernined about possible obstruction of justice.
The court's opinion is linked here. (Mike Frisch)
A Run Of Bad Luck
The Louisiana Supreme Court has imposed a two-year suspension of an attorney for misconduct in two matters. One involved multiple failures to appear in bankruptcy matters; the other the failure to pay medical providers out of a personal injury settlement. The attorney had also not complied with trust accounting obligations, which the Disciplinary Board found was likely the result of negligence. The client had been pursued by creditors as a result of the failure to pay.
The attorney had lost her office to Hurricane Katrina in 2005 and a second office to a fire in 2007. There were no records of the personal injury case and even the settlement amount was in doubt. The attorney filed a statement agreeing to any discipline imposed but had not participated in the bar hearings. (Mike Frisch)
October 6, 2010
Let The Sunshine In
The Oklahoma Supreme Court has refused the request of a sanctioned attorney to seal and expunge the records of the bar discipline proceedings. The court concluded that the public interest required that such records be open and available to interested persons:
A lawyer's record of prior professional conduct is always open to scrutiny by this Court when he or she is before the Court in a professional disciplinary matter. We have explained that there is no equitable statute of limitations in Bar disciplinary proceedings and that "[t]his Court does not take lightly charges against a member of the Bar regardless of when they occurred..." (citation omitted)
This Court has also explained that "[t]he regulation of licensure, ethics, and discipline of legal practitioners is a nondelegable, constitutional responsibility solely vested in this Court in the exercise of our exclusive jurisdiction." (citation omitted)
The Court's need for a complete record of a lawyer's professional conduct in a disciplinary action and the exclusive jurisdiction of this Court in Bar disciplinary matters explains, in part, why examination of a lawyer's conduct is not necessarily limited to the ten years preceding the filing of the disciplinary complaint in this Court...
The court held that the request was governed by the its exclusive authority to regulate the legal profession rather than by expungement statutes. The attorney had been convicted of bribery of a witness. (Mike Frisch)
No License Required
An investigative reporter with 30 years of experience was denied the right to renew her license from law authorities to work as a death penalty mitigation specialist. An administrative law judge concluded that her work did not require her to have a license as a private investigator. The South Carolina Court of Appeals affirmed the decision.
In 2001, following a thirty-year career as an investigative reporter covering high profile stories and court cases, O'Shea began working as a death penalty mitigation specialist. Based on advice that a professional license would be a good credential for obtaining work in her new field, she applied to SLED [South Carolina Law Enforcement Division]for a private investigator's license.
Currently, there are about six individuals doing death penalty mitigation work, four or five of which are licensed as private investigators. According to O'Shea, her work as a death penalty mitigation specialist includes: compiling social histories, gathering documents and other information, interviewing family members of clients and other individuals, and analyzing the material she acquires to help attorneys for capital defendants develop strategies. Although her work is geared toward the penalty phase of a capital case, she occasionally participates in the guilt phase. She rarely, if ever, testifies.
O'Shea described herself as "self-employed," with death penalty mitigation work as her primary job. She is usually contacted directly by an attorney desiring her services. If she agrees to take the case, counsel then requests the presiding judge to appoint her. She charges by the hour according to the fee approved by the presiding judge. The approved fees are paid by the Office of Indigent Defense. It is undisputed that O'Shea does not work exclusively for any one attorney or law firm. Nevertheless, she considers herself part of each defense litigation team that uses her services.
In 2007, after she had worked as a death penalty mitigation specialist for about six years, O'Shea was unable to renew her private investigator's license because of financial problems resulting mainly from medical problems that prevented her from working. As a result, her license lapsed on September 16, 2007. When she was able to resume working, she did not renew her license; however, she notified SLED that she was working on only one case and was not gathering any new information.
Later, however, a SLED agent contacted O'Shea to arrange an inspection of her records, explaining this was a routine procedure that should have been done every two years. O'Shea initially intended to comply with the request until SLED demanded access to all of her records for the past year. O'Shea refused to comply with this demand because of the volume of paper involved. She contacted the attorneys with whom she had worked in the past year, all of whom took the position that the files in her possession belonged to counsel and were protected by the work product doctrine. O'Shea offered to provide invoices with names redacted, but SLED did not respond to this offer.
On October 24, 2007, O'Shea applied to renew her license. SLED refused to authorize the renewal for several reasons, among them O'Shea's prior refusal to allow an inspection of her records. In December 2007, O'Shea, now represented by counsel, filed this action in the ALC, seeking an order directing SLED to renew her license or, in the alternative, an order declaring that death penalty mitigation specialists were not subject to the licensure requirements that applied to private investigators.
October 5, 2010
The Michigan Attorney Discipline Board has issued an order that brings to an end a part of the Kwame Kilpatrick legal ethics morass. Samuel McCargo was suspended for 179 days for his role in the representation of the then-Detroit Mayor in much-publicized litigation involving intimate text messages. As a result, two of the five bar discipline cases stemming from the litigation are concluded, two are before the board on appeal from hearing panel orders and one is still pending a hearing panel report. The particulars may be found at this link.
The notice of suspension was issued by the board after no exceptions were filed from the hearing panel order that had imposed the 179 day suspension. (Mike Frisch)
A Single Lapse Does Not Prevent Reinstatement
The Pennsylvania Supreme Court agreed with its Disciplinary Board and reinstated an attorney who had been suspended for five years in 2004. The attorney had been convicted of criminal attempt to commit involuntary deviate sexual intercourse after he arranged a meeting over the Internet with an agent of the state Attorney General's office who was posing as a mother offering herself and two minors for sexual activity.
The petitioner "provided evidence that he is rehabilitated from the sexual addiction that lead to his arrest and conviction." He has participated in therapy groups and a 12 step program.
He disclosed "an incident of relapse that occured in 2006." He was anxious about his employment situation, which led him to look at Internet pornography. He told his therapy group, his probation officer and his wife. (Mike Frisch)
False CLE Statement Draws Reprimand
From the web page of the Virginia State Bar:
On September 22, 2010, a Virginia State Bar Fourth District-Section 1 Subcommittee issued a public reprimand with terms to [an attorney] for violating professional rules that govern knowingly making a false statement of material fact and conduct that reflects adversely on a lawyer's fitness to practice law. [The attorney] falsely certified that she had attended a mandatory continuing legal education teleconference. This was an agreed disposition of misconduct charges.
There are jurisdictions that would impose a much stiffer sanction for this kind of misconduct, unless there is significant mitigation not reflected in the discipline summary. (Mike Frisch)
Arbitration Rule Enforced
An attorney filed suit in Maryland Circuit Court for a declaratory judgment to enforce his claim to 50% of an award affirmed on appeal. He in turn appealed a decision that removed the case to the District of Columbia Bar's fee arbitration process and thereafter enforced the award in favor of the client.
The attorney argued that there was no arbitration provision in his retainer agreement with the client. The Maryland Court of Special Appeals held that the attorney was obligated to arbitrate and affirmed the judgment:
...when [the attorney] elected to avail himself of the right to practice in the District of Columbia, he agreed to abide by the Rules established by the District of Columbia Court of Appeals. Pursuant to [applicable rules], [he] agreed to arbitrate a fee dispute with [the client] upon her request. [The attorney's] contention that there was no agreement to arbitrate fee disputes is without merit.
The court also rejected the contention that the issue between the parties was not a fee dispute.
The client's case involved injuries sustained at a hotel in the District of Columbia. (Mike Frisch)
Blowin In The Wind
In another of a series of recent cases involving the duty of confidentiality, the Indiana Supreme Court imposed an agreed public reprimand of an attorney who had asked his adult children to dispose of 12-14 banker boxes of client files. The boxes were taken to a recycling bin but placed on the ground rather than in the bin itself. The wind blew the top off of some boxes and client files were scattered in public view. The attorney learned of the problem and retrieved the documents. Nonetheless:
This case highlights the critical importance of an attorney's responsibility to safeguard sensitive client information. Even if Respondent's files had been placed inside the recycling bins, the information would have been available for opportunists to retrieve, with potentially devastating consequences to the clients. Shredding client files the attorney no longer needs prior to disposal is one alternative for providing safer protection of client information.
The attorney had two prior public reprimands. No indication how this came to light. (Mike Frisch)
October 4, 2010
The New York Appellate Division for the Second Judicial Department imposed a six-month suspension on a attorney who had violated escrow obligations. The court found that the mitigation warranted the sanction:
In mitigation, the respondent testified that he came to the United States for college and that English was not his first language. Upon graduating from law school, he embarked on a career in corporate law and finance. In 2005, he left corporate law and opened a neighborhood law office, handling immigration and real estate matters. He admitted that he was unfamiliar with the rules governing escrow accounts. He opened three accounts: a checking account, an escrow account, and a money market account, all linked. The respondent testified that he did not realize at the time that transferring escrow funds back and forth between accounts was improper.
When apprised by the Grievance Committee that his escrow practices were improper, the respondent immediately ceased such practices. He was remorseful and candid throughout the Grievance Committee's investigation.
Notwithstanding the mitigation proffered, the respondent is held to the knowledge of the rules governing attorney escrow accounts. His misguided attempts to safeguard his clients' funds violated the rules governing attorney escrow accounts, and as such, constitute professional misconduct.
When an attorney enters into the type of practice that requires personal attention to escrow obligations, training in the principles of trust accounting is essential. (Mike Frisch)
The Louisiana Attorney Disciplinary Board has recommended the permanent disbarment of a former district judge of Caddo Parish, who was convicted of bribery. The judge left his elective office in the wake of the conviction.
The scheme involved a bail bondsman and charged that public bribery "occured during various occasions involving his service as a district judge, including the exchange for cash and other things of value to make [the judge] available to quickly set bonds, reduce bonds, recall arrest warrants and remove probation holds for individuals who had business in court." (Mike Frisch)
No Right To Seek Disqualification
The web page of the Pennsylvania disciplinary board reports:
On August 17, 2010, the Supreme Court of Pennsylvania decided a high-profile case involving an attempt by a pharmaceutical company to disqualify the private law firm hired by the Commonwealth to pursue a claim for damages for Medicaid and other program funds spent as a result of off-label marketing efforts by the company.
In the case of Commonwealth v. Janssen Pharmaceutica, Inc., No. 24 EAP 2009, the company had sought to disqualify the Texas law firm of Perrin Bailey, LLP, which represents several states in similar litigation. The company attacked the contingent fee contract between the firm and the Office of General Counsel on several theories, including:
- it restricted the ability of the state to enter into a nonmonetary settlement;
- it was an improper delegation of spending authority;
- it infringed on the General Assembly’s exclusive spending power; and,
- it violated the company’s due process rights by giving a party acting on behalf of the government a financial interest in the outcome.
In the majority opinion, written by Chief Justice Castille, the Court did not reach these issues. Rather, it decided the case under the terms of Section 103 of the Attorneys Act, 71 P.S. 732-103, which states that no party other than a Commonwealth agency has standing to challenge the authority of the legal representation of the agency. The Court described Janssen’s statutory and constitutional arguments as “cogent,” but concluded that the intent of the Legislature to deny private parties the right to challenge the representation of the Commonwealth was clear.
In a concurring opinion Justice Baer, joined by Justice McCaffery, agreed with the majority’s reasoning, but expressed concern about whether the issue might be moot.
Justice Saylor filed a dissent in which he expressed the view that the constitutional issues raised by Janssen were not subject to limitation by Section 103, and that its efforts to disqualify the firm should be determined by traditional standing analysis.
Trail Of E-Mail
The Indiana Supreme Court has imposed a 90 day suspension of an attorney who represented a client in, among other matters, a prenuptial agreement and the subsequent marriage dissolution proceeding. At the time of the dissolution proceeding, the attorney and the client's spouse engaged in an e-mail exchange that discussed the attorney's romantic interest in the spouse as well as the pending proceeding. When the client discovered the e-mails, he fired the attorney.
The court affirmed findings that the attorney had breached his duty of confidentiality and engaged in a conflict of interest.
The court also affirmed findings rejecting a claim that the attorney was following the client's directive to "work directly" with the spouse to bring the matter to resolution. The client denied so instructing the attorney. The court concluded that whatever the authority given by the client, the attorney had exceeded it.
A dissent would impose public reprimand. (Mike Frisch)