October 15, 2010
Something I Have Never Done Either; So Where's My New Car?
Headline of a news story I refuse to click on and read. Pastor gets car for not burning Quran
Ethics Charges Dismissed In Wisconsin
In two opinions linked here and here, the Wisconsin Supreme Court affirmed a referee's proposed dismissal on insufficient evidence of bar charges against a husband and wife charged in connection with an ethics complaint brought against a judge. The OLR had appealed a recommendation that charges in the husband's matter be dismissed.
The AP reports:
The wife was running for judicial office against the accused judge. The allegations related to an unsolicited letter written by the judge on behalf of a defendant who was awaiting sentencing. The husband brought the issue to the attention of the widow of a judge who had supported the wife's candidacy , who filed the judicial ethics based on a draft that the husband had provided.
From the opinion dismissing the case against the husband:
Although we disagree with the referee's interpretation of the rule, we nonetheless agree with the referee that Attorney...'s "cocktail party" comment did not constitute a violation of SCR 20:8.4(c).Attorney...'s statement to Mrs. Moser [the widow] did not itself contain a misrepresentation. For example, Attorney...did not tell Mrs. Moser that he had learned of the Schudson letter at a cocktail party or that Judge Schudson had telephoned Judge Clevert as well as wrote a letter.
What Attorney...did was to suggest that Mrs. Moser make a misrepresentation in the future if confronted with a particular situation. There is no evidence in the record, however, that (1) Mrs. Moser was ever confronted with the question of how she learned of the Schudson letter, and (2) that she ever told anyone that she had heard about the Schudson letter at a cocktail party. Had Mrs. Moser actually made the statement pursuant to Attorney...'s suggestion, we would be confronted by a different case.
This does not mean that we are, in effect, adopting the referee's interpretation that someone must be defrauded in order for there to be a violation of SCR 20:8.4(c). The concept of someone being defrauded includes the requirement that the hearer relied on a false statement and took action (or refrained from taking action) that led to the person incurring damage of some sort. The rule makes no reference to the impact of a misrepresentation on a hearer of the false statement.
The rule does, however, require that there be, at a minimum, a dishonest or deceitful statement or a misrepresentation. That did not occur in this case. Attorney...'s statement suggested that Mrs. Moser make a misrepresentation in the future, but it did not itself make a false statement of fact. Moreover, Mrs. Moser apparently did not follow through with Attorney...'s suggestion and she never made any false statement of fact about the source of her knowledge. Thus, we cannot find a violation of SCR 20:8.4(c) under the particular facts of this case. In addition, since we find that the OLR failed to establish a violation of any supreme court rule, we do not address Attorney...'s First Amendment argument.
Our application of the requirements of the rule, however, should not be interpreted to be an endorsement of Attorney...'s behavior. Suggesting that someone not tell the truth is never laudable. If Attorney...did not want Mrs. Moser to divulge his name, he could have simply asked her not to answer any question about the source of her knowledge of the Schudson letter. He should have advised her that if she chose to respond to a question about the source of her knowledge, she should reveal his identity.
The husband currently serves in the Wisconsin legislature. The wife currently serves on the Wisconsin Court of Appeals. (Mike Frisch)
A Criminal Case
If you are a law professor looking for a teaching example of the wrong way to practice criminal law, take a look at a decision issued today by the Kansas Supreme Court. The court imposed a two-year suspension of a defense attorney who was handling his first felony sexual solicitation case. The attorney had prior misdemeanor experience.
The client was charged with engaging in an online chat with a police officer posing as a 14 year old girl. An arrangement was made to meet in a Hardee's parking lot. The client showed up and was arrested and retained the attorney.
The client wanted to put on a false defense that the online chat was a joke initiated by his brother. He and his parents pressured the brother to cooperate in the false claim. In fact, the brother had been in Idaho at the time as evidenced by an arrest for DUI three days after the client's arrest. The brother also was in the military and preparing to deploy overseas.
The attorney accompanied the brother to the police to make the false statement. He told the brother that he was not his attorney, but would sit in. The police told the attorney that he could only sit in as the brother's counsel. Then, the police left the room.
A tape recorder was left behind and the attorney fiddled with (rewound) the tape. He did not know that he was also being video recorded.The police returned and allowed the attorney to sit in on the brother's statement.
The police confronted the brother, who confessed and was charged. The charges were dropped after he agreed to cooperate against the attorney and his own brother.
The attorney falsely denied that he had fiddled with the tape recorder until he was confronted with the video. He was charged with felony obstruction of justice and pled guilty to a misdemeanor attempted obstruction of official duties. The misconduct in the bar discipline case involved a conflict of interest in providing advice to the brother and his false statement to the police, which had falsely accused the brother.
The Disciplinary Administrator made alternative recommendations for discipline: disbarment if the attorney was found to have knowingly participated in presenting the brother's false evidence; if not, indefinite suspension. The hearing panel had proposed a 30 day suspension. (Mike Frisch)
Plagiarizing Attorney Reprimanded
The Iowa Supreme Court has imposed a public reprimand of an attorney who was found to have plagiarized in two briefs filed in a bankruptcy matter. the court agreed with its Disciplinary Board that the attorney had not charged an excessive fee, but rejected the proposed sanction of a six-month suspension.
The bankruptcy judge had found that the briefs in question were of "unusually high quality" and directed the attorney to certify that he was the author. The quality came from a law review article from which the attorney had lifted 17 pages virtually verbatim. In response to the order, the attorney admitted that he had exceeded permissible use of a source. The attorney notified the client and Bar of the issue.
The court noted that a plagiarism finding can be a "scarlet letter" for an attorney and indicated that sanctions would not be appropriate for errors in citations. Here, the reproduction of the law review article was more than a citation lapse. (Mike Frisch)
October 14, 2010
No Justice, No Peace
The Nevada Supreme Court has held that a candidate for justice of the peace is ineligible in light of the requirement of five years of practice:
In this appeal, we are asked to define the eligibility requirements set forth in NRS 4.010(2)(a) for justice of the peace. Based on the statute’s plain and unambiguous language, we conclude that, before being elected or appointed to a justice of the peace position, an attorney must be licensed to practice law for a minimum of five calendar years, which are typically 365-day years, from the date of his or her admission. After expedited briefing and argument, we summarily affirmed the district court’s order granting the petition to remove the candidate for justice of the peace from the ballot, as she did not meet the minimum five-year requirement. This opinion sets forth the full reasoning that underlies our disposition.
The candidate was ineligible because:
To reach the required five years using the approach [the candidate] advocates, 2006 must be counted as a full year of licensure and admission, even though [she] was only admitted in October of that year, and therefore was licensed for only three months in 2006. Under this scenario, 2006 actually is added to 2007, 2008, and 2009 to reach four years. Finally, this year—2010—would likewise have to be treated as a full year of licensure and admission, even though the election is scheduled for November of this year.
Two justices dissented and would address constitutional and statutory claims raised in the case:
...the majority glosses over the immense disparity of required qualifications created by NRS 4.010(2)(a) for urban and rural justices of the peace. In most urban areas, a candidate for justice of the peace must be an attorney, licensed and admitted to practice law for not less than five years, while elsewhere, a candidate need only have a high school diploma or “its equivalent.” NRS 4.010(2). However, NRS 4.010(2)(a) and (b) do not distinguish between all urban and rural communities. Although NRS 4.010(2)(a) requires justices of the peace to be attorneys with five years of experience in Clark County for townships with populations above 100,000, NRS 4.010(2)(b) only requires justices of the peace to be attorneys with five years of experience in Washoe County for townships with populations above 250,000. Therefore, a justice of the peace in the urban area of Sparks Township does not have to be an attorney. What is the rational basis for this township population disparity between Clark and Washoe counties? In addition, it has long been common practice in Clark County for justices of the peace from small townships, who are not attorneys, to sit and hear court calendars in Nevada’s largest township, Las Vegas Justice Court. When comparing and considering these different requirements, [The candidate's] equal protection arguments become far more compelling and demonstrate that a violation of her equal protection rights has occurred.
Further, under the scheme created by NRS 4.010(2)(a), in this state’s capital, Carson City, a person with business before the justice court could have his or her case decided by a justice of the peace with only a high school diploma or “its equivalent.” In stark contrast, a litigant with the same business in Las Vegas or Reno justice courts could not have his or her case heard by an individual who graduated from one of this country’s most prestigious colleges, attended one of the nation’s most highly regarded law schools, and worked as an associate at a major law firm or as a staff attorney for this court for four years, as that person would not have the required five years of experience. This situation is shameful and cannot possibly further any legitimate interests of this state.
I would further note that we recently concluded that the censure of an elected public officer by the Nevada Commission on Ethics for alleged voting infractions violated the First Amendment. See Carrigan v. Commission on Ethics, 126 Nev. ___, 236 P.3d 616 (2010). In Carrigan, we cited Citizens United v. Federal Election Commission, 558 U.S. ___, 130 S. Ct. 876 (2010), for the proposition that NRS 281A.420(2)(c) must be declared unconstitutional because the statute was not narrowly tailored to meet a compelling government interest. We reviewed this statute under a strict scrutiny analysis.
As we acknowledged in Nevada Judges Ass’n v. Lau, “‘[t]he right to hold public office is one of the valuable rights of citizenship. The exercise of this right should not be declared prohibited or curtailed except by plain provisions of the law. Ambiguities are to be resolved in favor of eligibility to office.’” 112 Nev. 51, 55, 910 P.2d 898, 901 (1996) (quoting Gilbert v. Breithaupt, 60 Nev. 162, 165, 104 P.2d 183, 184 (1940)). Therefore, NRS 4.010(2) must be reviewed under a strict scrutiny analysis. Thus, I would strike down NRS 4.010(2)(a) as violating [the candidate's] equal protection rights by creating an absurd distinction that cannot withstand even the lowest level of judicial scrutiny.
Attorney Resigns, Over A Million Dollars Gone
The New York Appellate Division for the First Judicial Department has accepted the resignation of an attorney who was the subject of a client complaint alleging of misappropriation of around $1.4 million of entrusted funds.
The court reviwed the recommendation of the Departmental Disciplinary Committee:
The Committee states that respondent's affidavit of resignation complies with the requirements under section 603.11 in that respondent acknowledges that there is a pending disciplinary investigation against her based on allegations of professional misconduct, that if charges were brought based upon the misconduct under investigation, she could not successfully defend herself on the merits, that she has submitted her resignation freely, voluntarily and without coercion or duress, and that she is fully aware of the implications of submitting her resignation, to wit, that her name will be stricken from the roll of attorneys. In that affidavit, respondent avers that she was retained by [the client] to create a trust; that she became a co-trustee, and that between 1998 and 2009 she intentionally misappropriated approximately $1,400,000 of her client's funds. Respondent disclosed her misconduct to [the client] in early October 2009 after there was some inquiry about unauthorized transactions and shortly thereafter, she signed a Confession of Judgment for $1,400,000. Respondent further states that there is a continuing audit in progress to determine the exact amount of the misappropriations; and that she has not misappropriated any other client funds and is not currently holding any other client or third party funds in any trust or bank account in her name or under her control except advanced legal fees to be taken when earned.
As a result of the resignation, the attorney is struck from the roll of attorneys. (Mike Frisch)
October 13, 2010
At These Prices, Buy Two
Those of you who want your bar discipline to be stylish may find what you are looking for at the web store of the National Organization of Bar Counsel. Woven, T., polos and knit shirts are available along with caps and a blanket. And that's not all:
All apparel items are decorated with logo placed on left chest.
NOBC logo is embroidered.
Proceeds benefit NOBC programs. (Mike Frisch)
Dean Speeches and Metaphors of Meaning
Posted by Jeff Lipshaw
I'll confess to two of my secret vices: playing Bubble Breaker on my iPhone on the T, and listening to lectures from The Teaching Company in my car. I'm up to lecture 30 (of 36) in "Philosophy, Religion and the Meaning of Life" by Professor Francis Ambrosio at Georgetown, which means that I've spent something like fifteen hours in this course alone proving what a geek I really am. As I have provided a link to the page where you can order the series, I'm sure Professor Ambrosio won't mind my quoting the web site promo on the competing metaphors of Hero and Saint that are the continuing theme of the lectures. Each of these metaphors reflects how the prototype of the metaphor finds meaning in life:
The Hero: Reflecting the worldview of secular, Humanist philosophy, the Hero's universe is shaped by impersonal forces of necessity and fate, indifferent to human desires. The Hero realizes the goal of self-fulfillment and self-mastery through achievement and the overcoming of obstacles to fulfill his or her fate wholly and perfectly. The Hero's identity emerges in contexts ranging from the lives of Socrates and Marcus Aurelius to Nietzsche's Zarathustra and the Existentialist vision of Jean-Paul Sartre.
The Saint: The Saint affirms a contrasting sense of life, identifying selfhood primarily in relation to others, human or divine; a covenant bond of care, concern, and responsibility whose purpose is love itself. You find the Saint's identity in figures such as Abraham and Jesus, and later in the philosophy of Søren Kierkegaard and the novels of Dostoevsky.
That is a geeky prelude to an observation I want to make about a moving moment in a lovely talk our new dean, Camille Nelson (left), gave to our alumni, trustees, and faculty in the atrium of our building last evening at her "Welcome Reception." Dean Nelson described her own history; she is the child of Jamaicans who emigrated to Toronto in order that their children might have the benefit of educational opportunities there; she emigrated to the U.S. with her family for similar reasons. Now, if you haven't seen our building, it's pretty impressive. And Dean Nelson described what it was like for her 70 year old father and her daughter to walk together, holding hands, in her office. I am getting goosebumps again writing this. For those of us who grew up in moderate or lesser means, whose parents and grandparents were immigrants and laborers, who were the first in their families' histories to go to college (and who, on top of it, weren't black women), to have achieved the corner office, to be honored like this, to be entrusted with leadership, the moment is infused with meaning.
Yet were we to consider whether Hero or Saint is a more apt metaphor for the meaning of our own lives (recognizing that few of us are Mother Teresa or Superman/Wonder Woman; i.e., it's a metaphor), which would we choose? Dean Nelson focused in her talk on Suffolk's mission (and history) of access and opportunity to people like us (to quote Steve Goodman: "the sons of Pullman porters and the sons of engineers), and the congruence of the mission to her own story. I thought that evoked the metaphor of the Saint, as Professor Ambrosio discusses in the context of Alyosha and Father Zosima from The Brothers Karamazov, "all are responsible to all for everything." I confess that the Hero is the more dominant metaphor when I consider my own life. This is not Hero as courage, or even Hero as laudatory, but Hero as Professor Ambrosio describes: one who "realizes the goal of self-fulfillment and self-mastery through achievement and the overcoming of obstacles to fulfill his or her fate wholly and perfectly." Even when I do "saintly" things, I confess that I have a sense of attempting self-mastery, of overcoming obstacles even to do saintly things wholly and perfectly. (I acknowledge that may also be symptomatic of a need for an SSRI - that's Selective Serotonin Reuptake Inhibitor, not Social Science Research Network.)
I'm pretty sure I got goosebumps because my imposition of the metaphor of Hero over Dean Nelson's story infused it with meaning for me (whether she would agree with it or not). I suspect others in the crowd may have gotten goosebumps by their imposition of the metaphor of Saint over the same story. What I like about Professor Ambrosio's approach is his ultimate take on attempts to see the metaphor as anything more than metaphor. In other words, we are all Heroes and we are all Saints, or we are secular saints. (See, e.g., the rescue of the Chilean miners this morning, and tell me if you don't find meaning via both metaphors.) Why and how is a mystery, and the commitment to a meaningful life is a commitment to living the questions that mystery presents.
Judge Must Pass
Absent a request, a family court judge may not write a letter recommending that a juvenile be permitted to play high school football, according to a recent opinion of the South Carolina Advisory Committee on Standards of Judicial Conduct:
Canon 2 states a judge shall avoid impropriety or the appearance of impropriety at all times. Rule 501, SCACR. Canon 2B states that a judge shall not lend the prestige of judicial office to advance the private interest of others. The Commentary to that section notes that a judge can provide a letter of recommendation based on personal knowledge, but states that a "judge must not initiate communication of information to a sentencing judge or a probation or corrections officer, but may provide such persons information for the record in response to a formal request." The Commentary seems to distinguish between writing a letter for recommendation for college or a job, from transmitting information in other situations.
In this matter, while the judge is not being asked to provide information to the sentencing judge or probation officer, the judge is being asked to communicate information about a juvenile that appeared before the judge to the high school football league, and whether the juvenile should be eligible to play. Providing such information without a formal request, such as a motion by the juvenile or his attorney, could create the appearance that the judge is lending the prestige of judicial office to the juvenile. However, if a formal request is made by motion or otherwise, then the judge could make such decision as is in the best interest of the juvenile.
October 12, 2010
Post Party Accident Leads To Sanction
The New Jersey Disciplinary Review Board has imposed an admonition of an attorney found to have committed a criminal act that adversely reflected on his honesty, trustworthiness or fitness as a lawyer.
The misconduct took place after a holiday party at his place of employment. He consumed wine and rear-ended another vehicle on his way home. He left the scene and appeareed to be intoxicated when the police came to his home. He pled guilty to driving while intoxicated and leaving the scene of an accident.
The board noted that "the attorney discipline system does not address driving-while-intoxicated violations, standing alone. Nevertheless, [the attorney] committed two other offenses." The accident did not result in severe injuries and the attorney has no record of discipline in over 40 years. (Mike Frisch)
After Disbarment, Clients Remain
The New York Appellate Division for the First Judicial Department has disbarred an attorney convicted of the theft of escrowed settlement proceeds. The court also appointed an attorney to clean up the mess left behind:
The [Departmental Disciplinary] Committee advises that beginning in early 2009, after it sought respondent's interim suspension, and continuing through the fall of 2009, it has received a "steady stream of complaints" from respondent's clients alleging that, not only did he fail to disburse their settlement funds to them but that he completely stopped communicating with them. In March/April 2009, the Committee was contacted by Jordan Hecht, Esq., from whom respondent had subleased an office in the Hecht law firm's suite, reporting that respondent's clients were coming to the office to get their files but he could not release them because the files did not belong to him. By June 2009, Mr. Hecht informed the Committee that respondent had removed his files from the office but left no instructions for contacting him.
During this same time period (March 2009), the District Attorney's Office endeavored to assist the complainants in obtaining their files so they could prove respondent's thefts, and aided them in filing claims with the Lawyers' Fund for Client Protection. According to an affidavit of ADA Keith, in September 2009, Judge Carruthers ordered respondent to produce all client files to the District Attorney's Office for return to his former clients, but respondent produced only 15 files. On March 19, 2010, Judge Carruthers ordered respondent to produce an inventory of his files by March 30, 2010, but he has not yet complied. ADA Keith further states that Archive Systems, Inc., has a storage facility in New Jersey at which respondent has placed dozens of boxes of files, yet respondent has not paid for the storage space and Archive's collection department is seeking payment. Based upon her conversation with the representative at Archive, ADA Keith states that "it seems clear that it will take a court appointed receiver or some other mechanism of the courts to get access to the client files locked in the New Jersey storage facility." In addition, respondent's attorney in the criminal proceeding informed ADA Keith that respondent handed over to a successor law firm the few cases and client files he considered viable, ongoing matters and it is unclear if the affected clients were given notice of such transfer. Ms. Keith hopes that a receiver may be able to obtain the proper return of the complainants' property (their files) which they need for a restitution hearing.
The Committee adds that respondent's files in the storage facility are in danger of being destroyed and respondent's conduct has, in effect, obstructed the remaining clients from accessing their own files. Staff counsel notes that it is in respondent's own interest not to return said files so that his clients cannot prove their losses, thereby reducing the amount of restitution ordered by the court as well as the reimbursement he will owe to the Lawyers' Fund.
Accordingly, the Committee's petition to appoint an attorney pursuant 22 NYCRR 603.13(g) to inventory the client files of respondent...and to take such action as seems indicated to protect the interests of his clients should be granted.
Magistrate's Greatest Hits
A recent opinion from the South Carolina Judicial Ethics Adfvisory Committee:
A newly appointed Associate Municipal Judge is concerned about the impact of two songs released by the judge before his appointment. Over fifteen years ago, the judge released two songs through a record company that were re-released on CDs in 2000. The songs are also available for download on several websites. The judge has never received any money or royalties for the sale or downloads of the songs. One song addresses police officers who have been killed in the line of duty. The judge did pledge that if any royalties are ever received, the royalties will be donated to InVestUSA, an organization that purchases bulletproof vests for agencies that cannot afford to purchase them. The other song addresses drunk driving. The judge pledged that any royalties received from this song would be donated to Mothers Against Drunk Driving (MADD). The judge inquires into the propriety of serving as Associate Municipal Judge under these circumstances.
The judge may serve as Associate Municipal Judge because the songs released were prior to his appointment as judge.
Canon 4 governs a judge's extra judicial activities, but notes that a judge cannot be completely isolated from the community, nor can there be complete separation of a judge from extra-judicial activities. Commentary, Canon 4. At the time the songs were recorded and released, the judge had not yet been appointed to the bench. Thus, the judge, at that time, was not limited in his activities or subject to Canon 4. Additionally, since the events happened before the judge's ascension to the bench, there is no appearance of impropriety or impartiality that would violate Canon 2. Since the judge was not a member of the judiciary at that time, there was certainly no prohibition on his activities in releasing the songs or pledging the royalties, and there is no violation of the Canons by the judge's service on the bench.
No Lesser Sanction
The South Carolina Supreme Court declined to impose a lesser or different sanction than disbarment after an attorney had been disciplined in Georgia:
Rule 4-104 of the Rules of the State Bar of Georgia clearly provides that a lawyer may be removed from the practice of law in Georgia if he suffers from a drug addiction that impairs his competency as a lawyer. Pursuant to Rules 4-110(f) and 4-227, a lawyer may voluntarily submit to such discipline by filing a Petition for Voluntary Surrender of License, which is the equivalent of disbarment.
Similarly, Rule 28(b)(6) of the South Carolina Rules for Lawyer Disciplinary Enforcement states that if this Court concludes a lawyer suffers from a physical or mental condition that adversely affects the lawyer's ability to practice law, it may enter any order appropriate to the circumstances, the nature of the incapacity and probable length of the period of incapacity. In addition, after receipt of an examination report of an expert, ODC and the lawyer may agree on proposed findings of fact, conclusions, and a recommended disposition. Rule 28(e), RLDE. The stipulated disposition must be submitted to the hearing panel for a recommendation to the Court that it be approved or rejected. Id. The final decision on the recommendation is made by the Court. Id. If the Court accepts the stipulated disposition, an order is entered in accordance with its terms. Id. Accordingly, a lawyer in South Carolina may also consent to disbarment based on a physical or mental condition that adversely affects his ability to practice law.
Based on the language of the applicable Georgia and South Carolina rules, we agree with ODC that respondent cannot rely on Rule 29(d)(5) because while a transfer to incapacity inactive status, or an equivalent disposition, is available under both Rule 4-104 and Rule 28, such disposition was not imposed in this case. Instead, respondent consented to a form of discipline under the Georgia rule that is equivalent to disbarment, an option that is also available under the South Carolina rule. Moreover, respondent has failed to otherwise demonstrate that imposition of the same discipline in South Carolina is not appropriate. We therefore find disbarment is the appropriate sanction to impose as reciprocal discipline in this matter. Respondent is hereby disbarred from the practice of law in this state retroactive to June 28, 2010, the date respondent was disbarred from the practice of law in Georgia.
October 11, 2010
Bank Error Leads To Bar Charges
The North Carolina State Bar has filed a complaint alleging that $81,570.99 was transferred by wire into the bank account of an attorney from the Asheville Savings Bank. According to the complaint, the funds were intended for another attorney's escrow account. The transfer took place in 2004 but was not discovered until 2008. By then, the complaint contends, most of the money was gone. (Mike Frisch)
Plotting Wall Street Bankers on the Saddam Hussein - Salem Witch Trials Continuum
Posted by Jeff Lipshaw
Imagine how difficult public debate in these partisan times can be for someone like me whose motto is "extremism in the pursuit of moderation is no vice." I haven't seen Inside Job, but I have read the reviews, good and bad, and I think I get the point. I confess to never having seen a Michael Moore "documentary," A Civil Action, or Erin Brockovitch. But this is from a reviewer, Keith Uhlich in TimeOut New York, who liked it, and it doesn't inspire me to fork over the twelve bucks: "Ferguson uses innumerable tricks of the slick-doc trade (pop-music montages; gotcha smash cuts; celebrity narration—in this case, Matt Damon). Even the title is a loaded, tragedy-invoking provocation." Nor am I enticed by the appeal to post-partisanship in the pursuit of outrage, as Uhlich describes it: "Ferguson’s trying to move beyond the political dichotomies that divide us into bellowing factions and show how rampant greed screws us all."
Since I'm about to fly off to Minneapolis to give a milk-toasty response (see above motto) to the question "Did Capitalism Fail?" (my answer: Capitalism Didn't Fail, But the Metaphors Got a "C"), I decided I ought to think for a little bit this morning whether I was wrong, and director Ferguson was right. I thought that particularly because my friend Frank Pasquale at Concurring Opinions also liked the movie a lot, and that means I have to take it seriously, if for no other reason that Frank has taught me so much on other issues. As I expected, Frank gets past the slick doc stuff (I cringe at the idea of watching the 60 Minutes-style "did you stop beating your wife?" questions) and suggests there are four arguments being made: (1) Wall Street compensation is loopy; (2) the Obama administration hasn't done anything to create reform, instead relying on the same bankers as the Bush administration; (3) the Obama administration is as taken with the revolving door cabal of "Goldman Sach alums and fail-upward regulators" in which it is no longer possible to determine who captured whom; and (4) the U.S. has turned into a financial (rather than mechanical, civil, bio, or electrical) engineering power bound to lose out to China and others in the long run. I also think Frank's review is honest in describing its own position (see contra my motto above): "I’ll be looking beyond the core of the economics profession for a compelling account of a fair and just society. When it comes to finance, progressives should also realize they have few friends in the current administration."
I realize, however, that my milk-toasty approach hasn't quite failed me (I can't speak for others). My essay is about the relationship between causation, as scientists would explore it, and meaning, as the rest of us would derive it. The approach of Inside Job is less an explanation of what happened than a narrative of its meaning. I'm still agnostic on the question whether "rampant greed screws us all" mainly because I like my MacBook and my iPhone, and I think they are the products of rampant greed. On the other hand, I recently turned down the opportunity to invest in a derivative akin to a synthetic CDO in part because the idea of it bugged me, even though I had no good response to my broker why it was any worse than investing in the underlying market.* As I note in the essay, one way to interpret events for their meaning is to decide whether misfortune is the result of gods or demons, and sometimes it is. Sometimes, however, it is "stuff happens." (I decided I wanted this post printable someday in a family newspaper.) We are, however, imbued with a tendency to teleology, that is, the seeing of purpose (even if purpose is no more than "function") when things like solar systems, automobiles, and macro-economies seem to work with a predictability regularity. I like graphs, however, and I came up with this one as I was walking to the T this morning:
As you can see, I had no problem placing the Salem "witches," Saddam Hussein, and Andrew Fastow, one of the architects of the Enron scam, on the continuum. In the spirit of the movie, however, I wasn't quite sure where to place the rest of these names (or the myriad others - like God, the boogie-man, the Trilateral Commission, or the Bohemian Grove - that occurred to me).
My point is not that there are never culpable demons, but that sometimes those who we think are culpable demons are not. I have not yet been persuaded by the level of public discourse (Ann Coulter? Sarah Palin? Michael Moore? Glenn Beck? Jon Stewart? Stephen Colbert?) that we can say we've reached a level of rationality such that witch trials were then, and now is now. What is comforting is that at least I can have a reasoned and civil discussion with Frank, without the sound bites, even if we don't agree!
*UPDATE: Actually, I did come up with a reason or rationalization but it's almost as complicated as the investment vehicle, so I won't bother explaining it.
Free Soviet Jewelry
The cutting edge issue whether a judicial clerk can host a jewelry sale or conduct a jewerly business is addressed in a recent judicial ethics opinion from South Carolina. The Advisory Committee on Standards of Judicial Conduct opines:
Rule 506, entitled Code of Conduct for Staff Attorneys and Law Clerks, governs this situation. Specifically, Canon 5(C) states that a law clerk should "refrain from financial and business dealings that tend to detract from the dignity of [her] office, interfere with the proper performance of [her] official duties, exploit [her] official position, or involve [her] in frequent transactions with lawyers or persons likely to come before the court [she] serves."
Here, the judicial law clerk's intended activity in hosting a trunk show or selling jewelry does not, in and of itself, detract from the dignity of the office. However, the law clerk must be careful in ensuring that the time commitment involved will not interfere with her official duties. In addition, the law clerk must not reference her position as a judicial law clerk in the invitations to the party nor should she publicize the event while acting in her official capacity. Finally, as long as the lawyers who appear before the court do not make frequent purchases, the law clerk will not be engaged in frequent transactions with lawyers or persons likely to come before the court she serves.
This Committee offers no opinion as to whether the judge, as the law clerk's employer, should or should not give permission for the law clerk to engage in other employment.
Ohio Oral Arguments On Line
The (outstanding and user-friendly) web page of the Ohio Supreme Court now features video access to oral arguments before the court. Linked here is a case argued in July, 2010 involving an attorney found to have neglected two client matters.
The court imposed the recommended sanction of a one-year suspension with six months stayed on conditions of no further misconduct. The attorney must also submit to mental health evaluation and comply with any treatment deemed appropriate by the Bar's counseling program. If the conditions are not followed, the full suspension will be imposed.
The court rejected an assertion of "generalized stress" as a mitigating factor absent supporting expert testimony.
The matter was before the court on the exceptions of the attorney. However, as in Casablanca, the conversation is a trifle one-sided. Timothy Marcovy appears and argues for the Cleveland Metropolitan Bar Association. The attorney did not appear.
The court excused the failure as the attorney had filed a motion that the court received after the argument. Nonetheless, argument on behalf of the attorney was deemed waived. (Mike Frisch)
Aggavation, Mitigation And A Proposal Not Adopted
The Georgia Supreme Court adopted a recommended two year suspension of an attorney who plead guilty to a count of felony residential mortgage fraud. The attorney had only been in practice for 2 1/2 years at the time of the misconduct.
The court did not treat the attorney's continuing profession of innocence as a aggravating factor but rejected delay not attributable to the Bar as a mitigating factor. The attorney's practice had been ruined as a result of the spread of the information over the internet. The court did not follow the proposal that the attorney be permitted to work as a legal aid paralegal and reduce the period of the suspension by such employment. (Mike Frisch)