Friday, February 12, 2010
The Louisiana Supreme Court accepted the recommendation of its Disciplinary Board and permanently disbarred a former assistant city attorney convicted of felony malfeasance in office. He had taken a $500 fee to represent a private client. The court concluded that permanent disbarment was appropriate where an attorney "fraudulently used his position as an Assistant City Attorney to dismiss DWI charges against his own client.
In the criminal case, he was sentenced to a suspended term of eighteen months in prison. (Mike Frisch)
Thursday, February 11, 2010
A bitterly divided Wisconsin Supreme Court today issued aper curiam opinion that dealt with a recusal motion directed at a fellow justice in a criminal appeal in the following manner:
The members of the court disagree as to the disposition of petitioner Aaron Antonio Allen's motions for the recusal of Justice Michael J. Gableman citing the Fourteenth Amendment of the United States Constitution; Article I, Sections 1 and 8 of the Wisconsin Constitution; and Wis. Stat. § 757.19(2)(g).
On February 4, 2010, Justice Michael J. Gableman informed the members of the court that he was withdrawing from participation in the court's consideration of Allen's recusal motions and was withdrawing his separate written opinion. Only six justices are therefore participating.
Three justices, Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, and Justice N. Patrick Crooks, would order briefs and oral argument, as the parties have requested.
Three justices, Justice David T. Prosser, Justice Patience Drake Roggensack, and Justice Annette Kingsland Ziegler, would issue an order denying the motions.
Chief Justice Abrahamson and Justices Bradley and Crooks write in support of their proposed disposition.
Justice Roggensack, joined by Justices Prosser and Ziegler, writes in support of their proposed disposition.
Individual writings by Justices Crooks, Prosser, and Ziegler are also filed.
Because the members of the court disagree as to the disposition of Allen's motions as set forth above, the motions are not granted. No four justices have agreed to grant the motions.
The views of the three justices who would order briefing suggests that the other justices have made "false accusations and stretch, misconstrue, or omit relevant law. Even with such an effort, the writings are inconsistent and incoherent."
The opinions are worth a close read. Another excerpt from the per curiam opinion:
Recusal motions against a colleague and proposed rules about recusal pose significant personal and legal difficulties for all the justices. These difficulties are exacerbated in the present case by the Judicial Commission's pending action against Justice Gableman for violation of the Code of Judicial Conduct. The allegations in that matter share some factual basis with Allen's allegations for disqualification in the present order.
Words cannot and do not fully capture our feelings of disquiet when we are asked to sit in judgment of a peer, knowing that we have worked with that justice and will continue to work with that justice for years to come. We shall see the justice at every oral argument, court opinion decision conference, petition for review conference, ceremony to admit lawyers, rules hearing, open administrative conference, judicial conference, educational seminar, and other court and non-court functions.
Despite the disquiet that a motion challenging a justice's disqualification causes, this court has stated that when a "movant has questioned the integrity of a justice of this court and hence the integrity of a decision of the court . . . [i]t behooves the court in the defense of its own legitimacy and of its integrity to consider such claims."
Additional information concerning the underlying recusal motion with links to the pleadings may be found in this post on the Henak Law Office S. C. web page. This post from Pundit Nation has a link to a television campaign ad on behalf of now-Justice Gableman.
Clarification: The per curiam order summarized on the court's web page is not a part of the separate opinions of the justices that are quoted above. (Mike Frisch)
The Supreme Court of Washington has disbarred an attorney as a result of the following:
This case involves an attorney who, when faced with revocation of his business license by the Department of Revenue (DOR), notified DOR he was ceasing his business but instead re-formed his practice from a "PLLC"to a "Inc., PS," and continued to operate. The attorney failed to notify DOR of his new status and removed the revocation order posted at his office. The hearing officer and the Washington State Bar Association's (WSBA) Disciplinary Board (Board) concluded that this conduct was dishonest, illegal, deceitful, and a misrepresentation of his intention to circumvent his tax liabilities and recommended we disbar [him]. We adopt the Board's recommendation.
Justice Sanders dissents, concluding that the majority cast the misconduct in "too sinister a light" and would suspend rather than disbar. (Mike Frisch)
The Law Offices of Silverman & Taylor was convicted in a non-jury trial of four counts of offering a false instrument for filing. The offices and an individual defendant were alleged to have submitted falsely inflated bills for treatment in no-fault insurance claims. The documents were retainer agreements filed pursuant to New York law that had falsely represented the referral source. The Appellate Division had reversed the false filing charges on grounds that there was no reliance by the Office of Court Administration and thus no intent to defraud.
The New York Court of Appeals reversed the Appellate Division, concluding that the element of intent referred to the state of mind of the defendant. The conviction on the false filing counts was reinstated and the matter remitted to the Appellate Division for further proceedings on the appeal. (Mike Frisch)
A Quick Note on the Non-Snowmageddon in Boston and the General Uselessness of Behavioral Psychology in Actually Making Decisions
Posted by Jeff Lipshaw
So, framed by knowledge of the forty inches or so of snow that fell on Washington, D.C., and fortified by optimism bias on the accuracy of weather models, everybody in Boston, including my school, shut down yesterday (most having made the decision on Tuesday night) in anticipation of the one or two inches of snow that actually fell (this might knock out Atlanta but here you aren't even required to shovel that much). Nevertheless, what may well have been a good decision ex ante, immediately turned ex post, by means of hindsight bias, at least in the eyes of my Starbucks barista, who this morning said "somebody ought to be fined for all the wasted money!"
Now here's the thing. Knowing (and indeed accepting) that all of those behavioral psychology effects are observable objective reality, will understanding them help make a better decision this coming Tuesday when we are supposed to be getting another storm? Or will it simply contribute to another frame, in which nobody wants to make the same mistake they did last time? In short, to quibble with somebody who I won't name but is a masterful cognitive scientist, this is why the only antinomy/dichotomy I cannot give up is the one between the subjective and the objective.
Posted, written, directed, produced by, and starring, Jeff Lipshaw
I hope you have the point. I have decided that the article I've been working on (February is the hardest month, isn't it?) has, sometime in the last several days, passed not only the point of minimal coherence, but is indeed ready to leave the womb, sink or swim, fend for itself. I am hoping it takes care of me in my old age. Seriously, folks (ta ta boom), The Venn Diagram of Business Lawyering Judgments: Toward a Theory of Practical Metadisciplinarity is up on SSRN (in the spirit of "tomorrow's research today, not completely complete, but getting there, subject to post-production), now that I've decided what to leave on the cutting room floor. It is the basis of the last part of my book-to-be (in utero), Lawyering and the Mystery of Judgment.
If you get the idea that metaphors have something to do with the point, you win the kewpie doll. What I've tried to do is exploit what is my niche - bridging the real world and the academy - and it is recursive in exactly the way I tend to think of the world: how do we make judgments that bridge or fall between disciplines? Those are interdisciplinary judgments, but is there a skill that focuses on those kinds of judgments, meaning that we are dealing with an even higher order concept, namely metadisciplinarity? Which academic department grants a Ph.D. in that? (The fact that TypePad has just put a dotted red line under metadisciplinarity makes me hopeful I've coined a term!) What I have tried to do is spice the theory with many real world examples, admittedly anecdotal, but also, I think, typical. I will look forward to comments, because I have tried to be provocative, especially with regard to the pitfalls of "thinking like a lawyer", and the education that takes us there.
The abstract follows the fold.
February 11, 2010 in Abstracts Highlights - Academic Articles on the Legal Profession, Comparative Professions, General Counsel, Law & Business, Law & Society, Lipshaw, Straddling the Fence, The Practice | Permalink | Comments (0) | TrackBack (0)
Wednesday, February 10, 2010
In a medical malpractice action, the plaintiff must establish the existence of a doctor-patient relationship with the defendant physician, which the Oklahoma Supreme Court held had not been established when the treating doctor consulted with and relied on a second (sued) doctor. The court concluded:
A medical malpractice action is one of negligence wherein the duty is born from a contractual relationship. In a medical malpractice action, the plaintiff must prove a physician-patient relationship in order to establish a duty owed by the defendant. A telephone conversation between a non-treating physician and the treating physician concerning the patient, even when the treating physician relies on the non-treating physician's opinion, without more, is insufficient to establish a physician-patient relationship. Based on the record before us, we conclude that Dr. Schlinke did not agree to or undertake to treat Crawford or Shelby and did not form a physician-patient relationship with the plaintiffs as a matter of law.
The court reversed the court of appeals and concluded that the district court had properly granted summary judgment in favor of the non-treating physician. (Mike Frisch)
In an appeal of a decision in litigation between a matrimonial client and her former counsel, the New York Appellate Division for the Second Judicial Department held that the Supreme Court had committed error in several respects. One aspect of the case involves claims that much of the work had been performed by a disbarred lawyer:
...the plaintiff alleged that the disbarred attorney was closely involved in her case, and reassured her that he was working on her appeal from the matrimonial order. The plaintiff alleged that the disbarred attorney not only had contact with her, but also dealt with the husband's attorney and with the attorney for the children who had been appointed by the court. She claimed that the defendant seemed unfamiliar with her case, consulted with the disbarred attorney, and sought advice from the disbarred attorney when it was necessary to appear in court. The time records which the plaintiff submitted on her cross motion indicated that the defendant intended to bill her for conferring or meeting with the disbarred attorney on several occasions, that the disbarred attorney drafted memos and notes and that, on one occasion, the disbarred attorney accompanied the defendant to court. The plaintiff alleged in her affidavit that, while in court, the disbarred attorney consulted with her and the defendant "on how to handle whatever was in front of the court at that time."
Based upon the plaintiff's allegations, it appears that the disbarred attorney was engaged in the practice of law. A disbarred attorney may not engage in the practice of law, and an attorney may be guilty of professional misconduct where he intentionally aids a disbarred attorney to continue to practice law. Further, the plaintiff alleged that the defendant knew that this individual was disbarred, yet intentionally failed to reveal this information. Moreover, the orders related to this individual's suspension and disbarment involve sustained charges of lying to clients and neglecting their cases. By entrusting the plaintiff's case to this individual to the extent alleged by the plaintiff, the defendant failed diligently to handle her case. Thus, the plaintiff met her burden of establishing, as a matter of law, that she would have been justified in discharging the defendant for cause.
In response to these allegations, the defendant merely asserted that the disbarred attorney's involvement in the plaintiff's case had no bearing on the issue of counsel fees since the plaintiff received a "phenomenal result," and that the Grievance Committee for the Tenth Judicial District "took no action with respect to [these allegations]." The defendant, however, never attempted to raise a triable issue of fact as to the level of this individual's involvement in the plaintiff's case, and never claimed that he was unaware of this person's status as a disbarred attorney. Although, on this appeal, the defendant raises a number of allegations in this regard, including that the disbarred attorney was only minimally involved in the plaintiff's case, these allegations are dehors the record. Accordingly, in response to the plaintiff's prima facie showing with respect to the defendant's lack of entitlement to retain counsel fees that she already paid, the defendant failed to raise a triable issue of fact.(citations omitted)
The court dismissed the appeal of the defendant attorney but declined to award sanctions to the plaintiff. The underlying matrimonial case had resulted in a settlement. (Mike Frisch)
The Pennsylvania Supreme Court imposed a year and a day suspension in a disciplinary matter. The court followed the recommendation of its Disciplinary Board. The board had rejected the proposed sanction of a hearing committee for a six-month stayed suspension and twelve months probation with conditions.
The attorney had been informally admonished for neglect-type violations in 2004 and 2006. He agreed to handle a claim of employer retaliation and received a $3,000 fee. He improperly treated the fee as his own on receipt, although the board found that there was "no dispute" the client received services that would have exceeded the full retainer on an hourly basis. The attorney filed the complaint and two amended complaints, in federal court. The case was proceeding when the attorney was transferred to inactive status for failure to complete CLE obligations.
The attorney then disappeared. The client went to his office looking for him and found a note in his file, which read in part: "I have committed extreme neglect in the handling of [the client's] case." The client was able to secure a continuance and new counsel but eventually lost the case.
The attorney had a history of substance abuse but failed to establish his recovery or that the abuse caused the misconduct. Thus, the board concluded that probation was not appropriate and that he should establish fitness to practice before reinstated. (Mike Frisch)
Tuesday, February 9, 2010
The Illinois Review Board has recommended a 30 day suspension of an elected state's attorney for litigation misconduct. The board's synopsis of the case:
[The prosecutor], the State's Attorney of Wayne County, was charged with misconduct arising out of his prosecution of criminal charges against Curtis Sutton. The complaint charged [him] with making a statement of material fact to a tribunal that he knew or reasonably should have known was false, in representing a client failing to disclose that which he was required by law to reveal, suppressing evidence that he had a legal obligation to reveal or produce, in criminal litigation failing to make timely disclosure to defense counsel of the existence of evidence known to [him] that tended to negate Sutton's guilt or mitigate the degree of the offense, and engaging in conduct involving fraud, dishonesty, deceit or misrepresentation, conduct that is prejudicial to the administration of justice, and conduct that tends to defeat the administration of justice or bring the courts or legal profession into disrepute. [He] admitted most of the facts alleged in the complaint, but denied misconduct.
The Hearing Board found that [he] engaged in some, but not all, of the misconduct charged. The Hearing Board found that [he] engaged in misconduct by: a) failing to disclose to Sutton's attorney that a key prosecution witness, Brian Asher, had entered into a plea agreement with [his] office and the terms of that plea agreement, b) failing to correct Asher's testimony at Sutton's trial that he had not been offered anything in exchange for his testimony, and c) falsely stating in closing argument that Asher had not been promised or offered anything in exchange for his testimony. Given its findings as to [his] intent and the mitigating evidence presented, the Hearing Board majority recommended that [he] be suspended for thirty days. The third panel member recommended a censure.
The case was before the Review Board on the Administrator's exceptions, challenging some of the Hearing Board's findings in relation to the misconduct charged and its sanction recommendation. [He] did not challenge the Hearing Board's findings of misconduct, but sought a censure.
The Review Board affirmed most of the Hearing Board's findings as to the charges of misconduct. The Review Board, however, reversed the Hearing Board's finding that the Administrator had not proven that [he] engaged in misconduct by misstating, albeit unintentionally, the nature of a prior conviction of Asher's during a hearing on the admissibility of prior convictions for impeachment purposes. Given all the circumstances, the Review Board agreed with the Hearing Board majority's recommendation of a thirty-day suspension.
The review board noted that the prosecutor had no prior discipline, excellent character evidence and a general open discovery policy. However:
We intend, by the discipline recommended here, to send a very clear message that misconduct by attorneys prosecuting criminal cases will not be tolerated. The risk that a prosecutor's misconduct may cause reversal of the underlying criminal conviction has not served to meet the goal of deterring prosecutors from engaging in misconduct. Public prosecutors must be at least as amenable to professional discipline as other attorneys. This is particularly true of the person who is the State's Attorney... such as [him]. Where, as here, the Administrator proves by clear and convincing evidence that an individual prosecutor has violated ethical standards and engaged in professional misconduct, that attorney is subject to discipline. (citations omitted)
The New York Appellate Division for the First Judicial Department held that a law firm was not entitled to interest on an arbitration award and had acted in contravention of duties regarding entrusted funds. The law firm was awarded $30,000 less than it had claimed but did not disburse the balance to the client. The court concluded that the law firm should not benefit from its conduct:
..[law firm] petitioner is not entitled to post-award, pre-judgment interest since it was holding the $310,000 at issue in escrow and chose not to avail itself of the funds when the arbitrators' award of $280,000 became final. Although petitioner asserts that it could not pay itself from the escrowed funds without respondent's consent and also asserts that appellant never gave its consent, the relevant [ethics] rule...does not require client consent under these circumstances. To the contrary, it provides that the lawyer may withdraw the funds being held upon final resolution of the dispute. Nonetheless, when the award became final, petitioner did not pay itself the amount of the award and transmit the balance (approximately $35,000) to respondent. Rather, in addition to seeking respondent's written authorization for payment of the award from the escrow account, petitioner improperly sought to obtain a benefit from its former client by refusing to transmit the balance unless respondent and its principal executed releases. The balance belonged to respondent and petitioner had no legal claim to it. Accordingly, petitioner was required to "promptly pay" to respondent the funds to which it was entitled after the arbitrators' award became final...
In short, petitioner both deprived itself of the use of the funds awarded to it and deprived respondent of the use of the balance of the funds being held in escrow. Under settled law, petitioner's statutory right to interest is far from absolute. To the contrary, as then Justice Bergan stated for a panel of this Court, "[t]he holder of the judgment may be estopped by equitable considerations, or by his own acts, from enforcing the interest which the statute gives him" ...Given the "special and unique duties" petitioner owed to respondent, including "safeguarding client property and honoring the client['s] interests over [its own]"... we think it would be particularly inequitable to require respondent to pay statutory interest to petitioner and thus recompense petitioner for its own failure to pay itself. (citations omitted)
Because petitioner was holding more than the $280,000 it was awarded by the arbitrators on the date the award became payable, March 13, 2007, respondent is entitled to the balance that would have remained in the escrow account after payment of the award on that date, with interest on such balance from that date. In addition, because Supreme Court erred in awarding interest to petitioner and respondent was thereby required to pay an additional sum to petitioner to satisfy the judgment, respondent is entitled to the amount it paid over $280,000 to satisfy the judgment with interest from the date the sum was paid.
The Pennsylvania Supreme Court has accepted the consent disbarment of the former general counsel to Amkor Technology in the wake of his conviction on charges of insider trading. The attorney had been on an interim suspended status.
Details about the criminal proceedings may be found through this January 2009 post from Trading Markets.
An interesting ethical sidelight in the underlying criminal case is recounted in a May 16, 2007 Memorandum issued by Judge Dalzell of the United States District Court for the Eastern District of Pennsylvania denying the motions of two law firms for leave to withdraw. One firm contended that it had only represented the attorney in his initial appearance. The court held that such limited representation was not allowed. The second firm had concerns about payment of its fees. Each firm had contended that the other should continue to represent the defendant. (Mike Frisch)
The South Carolina Supreme Court accepted an agreed public reprimand of a former county magistrate for intervention with tickets. The court found the following facts:
This matter was referred to ODC following an internal investigation at the Department of Public Safety (DPS). DPS had received information that State Transport police officers had been instructed through the chain of command to curtail or cease certain enforcement activity at the Lee County Landfill and to "nolle pros" or reduce tickets which had already been issued to county or municipal government trucks. Two State Transport officers also reported they had been approached by Lee County magistrates for "help" on tickets.
Respondent maintains he is contacted approximately five times per year by a legislator for help on tickets on behalf of constituents and that he, in turn, contacts the officers to see if help is available. Respondent also talks to officers if a violator calls and requests help on a ticket.
Respondent admits that, on one occasion, he was contacted by a county administrator regarding a weight ticket issued by the State Transport Police at the Lee County Landfill and that he approached the officer before court about the ticket. The officer declined to help, citing as the reason that the legislator had complained about the officer enforcing weight limits at the landfill. Respondent called the legislator about the officer's remark. The legislator responded that the only thing he had done was "call somebody in Columbia" about the weight tickets and told them (presumably the State Transport police) that they could write tickets anywhere in Lee County except at the entrance to the landfill.
Respondent acknowledges he was contacted by a county official for help on weight ticket W223647 and that he contacted the issuing officer. The officer told respondent to contact his supervisor; respondent contacted the officer's supervisor and the supervisor declined to intervene.
A State Transport police officer reported that he was contacted by respondent about help on weight ticket W210437 which had imposed a fine of $3,905.25. The officer stated he told respondent he could not help with the weight ticket, although he "didn't care" what respondent "did" with the ticket. Further, the officer reported that respondent asked the ticket be marked "not guilty" and the officer marked the ticket accordingly. Respondent informed ODC that he did not ask the officer for help on ticket W210437, but acknowledges that the trial officer's copy of the ticket indicates he was the presiding judge.
As to the agreed misconduct:
We have already condemned the practice of ticket-fixing or attempted ticket-fixing by magistrates. Ticket-fixing constitutes improper ex parte communication and severely undermines the public's confidence in a fair and impartial judicial system. Accordingly, again we emphasize that it is improper for a magistrate to engage in ex parte communications concerning any pending or impending judicial proceeding with an officer, alleged violator, or any third party, including a member of the legislature. (citations omitted)
The court also barred the former magistrate from seeking judicial office without its express permission and notice to disciplinary counsel.
Title update. The inspiration for this title comes from the recounting of a famous headline in the movie Yankee Doodle Dandy, my childhood favorite film. Wikipeda reports:
STICKS NIX HICK PIX is a headline printed in Variety, a newspaper covering Hollywood and the entertainment industry, on July 17, 1935, over an article about the reaction of rural audiences to movies about rural life. It is one of the most famous headlines ever to appear in an American publication.
Using a form of headlinese that the newspaper called slanguage, "Sticks Nix Hick Pix" means that people in rural areas ("the sticks") reject ("nix") motion pictures ("pix") about rural life ("hicks"). The conventional wisdom of the movie industry was that themes of upper-class life would not be popular in the countryside; according to the article, this assumption was incorrect.
According to Robert Landry of the Variety staff, the headline was written by Lyn Bonner; however, Sime's Site (a site for people associated with Variety, named after the paper's founder) credits it to Abel Green.
Because it was the lead headline of the paper, it was printed in all capital letters. Standard style for other Variety headlines was initial capital letters on virtually all words.
The New York Appellate Division for the First Judicial Department modified an order dismissing a suit for allegedly unpaid legal fees in a matrimonial action. The attorney and client had executed three retainer agreements that provided notice of rights to arbitration of fee disputes. The attorney thereafter sued for over $155,000 in fees. The supreme court concluded that the case should be dismissed for non-compliance with rules governing arbitration of fee disputes in matrimonial cases. The court stated the issue:
Characterizing the issue before it as "one of pure contract interpretation," the Supreme Court dismissed the complaint, finding that plaintiff breached the unambiguous retainer agreements by failing to give defendant 30 days' notice of her right to fee arbitration prior to commencing suit. We now consider whether in performing its analysis, the Supreme Court erred when it held that the retainer agreements may be construed without reference to the matrimonial rules governing retainers, fee disputes and arbitration in domestic relation matters that were in effect at the time the retainer agreements were executed.
The court concluded that the arbitration rules did not apply where the amount at issue exceeded $100,000 and reinstated the claim:
Here, in accordance with the matrimonial rules, plaintiff presented executed written retainer agreements which contain a fee arbitration provision and attached a copy of the statement of client's rights and responsibilities. In his complaint, plaintiff alleged "[t]hat neither Part 136, nor Part 137 of the Uniform Rules is applicable because of the amount in controversy, and, as to the latter Part, also because representation of Poster commenced in 1997." Given that it is undisputed that the amount in dispute exceeds $100,000, the parties' fee dispute is not subject to arbitration under the matrimonial rules, and plaintiff's complaint states a valid cause of action that should not have been dismissed on the basis of his failure to give defendant notice of her right to arbitrate.
The court affirmed the denial of the plaintiff attorney's motion for summary judgment. (Mike Frisch)
Monday, February 8, 2010
The danger in representing a friend without following the normal formalities of an attorney-client relationship is apparent in a recent recommendation for discipline by an Arizona Hearing Officer. The attorney was admitted to practice in November 2006. She advertised for a roommate and became close friends with the woman who answered the ad and moved in. The roommate left to marry and moved back in when the marriage encountered difficulty. The attorney agreed to handle the divorce on a pro bono basis. The attorney and client also entered a lease agreement for the client to run a horse riding school on the property purchased by the attorney and the attorney's father. The attorney sought an award of attorney's fees in the divorce matter without disclosing that she was charging the client no fees.
The hearing officer accepted a stipulation finding that the attorney had not provided a writing that set forth the scope of the representation and that the business transaction with the client failed to comply with formal requirements. The hearing officer expressed concern about the possible misleading statements to the tribunal about the fees but found the agreed sanction appropriate.
The hearing officer noted the attorney's remorse and attributed the violations to a "more-than-casual" attitude towards the representation of a close friend. The proposed sanction is a censure and one year of probation with conditions. (Mike Frisch)
An attorney who was the subject of bar complaints from five former clients was suspended for two years by the Georgia Supreme Court. The attorney had stipulated to a sanction in the six-month to two-year range. He had asserted that he suffered from bi-polar disorder, ADHD, major depressive disorder and generalized anxiety disorder. He also had stress associated with his marriage. He had returned the client retainers and voluntarily paid $12,000 to one client.
The court required that he submit the opinion of a board certified psychiatrist that he is mentally fit in order to obtain reinstatement. (Mike Frisch)