Saturday, March 6, 2010

36 Arguments for the Existence of God: A Work of Fiction by Rebecca Newberger Goldstein

Posted by Jeff Lipshaw

To paraphrase Bill Murray in Stripes, I rarely read fiction but when I do it's something unusual.  (Unfortunately, however, chicks don't dig me.)  I'm reading 36 Arguments for the Existence of God:  A Work of Fiction by Rebecca Newberger Goldstein right now.  I was lucky enough to attend her reading of the first chapter at the Harvard Book Store.

Ms. Goldstein is a Princeton-certified philosopher, and well acquainted with the folkways of academia.  The hero is Cass Seltzer, a psychology professor at Frankfurter University in Weedham, Massachusetts, just up the river from Harvard, who has crossed over into popular culture with his book The Varieties of Religious Illusion, and now holds an offer to join the Harvard faculty.  His love interest is the beautiful and brilliant Lucinda Mandelbaum, originator of the Mandelbaum Equilibrium in game theory.  There are thirty-six short chapters, each entitled "The Argument from ... ", and an appendix summarizing the thirty-six actual philosophical arguments (and a critique of each one) that appear in Cass's fictional book. 

I guess it's not for the faint-hearted, but what prompted me to offer this endorsement was finishing the really clever chapter in which Cass works through a Prisoner's Dilemma matrix on being the first person to say "I love you" in a relationship (X and Y each have the strategy of saying or staying silent, and the payoffs are bliss, discomfort, hell, and status quo), concluding (not in these words) that the dominant rational strategy would always be to stay silent, so how can it be that anyone ever says "I love you" first.

How about this?  Chances are that if you like Bruces' Philosopher Song, you'll like this book.

March 6, 2010 in Books | Permalink | Comments (0) | TrackBack (0)

Moonlighting DA Suspended

The Louisiana Supreme Court suspended an attorney for a year and a day. While serving as an assistant district attorney, he had undertaken to represent several criminal defendants with respect to charges in the same parish. Such conduct was specifically prohibited by his oath of office. The District Attorney had reported the misconduct.

A hearing committee had found that the conduct had not harmed anyone and had recommended a six-month suspension. The Disciplinary Board disagreed and recommended the longer suspension (with fitness) that the court adopted. The court found several factors in aggravation and discerned no mitigating factors. (Mike Frisch)

March 6, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Perfect Storm

A Michigan disciplinary hearing panel has found that the attorney representing former Detroit Mayor Kwame Kilpatrick violated ethics rules in defending the Mayor in civil litigation. The panel's 83 page opinion describes the events that unfolded as an "ideal law school final examination in professional ethics" and a "perfect storm" of circumstances that led to the violations.

The panel unanimously found violations by the attorney in attempting to cover up a settlement agreement and keep it secret, assisting in the cover up of false testimony, failing to disclose false testimony to a tribunal and not responding truthfully to the request for investigation.

The testimony at issue related to the false denials of an intimate relationship between the Mayor and a witness at the civil trial. Opposing counsel obtained highly incriminating text message evidence of the relationship through a post-trial third party subpoena and showed portions to the attorney. The information led to a post-trial settlement after a parking lot discussion between counsel. The settlement documents were drafted to avoid disclosure of the text messages.

The panel rejected a number of charges, including an alleged violation of Rule 4.1 and an uncharged violation of Rule 8.4 in somehow assisting the misconduct of opposing counsel with respect to the text messages. The panel also found no violation of the Rule 8.3 duty to report the misconduct of opposing counsel and the Mayor.

The panel also noted that the seven day hearing was one of the longest in Michigan bar history and that several of the witnesses may have been biased as they also face related bar discipline charges.

The matter was set for a prompt determination of appropriate discipline for the misconduct.

In a related matter involving charges of ethical violations against the attorney who had represented two whistle blowers with claims involving the Mayor, a separate panel found that the attorney had violated a court order by issuing the above-described third party subpoena without notice to the other side. The panel further found that he violated the court order directing in camera inspection of the text messages which had remained in effect after the trial.

The panel rejected his various defenses to his conduct, which they summarized as follows: (1) the other side started it; (2) everyone does it; (3) he had to do it to get what he wanted; and (4) he was "fighting the good fight" and "didn't hurt anybody."

The panel found that the attorney had not violated a charged Rule 8.3(a) violation in failing to report the Mayor's false testimony to disciplinary authorities. Although he had knowledge of the misconduct, the matter was still in litigation where the attorney could consider the client's interests. Notably, the attorney had testified that he was "not familiar with the rule" requiring a report until a newspaper reporter told him of the ethical obligation. The panel also considered the unique circumstances of the case against the Mayor in reaching its result on the charge.

The attorney who represented the whistle blowers testified in the discipline case against the Mayor's attorney. That panel found he testified falsely.

There are three related pending matters that are awaiting panel reports. (Mike Frisch)

March 6, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, March 5, 2010

A Safe Assumption

The Massachusetts Supreme Judicial Court affirmed the denial of a motion for new trial in a case that involved an undisclosed previous intimate relationship between defense counsel and a prosecutor who was not involved in the case (the "ADA"). The defense attorney also had dated the trial prosecutor many years before the trial.

The key facts:

While he was representing Stote, Walsh and the ADA attended a concert together in late March, 1999, and began dating, seeing each other on weekends, until approximately April, 2000. When this relationship began, Walsh had already prepared and filed Stote's first motion. During the course of Walsh's relationship with the ADA, the first motion was denied after a nonevidentiary hearing, and Walsh prepared and, possibly, filed Stote's appellate brief.

The affidavits of Walsh and the ADA reveal the following facts about the nature of their relationship. The ADA attests in her affidavit that she and Walsh did not live together at any time during their relationship. Walsh similarly attests that they lived separately. The ADA also states that she does not know whether the relationship was "monogamous." Although neither affidavit states whether the relationship was sexual, we can safely assume that it was, given that the relationship lasted more than one year, the participants were mature adults, neither of them has denied it, and the ADA's reference to a "monogamous" relationship implies as much. The ADA further states that Walsh did not bring legal work to her home, did not to her knowledge receive telephone calls at her home regarding legal matters, and did not discuss Stote's case with her or disclose confidential information to her. She states that, while she and Walsh were seeing each other, they did not "substantively" discuss their "respective legal concerns" and that their work did not "overlap in any respect." Although she was aware that Walsh was working on "an appellate brief," she did not know of its contents, and "even if" she knew the defendant's name "at that time," she did not know anything about Stote's case until she read our 2000 opinion, which was issued after the relationship ended. Walsh similarly attests that he did not discuss Stote's case or appeal with the ADA and that he did not disclose any confidential information to her. Shortly after the relationship ended, according to the ADA's affidavit, Walsh began living with another woman whom he later married.

The ADA's affidavit also indicates that she did not participate in the preparation of the Commonwealth's brief in Stote's appeal. The trial prosecutor, in her affidavit, attests that she alone wrote the Commonwealth's opposition to Stote's first motion and, later, the Commonwealth's appellate brief without the assistance of anyone in the district attorney's office, other than submitting the brief to her superiors for approval. The trial prosecutor further states that she did not discuss any aspect of the Stote case with the ADA.

Although, in accordance with the single justice's decision, we do not consider whether Stote is entitled to a new trial due to any alleged conflict of interest arising from Walsh's previous relationship with the trial prosecutor, some facts concerning that relationship are relevant to our decision. In 1979 and 1980, Walsh and the trial prosecutor dated, but lived separately. Their dating relationship ended amicably in 1980, some seventeen years before Stote's trial. Walsh and the trial prosecutor maintained a cordial and professional relationship thereafter. Both Walsh and the trial prosecutor eventually went on to marry others, in Walsh's case, as stated above, after his relationship with the ADA ended.

The court concludes:

Stote argues on appeal that, because of Walsh's relationship with the ADA, Walsh failed to argue that he was burdened by a conflict of interest at trial arising from his previous intimate relationship with the trial prosecutor, depriving Stote of the effective assistance of appellate counsel. We disagree. First, the judge found that the intimate relationship between Walsh and the trial prosecutor had ended seventeen years before Stote's trial and gave rise to no actual conflict of interest. Second, as to any potential conflict of interest arising from Walsh's relationship with the trial prosecutor, the judge pointed out that Walsh "had no hesitation whatsoever in lambasting [the trial prosecutor] for her alleged transgressions at trial" and concluded that "Walsh vigorously represented the defendant both at trial and on appeal." Much of our opinion in Stote's direct appeal is devoted to disposing of Walsh's charges concerning the trial prosecutor's conduct of the trial.

Stote also argues that Walsh, as his trial counsel, deprived him of effective assistance due to various failures and omissions at trial, such as failing to investigate and develop certain evidence that would have supported Stote's defense. Due to the limited scope of review authorized by the gatekeeper, this claim is properly before us only to the extent that it might establish material prejudice arising from Walsh's relationship with the ADA...Accordingly, to obtain relief on this basis, Stote would have to show not only that the asserted failures at trial constituted ineffective assistance of counsel (that is, that if these asserted failures had been raised in Stote's direct appeal, the conviction would have been reversed), but also that the relationship with the ADA was what prevented Walsh from raising such claims in the direct appeal. Whatever the merits of the former element, Stote cannot establish the latter. Stote offers no reason to believe that, but for the relationship, Walsh would have raised these issues and thereby accused himself of ineffective assistance. Put another way, supposing that Walsh had not been involved in a relationship with the ADA or anyone else in the district attorney's office and that he was therefore under no potential conflict of interest, he nonetheless would not have argued in the direct appeal that he deprived Stote of effective assistance at trial. In these circumstances, the relationship did not affect the arguments raised in Stote's direct appeal. Stote has not shown that any potential conflict of interest arising from his attorney's relationship with the ADA resulted in any material prejudice to him.

Conclusion. We conclude that in the circumstances of this case, there was neither an actual conflict of interest nor a potential conflict that resulted in material prejudice in Stote's appeal. We remind members of the bar of their professional obligation under rule 1.7(b) to disclose to their clients any intimate personal relationship that might impair their ability to provide untrammeled and unimpaired assistance of counsel. Even if an attorney reasonably believes that he or she can continue to represent the client vigorously, the attorney should err on the side of caution by disclosing the relevant facts, which need not include the name of the third person, and asking whether the client consents to the representation.(citations and footnotes omitted)

The case is Commonwealth v. Stote, decided March 5, 2010.(Mike Frisch)

March 5, 2010 in Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

No To Husson Law Again

The Maine Supreme Court has again denied Husson University's request for permission to allow its future Juris Doctor graduates to sit for the bar examination. The court found that the renewed request detailed "a program largely identical to that proposed in its [denied] 2007 submisions." The court had conducted a hearing and received statements from a variety of groups including its Board of Bar Examiners.

The renewed request had sought the court's "preliminary approval of a blueprint of its proposed law school program" rather than blanket approval for its graduates. The court expressed concern that the University has apparently decided not to apply for ABA accreditation and has not yet begun operations:

Like any other nascent law school, and in the absence of any other existing accrediting body, Husson may apply to the ABA for provisional accreditation after it has been in operation for one year...It could then demonstrate its compliance with all the other ABA standards while the ABA is reviewing its position on the issue of tenure. If, at the conclusion of the evaluative processes, Husson has met all of the other criteria, and the ABA decides not to change its standards on tenure, Husson must then decide whether to revisit its own policy on tenure.

Husson's faculty had voted to eradicate the faculty tenure system more than 15 years ago. (Mike Frisch)

March 5, 2010 in Current Affairs, Hot Topics | Permalink | Comments (0) | TrackBack (0)

A Balance Of Factors

A disciplinary decision issued today by the Nebraska Supreme Court gives us a good sense of the myriad factors that drive the determination of the appropriate sanction for ethics violations. The attorney was the subject of two complaints. One matter involved neglect and failure to communicate with a divorce client. The attorney claimed that it was his partner's case and accepted responsibility for the mixup. The second matter also involved a divorce case with what the attorney called a "nasty" client. According to the attorney, the client wanted to consult with him by speaker telephone with an unknown man listening. The attorney falsely claimed he had refunded the retainer.

In considering sanction, the court noted a series of private reprimands. The attorney had entered practice after a military and paralegal career. He had suffered through a heart attack, cancer and a divorce. He had cooperated with Counsel for Discipline.

The court determined that the appropriate sanction was a six-month suspension followed by two years of supervised probation. (Mike Frisch)

March 5, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Gross Negligence

The West Virginia Supreme Court imposed a six-month suspension followed by probation for one year in a matter where an attorney drafted a will that named him as executor of the estate. After the client die, the attorney paid himself $11.000 out of estate assets. A beneficiary of the estate retained counsel, secured his removal and filed a bar complaint. The court concluded:

[the attorney's] misconduct violated a duty owed to a client, to the public, to the legal system, and to the profession. [He] paid himself an advance fee that he would have been entitled to if, in fact, he had done any work to support the fee. While he argues he performed sufficient work for the fee, the record does not support this assertion. Significantly, when ordered by both the Harrison County Commission and the Circuit Court of Harrison County to do certain things and pay certain monies, his delays in complying with those orders caused the estate and its beneficiaries to incur even greater expenses. Therefore, we will not disturb the finding made by the HPS.

      Second, the HPS found that [his] misconduct was not intentional, but that it was gross negligence. It was acknowledged that [he] did not have much experience in performing estate work. While lack of experience may account for some of the misconduct, it does not account for [his] dilatoriness and failure to comply with tribunal orders in an attempt to make amends for his transgressions. Therefore, we agree with the HPS that his conduct was grossly negligent.

(Mike Frisch)

March 5, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, March 4, 2010

Husbands And Wives

A recent disciplinary case is summarized on the web page of the Massachusetts Board of Bar Overseers:

On February 1, 2008, a husband filed through counsel a complaint for divorce in which he sought custody of the couple’s minor children and child support. After being served with a copy of the divorce complaint, the husband’s wife consulted with the respondent regarding representation in the divorce matter.

The respondent had in May 2007 represented the husband for a period of time in personal injury and workers’ compensation claims arising from a work-related accident. In connection with that representation, the respondent had obtained medical and other treatment records for the husband.

On February 8, 2008, the respondent sent a fax to the husband’s divorce counsel stating that he would be representing the wife in the divorce matter. Later that same day, the respondent notified the husband’s lawyer that he would not be representing the wife due to his prior representation of the husband.

On February 12, 2008, the respondent met with wife and, without the husband’s permission, gave her the husband’s medical and treatment records as information relevant to the husband’s request for custody. The respondent violated Mass. R. Prof. C. 1.6(a) and 1.9 (c) by disclosing the medical and treatment records to the wife without the husband’s consent. The wife’s lawyer did not review the records or use them to the husband’s disadvantage, and the records were returned to the husband’s divorce lawyer.

The matter came before the Board of Bar Overseers on a stipulation of facts and a joint recommendation that the respondent receive a public reprimand. The Board of Bar Overseers accepted the parties’ recommendation and imposed a public reprimand on December 14, 2009.

The case is Matter in Horrigan, decided on January 8, 2010. (Mike Frisch)

March 4, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Disability Status Results In Bar Complaint Stay

The Minnesota Supreme Court accepted a joint recommendation and ordered that an attorney be transferred to disability inactive status. As a result, a pending disciplinary complaint was stayed. The complaint alleged that the attorney had made a series of 12 telephone calls to a client over an approximately one hour period. The purpose was to collect outstanding legal fees. The attorney allegedly:

made a series of statements that constituted harassment on the basis of religion and/or national origin, in violation of Minn. R. Prof. Conduct 8.4(g). Respondent stipulates that the factual allegations recited above are sufficient to support a finding that she violated the Rules of Professional Conduct. 

(Mike Frisch)

March 4, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Termination, Not Hints, Triggers Wrongful Discharge Claim

The District of Columbia Court of Appeals affirmed the dismissal of a former law firm associate's claim of failure to accommodate a disability on grounds that the claim was time-barred. However, the court reversed the dismissal of a related claim of wrongful discharge and remanded that claim for trial on the merits.

The associate was hired by the law firm in 2000. While attending a firm trial training program in April 2001, her dominant hand was burned. She suffered extreme pain and medical limits on her activities and took a month leave of absence for treatment. She requested a number of accommodations on her return and alleges that she was told by her supervisor "that if she was still injured, she was 'of no use to anyone.' " After a second leave of several months, she claimed that she was told not to seek substantive billable work until she could work without restrictions. There were further requests for accommodations and performance reviews. The associate attorney received notice of discharge from the firm in late October 2002.

The court here concludes that the statute of limitations for wrongful discharge began to run with the formal termination. Earlier threats or hints of poor performance do not trigger the statute. (Mike Frisch)

March 4, 2010 in Billable Hours, Law & Business, Law Firms | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 3, 2010

Web Page Confidentiality Breach Charged

The Illinois Administrator has filed a disciplinary complaint alleging that an attorney divulged confidential information about a former client on his web page. The complaint contends that the attorney was angered when the client discharged him:

On or about March 2007, [the client] informed Respondent that she was discharging him as her attorney, and that she was hiring John Cutright ("Cutright") to handle her case.

On March 27, 2007, Respondent withdrew from case number 2005 D 67, and Cutright entered his appearance for [the client].

After [the client] discharged Respondent and hired Cutright, Respondent became angry with her, and sent her a bill for additional fees, which [the client] refused to pay.

In the fall of 2008, Respondent was a candidate for the office of Cumberland County State’s Attorney. During his campaign, had a web site at

On October 27, 2008, the local newspaper, the Toledo Democrat, published a letter from Respondent’s former employee, Marilyn Henderson ("Henderson"). Henderson’s letter was critical of Respondent and his candidacy for the position of State’s Attorney. Respondent was aware of the letter. Respondent was aware that Henderson and [the client] were friends, and that [the client] had cared for Henderson’s disabled son.

In November 2008 Respondent posted, or caused to be posted, on his web site, confidential information from [the client] he had received while he was her attorney, including her home address and social security number.

Respondent also posted, or caused to be posted, confidential information regarding  [the client's] compensation for caring for Henderson’s disabled child. Respondent also posted, or caused to be posted, confidential information from Henderson, including Henderson’s social security number, address, a letter from the Illinois Department of Human Services regarding a fraud investigation pertaining to Henderson, information from Casey State Bank regarding an alleged forgery by Henderson, a decision from the State of Illinois Department of Employment Security regarding Henderson.

At no time did [the client] give Respondent permission to post her confidential information on the internet.

Another count charges the attorney with entering into an attorney-client relationship with a divorcing wife and thereafter entering his appearance for the husband. There are other charges as well. (Mike Frisch)

March 3, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Gambling, Drinking Leads To Theft, Indefinite Suspension

From the web page of the Ohio Supreme Court:

The Supreme Court of Ohio today imposed an indefinite suspension against  the law license of [an] Akron attorney...for misappropriating more than $100,000 from her law firm by depositing retainer fees she received from 32 clients into her own personal bank account rather than the firm’s accounts. [The attorney] has been under an interim license suspension  since February 2009, when the Court was notified of her conviction on a felony theft charge.

In today’s 7-0 per curiam decision, the Court adopted findings by the Board of Commissioners on Grievances & Discipline that [the attorney's] actions violated the state attorney discipline rules that  prohibit conduct involving dishonesty, fraud, deceit, or misrepresentation and conduct that adversely reflects on an attorney’s fitness to practice law; and that require an attorney to preserve the identity of client funds in his or her possession.

The Court adopted the disciplinary board’s recommendation that [the attorney] be credited with the time she has been under interim suspension. As prior conditions for future reinstatement of her license, the Court ordered that [she] must complete the term of probation imposed for her criminal conviction, enter into and comply with a contract with the Ohio Lawyers Assistance program to address gambling and alcohol addictions that contributed to her misconduct, must comply with a settlement agreement to repay her law firm’s insurer for losses arising from her thefts, and must receive a prognosis from a qualified healthcare professional that she is able to return to the competent and ethical practice of law.

The court's opinion is linked here. This link should take you to a video of the oral argument. (Mike Frisch)

March 3, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

"Obvious Disinterest"

The South Carolina Supreme Court disbarred an attorney for misconduct in connection with his high volume bankruptcy practice. The court noted:

We find the Panel's recommended sanction of disbarment is warranted.  By his default, Respondent has admitted to committing multiple acts of serious misconduct.  Respondent's conduct also indicates an obvious disinterest and indifference to the practice of law given he has left this jurisdiction and has not responded to this disciplinary action.  Furthermore, Respondent has an extensive disciplinary history involving:  a suspension from practicing in the Bankruptcy Court, a letter of caution from the Commission, a suspension by the Commission on CLE for failure to comply, and a suspension from this Court for failure to comply with CLE.  

(Mike Frisch)

March 3, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 2, 2010

The Cabinet Matter

A disciplinary sanction reported in the March 2010 online edition of the California Bar Journal;

[An attorney] was suspended for two years, stayed, placed on two years of probation with an actual 30-day suspension and he was ordered to take the MPRE within one year. The order took effect Aug. 13, 2009, although the actual suspension was not effective until Sept. 14, 2009.

...the former Merced County District Attorney, stipulated that he committed an act of moral turpitude by misrepresenting his identity while trying to resolve a dispute his son and daughter-in-law had with a kitchen cabinet company.

[He] assigned the matter to a deputy DA in his office’s consumer fraud unit. The deputy was dismissed for unrelated matters before taking any action. When [the DA] learned later that nothing had been done, he asked an investigator in his office to handle the matter. Their conversation was interrupted so [he] later asked the investigator if he could use his name in talking to the cabinet company. The investigator agreed and was in the room when [he] called.

However, the company’s representative said she had to contact the legal department and would call back later. [The DA] provided his investigator’s phone number. It was the only call [he] made on the cabinet matter.

When the investigator asked how he would explain the difference between his voice and [the DA's], the DA advised him to say he was sick. [The DA] acknowledged his action was a mistake, but said he was trying to avoid intimidating the cabinet company, had it known the dispute was with members of the district attorney’s family.

In mitigation, [the DA] has no record of discipline, he cooperated with the bar’s investigation, demonstrated good character and displayed remorse for his misconduct.

(Mike Frisch)

March 2, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The "Goat Hacking" Justification for Contract Law

Posted by Jeff Lipshaw

NateHS A contract law theorist whose work I admire greatly, Nate Oman (William & Mary, Visiting Cornell, left), has posted a new piece in the burgeoning area of "pluralistic" contract theory.  For the uninitiated, the poles of the debate over the last twenty-five years or so have been, on one hand, the "law & economics" view which sees state enforcement of private promises as justified by the enhancement of economic welfare (i.e., people are more likely to invest in transactions that move goods and services to those who value them the most if contracts are in place that restrain opportunism) and, on the other hand, the "promise principle" view that the state has an interest in upholding the moral commitment of a promise.  The problem with both views is that they either explain too much or too little about not only the justification of state involvement in private matters, but also the specific elements of doctrine themselves.  A number of theorists, including Nate, have either tried to reconcile the poles, or to propose other alternatives.

Nate's most recent contribution to the discussion is Consent to Retaliation: A Civil Recourse Theory of Contractual Liability, and the abstract follows:

In the ancient Near East, contracts were often solemnized by hacking up a goat. The ritual was in effect an enacted penalty clause: "If I breach this contract, let it be done to me as we are doing to the goat." This Article argues that we are not so far removed from our goat-hacking forbearers. Legal scholars have argued that contractual liability is best explained by the morality of promising or the need to create optimal incentives in contractual performance. In contrast, this Article argues for the simpler, rawer claim that contractual liability consists of consent to retaliation in the event of breach. In the ancient ritual with the goat, the retaliation consented to consisted of self-help violence against life and limb. The private law in effect domesticates and civilizes retaliation by replacing private warfare with civil recourse through the courts. It thus facilitates the social cooperation made possible by the ancient threats of retaliation while avoiding the danger of escalation and violence that such private violence presented. This civil recourse theory of contractual liability provides an explanation for a number remedial doctrines that have proven difficult for rival interpretations of contract law to explain, including the penalty clause doctrine, limitations on expectation damages, and the basic private law structure of contractual liability. Finally, this Article responds to some of the most powerful objections that might be made against a civil recourse theory of contractual liability.

I should add that I'm sympathetic to this view, having argued elsewhere a similar point about contracts being backup mechanisms that take effect when the social norms of a relationship break down.  If Nate and I part company, it may be that I am less persuaded that the jurisprudential justification translates into specific doctrine.  But, as Larry Solum says, download it while it's white hot.

March 2, 2010 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)

Trust Account Problems Lead To Reprimand

The South Carolina Supreme Court imposed a public reprimand with conditions on an attorney who had failed to reconcile his trust account records for over twenty years. This can lead to problems, as the court found:

For more than twenty years, respondent maintained a client trust account (the Old Account) without keeping accurate records and without proper reconciliation of the account.  In 2006, following an audit by respondent’s title insurance company, respondent opened a new trust account (the New Account) because he was unable to sufficiently identify the funds in the Old Account or adequately document outstanding disbursements.  Although respondent opened and began to use the New Account, he continued to use the Old Account for a significant number of his clients’ transactions. 

In August 2008, respondent issued approximately twenty-six checks on the New Account when there were not sufficient funds in the account to cover them.  When those checks were presented to the bank, reports were submitted by the bank to the Commission on Lawyer Conduct pursuant to Rule 1.15(h), RPC, Rule 407, SCACR.  In response to the reports from the bank, and the resulting disciplinary investigation, respondent retained an accountant to assist him in determining the cause of the overdrafts. 

In the meantime, respondent began making deposits of his own funds into the New Account to cover what he thought were the remaining outstanding checks.  However, because respondent had not adopted appropriate recordkeeping and reconciliation practices upon opening the New Account, his estimate of the total amount of outstanding checks was incorrect.  This inaccuracy, coupled with the fact that respondent continued to issue checks on the New Account, resulted in additional overdrafts. 

Between August 1, 2008 and October 31, 2008, respondent issued approximately sixty-one checks on the New Account, totaling in excess of $1,147,000, on insufficient funds.  According to the results of the audit, the overdrafts on the New Account were caused by several wires of incoming funds being sent erroneously to the Old Account rather than to the New Account.  Because respondent was not confirming that his wires were received in the correct account prior to disbursement, he issued checks from the New Account not knowing that the funds were not available.

Respondent had delegated complete control over the law office accounting, including both trust accounts, to a single employee.  She was responsible for issuing checks, making deposits, reconciling the accounts, reviewing bank statements, and maintaining records.  Respondent gave her a signature stamp and authorized her use of it on trust account checks.  She had very little formal accounting education and received no instruction or training from respondent regarding ethical obligations related to client funds.  Respondent did not review his bank statements, his financial records, or the employee’s reconciliation reports.  Over a period of about two years, the employee removed approximately $320,000 from the Old Account to the firm’s operating account, although the firm was not entitled to the funds.  Because respondent was not adequately supervising the management of the accounts, respondent was unaware of the transfers until the audit was conducted. 

As a result of the audit, respondent has now identified all outstanding checks and created accurate client ledgers.  Respondent has confirmed that all outstanding checks have either been paid or have sufficient funds on deposit to cover them.  The incorrect wires into the Old Account in August 2008 covered the funds improperly removed from that account to the operating account by respondent’s employee.  The shortages caused in the New Account by the incorrect wires were restored by deposit of respondent’s own funds.  Based on the information now available, it does not appear that any clients, third parties, or banks have suffered any losses.

(Mike Frisch)

March 2, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Sanction For Unauthorized Practice

From the web page of the Ohio Supreme Court:

The Supreme Court of Ohio today imposed a $20,000 civil penalty against Kimberly A. Dalton of Cincinnati and Precision Land Title Agency for engaging in the unauthorized practice of law, and issued an injunction ordering them to desist from all future actions that constitute unauthorized law practice.

The Court adopted findings by the Board on the Unauthorized Practice of Law that: 1) Dalton, who is not an attorney, and Precision Title prepared and filed two real estate general warranty deeds despite the fact that those actions constitute the practice of law; 2) the signature of attorney David B. Bennett, a former owner of the agency, was forged on one of the deeds; and 3) both deeds falsely indicated that they had been prepared by Bennett.

In a 7-0 per curiam opinion, the Court also ordered Dalton and Precision Title to disclose to the Ohio State Bar Association and the unauthorized practice board the names and addresses of any other agency clients whose deeds were prepared by a non-attorney, and to notify all such clients and all lenders and title insurance companies involved in their transactions that the deeds recording those transactions were prepared by a person not qualified to practice law.

The Court noted that, although Dalton dissolved Precision Title and filed for Chapter 7 bankruptcy protection while the board was investigating the complaint against her, federal bankruptcy statutes do not stay a legal action to enforce the Court’s regulatory powers, and will not discharge an individual from a debt for the type of governmental fine, penalty or forfeiture assessed by the Court in today’s decision.

The court opinion is linked here. (Mike Frisch)

March 2, 2010 in Current Affairs, Law & Society | Permalink | Comments (0) | TrackBack (0)

Scrambled Eggs And Malpractice

The Maryland Court of Special Appeals recently held that a trial court order that denied a motion to quash a subpoena on grounds of attorney-client privilege was not subject to an immediate appeal. One law firm had represented a divorcing wife and had secured the divorce. One aspect of the divorce obligated the husband to continue to designate the ex-wife client as a beneficiary of an insurance policy. He did not. A second lawyer assumed responsibility for the insurance issue, which resulted in a settlement.

The first law firm sued the client for unpaid legal fees. The former client countersued for legal malpractice based on the contention that the first firm had failed to notify the insurer of the provision that obligated the ex-husband to continue her as the beneficiary. The first firm claimed that the loss was attributable to the improvident decision to settle by the client and the second attorney.

The law firm sought to depose the second lawyer. The motion to quash asserted attorney-client privilege. The trial court denied the motion to quash on grounds of waiver of the privilege.

The court here concluded that the trial court order could not be appealed at this juncture. The trial judge's ruling did not conclusively resolve any issue and can be reviewed if any appeal is taken. Further, the advice given to the client by the second attorney is central to the disputed issues in the litigation. As the court observes: "The eggs cannot be unscrambled." (Mike Frisch)

March 2, 2010 in Clients, Law Firms, Privilege | Permalink | Comments (0) | TrackBack (0)

Monday, March 1, 2010

Future Ed: New Business Models for U.S. and Global Legal Education

New York Law School
April 9-10, 2010

Harvard Law School
October 15-16, 2010

Got an idea about the future of U.S. legal education? Think it’s time to go clinical? Or global? Or virtual? Should law be combined with other fields of study at the graduate or undergraduate level?

There is no shortage of commentary about the challenges facing American law schools. Driven by the Carnegie Foundation’s highly critical 2007 report and the dramatic downturn in large firm associate hiring, law school deans and administrators are scrambling to predict the future and position themselves within a rapidly changing market. But what is the likely shape of the future market—or markets—for legal education? What are the most promising models for delivering education and training in those markets? And how do we get there from here?

New York Law School and Harvard Law School are hosting a year-long contest of ideas about legal education (website here). The goal is to come up with operational alternatives to the traditional law school business model and to identify concrete steps for the implementation of new designs. The kickoff event is a two-day conference for educators, employers, and regulators at New York Law School on April 9-10, 2010, to identify problems, innovations and constraints, and to organize working groups to develop designs and strategies for implementation. Working groups will refine their ideas and reconvene for a second meeting at Harvard Law School on October 15-16, 2010. Final designs will be presented, with commentary, at New York Law School in April, 2011. 

Interested? Questions? Please email

[Posted by Bill Henderson]

March 1, 2010 in Conferences & Symposia | Permalink | Comments (0) | TrackBack (0)

Summarily Suspended

The web page of the Virginia State Bar reports on a recent order in a bar discipline case:

On February 26, 2010, the Virginia State Bar Disciplinary Board summarily suspended [an attorney's] license to practice law, based on his February 9, 2010, conviction of assault and battery of a law enforcement officer in the Chesapeake Circuit Court. The board ordered him to appear on March 26, 2010, to show cause why his license should not be further suspended or revoked.

[The attorney's] license was administratively suspended on October 9, 2009. He has been ineligible to practice law since that date.

(Mike Frisch)

March 1, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)