March 19, 2011
And new hardbacks
Three of the books I previously mentioned (e.g., Rosen on ethics and roles of lawyers who advise corporations, inhouse and outside) are in hardback now (and also at Ingram or Baker & Taylor catalogs), the first most relevant to this blog:
2. Cardozo's The Nature of the Judicial Process, with new Foreword by Andrew Kaufman. Navy cloth. At B&N and Amazon. For some reason B&N has priced it so absurdly cheap, $12.88 (!?), that it is pretty much the paperback price. For that, it would be easy to get for libraries and classroom adoptions/recommendations (or just to have on the shelf).
3. David Crump's modern abridged and rhyming version of Virgil's The Aeneid. At B&N and Amazon, with colorful hardback cover and nice paper. In this case, Amazon priced the hardback almost as low as the paperback.
Some Quick Book Notes on a Weekend
Posted by Alan Childress
Brief update to book project: Jerome Skolnick's Justice Without Trial is now out in a 4th edition, with his new preface and new foreword by Candace McCoy. New cover but with those iconic handcuffs. As ebook at Kindle, Nook, and Sony, but not yet in paperback (expected late April). Happy 80th birthday, Jerry! It is in the same classics series with Scheingold's Politics of Law and Order, released last month in all formats (linked here).
A sometimes-bizarre but fascinating diary/memoirs of battlefield nursing in World War I, with new foreword by my colleague Elizabeth Townsend Gard, who wrote her thesis on the genre of women writers in wartime for a history PhD at UCLA. The aptly named I Saw Them Die (1936), out in Nook, Kindle, and Smashwords (ePub, Sony, PDF), and on Monday here in paperback; and sold on Amazon in paperback. More info on this fascinating memoirs here.
The canonical sociology study TVA and the Grass Roots by Philip Selznick, out in paperback here (paperback is also found on Amazon and other stores). Everyone has heard of it; time to have on the shelf (and next month in ebook). New foreword examining its impact and insights, and prescience, by Berkeley's Jonathan Simon. This is an authorized edition, unlike the OCRd one on Amazon sold so far that attributes to Selznick the sentence: "The jocation of administrative control in the area of operations, with the Authority as a weole, in relation 10 tha fmdfl IJOVCrflffietit, taken as an example." Like reading Hal's version of Beowulf! For our edition: Proceeds benefit the author's scholarship fund at JSP-Berkeley Law. Look for the one with a pretty cover, using actual Norris Dam plans.
UPDATE Mar 27: The Kindle book for TVA and the Grass Roots is out now here, as are Nook at B&N and other formats all linked here. It, and the other books above, are now active at the iTunes bookstore.
March 18, 2011
A District of Columbia Hearing Committee has recommended that a petition for reinstatement be denied:
Petitioner was convicted of crimes that strike at the very integrity of the legal profession and judicial system. As a court-appointed attorney, he was given access to an array of juvenile defendants; he admittedly engaged in grossly inappropriate behavior with a number of them, perhaps as many as twenty. His admitted actions ranged from fondling to oral and anal sex. His victims were particularly vulnerable to someone like Petitioner, who was generous to them. He was also able to exploit the power of his position--a fear that, if the victims did not succumb to his advances, Petitioner might lose interest in them as clients.
The petitioner was disbarred in 1981 for the criminal convictions. He sought reinstatement in order to apply for admission in Hawaii, where he owns a home.
A remarkable part of the story told by the committee is petitioner's post-conviction admission to the Colorado Bar in 1990. Colorado held a hearing on his application but he eventually passed the character and fitness inquiry. The committee here finds that he falsely minimized his misconduct in the Colorado admission process, claiming that he had been convicted and disbarred as a result of his sexual orientation.
Bar Counsel agreed that he was presently competent to practice. The report details it's conclusion that he has failed to recognize and accept responsibility for his past actions in recommending that he not be reinstated in the District of Columbia.
To read the report, go to this link. The petitioner's name is Roger H. Moore. (Mike Frisch)
March 17, 2011
What's In A Name?
The Illinois Administrator has filed a three count complaint alleging misconduct by an attorney with the rather unusual last name of Cahnmann.
Count One alleges that the attorney copied a judge's calender without permission and falsely denied that he had done so:
On a date between October 19, 2007 and November 1, 2007, Respondent went to the desk of Shirley Vinson, the receptionist/secretary for Judge Gramlich and other judges whose offices were located on the fifth floor of the Sangamon County Building. Her desk sat in an anteroom outside the judges’ chambers; the anteroom is not generally accessible to the public. Access is gained to the anteroom either by buzzing a door to be admitted from the hallway, or by going through doors located behind the bench in the courtrooms on the fifth floor.
Vinson was not present when Respondent approached her desk. He looked at Judge Gramlich’s calendar, which Vinson kept on top of her desk. The calendar was not a public document. Vinson kept Judge Gramlich’s personal appointments as well as court matters on the calendar.
Respondent paged through the calendar to the page dated March 1, 2007. Respondent saw that the page reflected an entry at the 11:45 a.m. time slot written as "93D554 – Samuel." The written entry had a line drawn through it.
Respondent picked up the calendar, went to the copier located several feet behind Vinson’s desk, and made a copy of the March 1, 2007 calendar page. He then returned the calendar to the top of Vinson’s desk.
Count Two alleges that the attorney solicited oral sex from two undercover police officers.
Count Three alleges misconduct in the Sangamon Copunty Correctional Facility:
On November 6, 2002, Correctional Officer Wendy Smysor operated the control room at the Sangamon County Correctional Facility. She asked Respondent to sign the log-in book. Respondent signed the log sheet as "atty."
Correctional Officer Melissa Pettus escorted [the client] to an interview room. Respondent insisted to Pettus that the door to the interview room be closed, telling her that leaving the door open would violate the attorney-client privilege. Pettus, after consulting with supervisors, complied with the request and closed the door to the interview room.
Correctional Officer Jay Hawks entered an observation room which was adjacent to the interview room; the observation room permitted a person standing in it to view the occupants of the adjacent interview room through a two-way glass partition.
In the interview room, Respondent began kissing and embracing [the client]. At one point he rubbed her back, and at another point he grasped her buttocks.
Hawks observed the above-described behavior from the observation room. As the intimate behavior continued, Correctional Corporal Tammy Powell entered the observation room. When she observed the conduct between Respondent and [the client], she entered the interview room and told Respondent that the visit was over.
Respondent used his status as [the client's] attorney to obtain access to [her] for the purpose of having personal physical contact with her.
SJ-R.com reports that the attorney was a Springfield Alderman at the time of his arrest. (Mike Frisch)
Hold On A Minute
The Florida Supreme Court has held that an order compelling production of the defendant insurance company entire litigation file by a trial court invaded the attorney-client privilege. The suit was initiated by a medical doctor after the insurance company had terminated monthly disability payments.
The trial court must conduct an in camera inspection of documents
to determine whether the sought-after materials are truly protected by the attorney-client privilege or whether the attorney was consulted to assist in the investigation or evaluation of the underlying claim... on remand, it is essential that an in camera inspection take place to discern whether the objected-to documents are discoverable under the principles we announce.
The Supreme Court of the State of Washington has held that a defense attorney's erroneous advice to a non-citizen regarding the deportation consequences of a guilty warranted reversal of the ensuing conviction. The court's majority opinion framed the issue:
The question presented is whether, in light of the United States Supreme Court's decision in Padilla v. Kentucky, ___ U.S. ___, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), a noncitizen criminal defendant can be denied the right to effective assistance of counsel when the defense attorney erroneously assures the defendant that the deportation consequence of a guilty plea can be mitigated.
A Tennessee attorney has been reinstated from a temporary suspension resulting from non-compliance with a monitoring agreement with the Lawyers' Assistance Program. A hearing panel had recommended reinstatement with a condition that he "submit to hair tests at least every two (2) months" and continue counseling with the program. (Mike Frisch)
The Wisconsin Supreme Court denied a petition for reinstatement based on findings of an appointed referee:
The referee found that Attorney...has practiced law during her suspension; has failed to fully comply with the terms of the order of her suspension; and has health issues that remain open and need attention. No appeal challenging the referee's findings and conclusions has been filed.
March 16, 2011
Another Chance To Claim Malpractice
The New Jersey Supreme Court held that a legal malpractice suit was not "precluded by disposition of earlier lawsuits or otherwise barred by the entire controversy doctrine."
The plaintiffs had sued the attorneys for the estate of their father. The Law Division granted the defendant's motion to dismiss. The Appellate Division reversed and was affirmed here. The court concluded that a claim of malpractice may have been raised in the probate proceedings, the plaintiffs did not have a full and fair opportunioty to litigate the malpractice claims. (Mike Frisch)
March 15, 2011
The Illinois Review Board has proposed a suspension of two years and until further order ("UFO") of an attorney with a record of prior discipline. The board on sanction:
Respondent’s failure to resolve the practice management problems that have led to his misconduct is especially troubling. In the past, Respondent attributed his neglect of client matters to his overly busy practice, yet failed to make any changes to prevent further neglect. He completed an ethics course intended to improve his understanding of his obligation to communicate properly with clients, yet ignored all of [his client's] requests for information. The record shows that he has a history of overextending himself to the point that he cannot keep up with all of his responsibilities. Because Respondent’s prior discipline has not had the desired effect of improving his office practices, it would be appropriate to require him to demonstrate that he has implemented changes before he is allowed to resume representing clients.
In this case, Respondent was aware that the ARDC was investigating the...matter prior to June 2, 2009, when he appeared for a sworn statement. From that point forward to the hearing, which occurred on March 31, 2010, he did nothing to demonstrate that he understood the nature of his misconduct. He took no active steps to earnestly demonstrate that he was taking corrective action of some kind. He says he will implement changes, but he had an opportunity to prove it and did nothing. Promising to change and failing to change is the pattern of his conduct in four disciplinary cases.
The Hearing Board further found that Respondent’s lack of cooperation with the Administrator aggravated his misconduct. We agree. Respondent failed to answer the complaint, which resulted in the allegations against him being deemed admitted, and did not appear for two pre-hearing conferences prior to becoming ill. This non-cooperation and his lack of cooperation in his second disciplinary proceeding demonstrate a pattern. When an attorney is inattentive to his own disciplinary proceedings, especially the fourth time through the system, it indicates "that he is not capable of representing clients in a responsible and conscientious manner." (citations omitted)
The hearing board that considered the matter had recommended a two-year suspension and completion of a course, rather than UFO. (Mike Frisch)
A Single Censure
The New Jersey Supreme Court censured an attorney who had mishandled two retained cases. The court followed the recommendation of its Disciplinary Review Board, which noted:
In this case, we have weighed the fact that respondent has no history of discipline, that he encountered problems with his practice when he and his wife, who was his office manager, began having marital problems, and that respondent is remorseful. Against these factors, we took into account that two client matters were involved, that respondent made misrepresentations to both clients, and that, in both matters, even though respondent admitted his conduct, his justification for his actions did not ring true.
The censure was for both cases. One board member voted to impose a censure in one matter and a reprimand in the other. (Mike Frisch)
The Vermont Professional Responsibility Board has admonished an attorney for lack of diligence in a bankruptcy matter, failure to communicate with the client and failure to respond to the ensuing bar complaint.
The board found significant mitigation:
Respondent suffers from Post-Traumatic Stress Disorder (PTSD) and depression. His symptoms first appeared in 2002, and in September of 2009 he sought treatment from a psychologist. Respondent is currently participating in therapy and is taking medication for treatment of his PTSD and depression.
By late 2005, Respondent’s illness caused him to avoid stressors and making decisions. This impacted his ability to practice law to the extent that he actively sought employment outside the law. In 2009, he left the law altogether and is currently working as the executive director of an organization which provides social services to area residents.
In June of 2009, Respondent’s wife suffered a grand mal seizure while at a hospital for tests. She was diagnosed with an inoperable brain tumor. When medication failed to stop the seizures, she was placed in a medically induced coma for a week. His wife’s health adversely affected Respondent’s ability to focus on his clients.
Respondent did not renew his license in July of 2010, and as a result his license has been suspended on an administrative basis by the Supreme Court’s Attorney Licensing Office. Respondent has no present intention to renew his license to practice law.
A.G. [the client] secured the assistance of another attorney to assist her with her bankruptcy. Other than her frustration at the delay, she did not suffer any actual harm.
Respondent has never had a sanction imposed against his license to practice law.
In Vermont, an admonition does not identify the sanctioned attorney by name. (Mike Frisch)
Prosecutor Goaded Defense To Seek Mistrial, Double Jeopardy Bars Retrial
The South Carolina Supreme Court reversed a murder conviction, concluding that the prosecutor had "goaded" defense counsel into seeking a mistrial and then securing the conviction at a second trial. The court concluded that the second trial was barred by double jeopardy.
The court recited the facts:
It is undisputed that Petitioner shot and killed his sister's boyfriend, Robert Lee Stewart (Victim). In October 2003, Petitioner stood trial for murder. At trial, Petitioner claimed self-defense. The first trial ended when the judge granted Petitioner's motion for a mistrial. When Petitioner was tried again in 2005, he moved to dismiss based on double jeopardy. The circuit court judge at the second trial denied the motion and the jury convicted Petitioner of murder.
During the first trial, there was a great deal of animosity between the solicitor and defense counsel. Prior to questioning the first police witness, the solicitor explained that there was a videotape made of the crime scene that included graphic images of Victim's body. The solicitor redacted the original videotape to erase the graphic images and presented defense counsel a redacted copy on the day of trial. However, the original videotape, including the graphic images of Victim's body, was shown to the jury. Petitioner's counsel moved for a mistrial and dismissal with prejudice based on prosecutorial misconduct. Counsel for defense argued the solicitor's case was not going well and the State was now privy to his defense tactics. The solicitor claimed the tapes were switched unintentionally and inadvertently. The court found the explanation offered by the State "shocking" as to why "such a huge, substantial, material piece of evidence would be handled in such carefree fashion . . . ." The circuit court judge admonished the solicitor, but denied the motion for a mistrial issuing a curative instruction that the jury was to disregard the fact that they viewed the body of Victim.
During the solicitor's closing argument, she accused defense counsel of unethical conduct in coaching witnesses and implied to the jury that it was their community duty to convict Petitioner of murder. After the solicitor concluded her closing argument, defense counsel again made a motion for a mistrial. Defense counsel contended a mistrial should be granted based on prosecutorial misconduct in closing argument in that the prosecution accused defense counsel of coaching witnesses, and argued facts not in evidence. Defense counsel ultimately argued that the cumulative effect of the prosecutorial misconduct warranted a mistrial. The circuit court judge charged the jury and then heard arguments on the mistrial motion. The solicitor contended her closing argument was justified by the evidence and was responsive to the defense's closing argument, thus, the mistrial motion should be denied. The jury then sent a note to the judge that it was deadlocked. The judge gave an Allen charge and the jury resumed deliberating. After further deliberation, the jury again reported that it was deadlocked. The judge received the note that the jury remained deadlocked as he was about to rule on the mistrial motion.
The circuit court judge noted he had reviewed the motion for a mistrial, the solicitor's closing argument, and his notes from the testimony. The judge found the statements made about Petitioner's counsel, the exhortation to the jury to convict in order to protect the community, and the introduction of the original videotape warranted a mistrial.
The circuit court judge stated, "In my readings of those opinions it's almost as if . . . this court can infer that the defendant was almost goaded into the position of asking for a mistrial. So based on the totality of the circumstances that [have] occurred in this trial . . . I will declare a mistrial . . . ." The solicitor asked if the mistrial was based specifically on prosecutorial misconduct or the comments in her closing argument. The judge responded, "The comments made in closing arguments, I would consider to be prosecutorial misconduct as well as . . . the video tape. . . . It's the cumulative nature of everything." The State appealed the grant of a mistrial and the court of appeals dismissed the case as not immediately appealable.
Almost two years later, the State retried Petitioner. Petitioner moved to dismiss based on double jeopardy arguing the solicitor at the first trial intentionally goaded him into moving for a mistrial. The circuit court judge at the second trial denied the motion to dismiss. In denying the motion to dismiss that judge made two seemingly inconsistent findings. That judge stated:
I am resolving this motion completely independent of whether or not the prosecutor intentionally goated [sic] the defense into making a motion for a mistrial. . . .
. . . . Even if there had been prosecutorial misconduct, it was the fact that the jury was deadlocked that caused the mistrial.
. . . . So regardless of my analysis of what happened in the first trial, this motion to dismiss is denied because it was the jury's being deadlocked that lead to the manifest necessity that lead [sic] to the mistrial.
Shortly after making the above finding, the circuit court judge also found the following:
I do not find that the prosecutor specifically committed misconduct that was designed to elicit a motion for mistrial from Defendant so that the prosecutor would have another bite at the apple, another time to try the Defendant. I believe that the prosecutor was vigorously trying to win the case and not trying to throw the case in the way of a mistrial. So I am for those reasons, denying the motions [sic] to dismiss based on double jeopardy.
The second trial proceeded and the jury convicted Petitioner of murder. Petitioner appealed to the court of appeals. The court of appeals affirmed the denial of Petitioner's motion to dismiss based on double jeopardy.
The court found that the finding that the prosecutor had not goaded the defense was clearly erroneous.
Details about the decision from FoxCarolina may be found here. (Mike Frisch)
March 14, 2011
Recovery Leads To Reinstatement
The Colorado Hearing Board granted the reinstatement petition of an attorney disbarred in 2002 for, among other things, knowing conversion of client and third-party funds.
The attorney's downfall was his addiction to alcohol. As a result, "his personal and professional life fell apart." He lost his lobbying clients, was divorced and estranged from his family. By 2004, he stated: " my life had come to where I was sleeping in a friend's basement on a pad on the floor with a TV and half a gallon of vodka to keep me company."
After an intervention, he entered a 28 day treatment program and has not had a drink since 2004. He obtained employment and reestablished his lobbying practice. He has been engaged in a number of community service activities and married a woman he met in AA. He also passed the July 2010 Bar exam. (Mike Frisch)
Crimes Lead To Suspension
A summary of a recent disciplinary sanction from the web page of the Massachusetts Board of Bar Overseers:
...the respondent, was admitted to the bar of the Commonwealth on January 11, 1994. On December 8, 2006, the respondent used a debit card from a stolen handbag to purchase an iPod hi-fi speaker system for $366.45 and various items at another store totaling $426.27. On December 19, 2008, the respondent admitted to sufficient facts to the crimes of forgery of a document in violation of G. L. c. 267; two counts of uttering a false writing in violation of G. L. c. 267, § 5; two counts of credit card fraud over $250 in violation of G. L. c. 266, § 37C(e); and larceny over $250 in violation of G. L. c. 266, § 30(1). The matters were continued without a finding.
On May 17, 2010, the respondent admitted to sufficient facts to negligent operation of a motor vehicle, and she was found in violation of probation. The respondent was continued on probation until May 18, 2011, with conditions requiring her to remain free of illicit drugs and alcohol and submit to testing.
On March 25, 2009, the Supreme Judicial Court for Suffolk County (Cowin, J.) entered an order temporarily suspending the respondent from the practice of law effective June 1, 2009. The respondent failed to comply with the order of temporary suspension, and bar counsel petitioned to hold the respondent in contempt. On December 16, 2009, the respondent fully complied with the order.
The respondent’s criminal conduct violated Mass. R. Prof. C. 8.4(b), (c), and (h). Her failure to comply with the order of temporary suspension and S. J. C. Rule 4:01, § 17, and her violation of probation violated Mass. R. Prof. C. 3.4(c) and 8.4(d).
On June 28, 2010, bar counsel filed a petition for discipline. On December 22, 2010, the respondent filed an amended answer to the petition admitting to the allegations. The parties stipulated to a sanction of suspension for three years retroactive to May 17, 2010, the date of the respondent’s last conviction. In mitigation, none of the respondent’s conduct was related to the representation of a client.
On January 10, 2011, the Board of Bar Overseers voted to accept the stipulation of the parties and recommend that the respondent be suspended from the practice of law for three years retroactive to May 17, 2010. On January 28, 2011, the county court entered an order suspending the respondent for three years retroactive to May 17, 2010, the date of the respondent’s last conviction.
Name on Loan To Debt Collection Agency, Attorney Pays Price
The New Jersey Supreme Court imposed a one-year suspension of an attorney "who did not maintain a bona fide attorney-client relationship with [a debt] collection agency, but rather merely loaned his name to it, in exchange for a monthly payment."
The attorney was admitted in 1965. He maintained a practice at the former business premises of the agency. He has a record of prior discipline of a six-month suspension in 1988 for misconduct as the municipal attorney for Dover Township and a three-month suspension in 2001.
The matter was heard by a special ethics master, who had recommended a two-month suspension. The Disciplinary Review Board (in an 87 page report) had proposed the one-year suspension adopted by the court. (Mike Frisch)
Lacking Skills Training
The New Jersey Supreme Court reprimanded an attorney who had bounced an escrow check. The attorney made an accounting error when closing the account. He promptly restored the funds to make the check good. The District Ethics Committee found that "the overdraft resulted from an accounting error and not from [his] desire to enrich himself." He also had cooperated with the investigation.
The attorney was suspended in 2008 for failure to pay a fee arbitration award and non-payment of the client security fund assessment. He remains suspended.
The attorney had previously been audited on a random basis in 2006 and not fully complied with recordkeeping obligations. He "testified that, at the time that he was admitted to the bar [in 1974], attorneys who had completed a judicial clerkship, like him, did not have to take a skills and methods course and that he was never made aware of his recordkeeping responsibilities." (Mike Frisch)
The Pennsylvania Supreme Court rejected the proposed sanction of disbarment by its Disciplinary Board and imposed a five-year suspension of an attorney admitted in 1984.
The attorney was transferred to inactive status in 1996 for failure to complete CLE obligations. In 2007, he was arrested in Illinois and charged with forgery of a prescription for 90 tablets of Ritalin, purportedly signed by Dr. Steve Andrews. He pled guilty to a felony and was placed on probation. The conviction violated probation imposed for drug possession in 2006.
The attorney reported the conviction to disciplinary authorities but had not otherwise participated in the proceedings. (Mike Frisch)
Calling Jackie Chiles
A Starbucks and the owner of its premises won summary dismissal of a personal injury claim by an infant plaintiff whose injuries allegedly occurred in the following circumstances:
The infant plaintiff allegedly sustained injuries when a cup of hot tea spilled on him at premises leased by the defendant Starbucks Coffee Company (hereinafter Starbucks) from the owners, Allen Brafman and Edith Brafman (hereinafter together the Brafmans). Immediately prior to the accident, the infant plaintiff's nanny allegedly was wheeling him in a stroller up a ramp with her right hand, and balancing the cup of tea on a plate with her left hand. The plaintiffs commenced this action against Starbucks and the Brafmans, alleging that the accident was caused by a dangerous and defective condition on the premises. The Brafmans moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the ground that they were out- of-possession landlords who owed no duty of care to the plaintiffs, and Starbucks cross-moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. The Supreme Court denied the motion and the cross motion. We reverse.
Starbucks established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiffs were unable to identify a dangerous or defective condition actually causing the accident. In opposition, the plaintiffs failed to raise a triable issue of fact.
Since the affidavit of the plaintiff's nanny was insufficient to raise a triable issue of fact as to whether the ramp upon which the she allegedly wheeled the stroller was negligently designed, installed, or maintained, we need not address Starbucks' contention that the Supreme Court, in denying its cross motion for summary judgment, erred in considering that affidavit because the nanny's identity was not properly disclosed by the plaintiffs in their responses to the defendants' demands for disclosure or a preliminary conference order. However, the affidavit of the plaintiffs' expert, which the plaintiffs also submitted in opposition to the cross motion, should not have been considered by the Supreme Court, since that expert witness was not identified by the plaintiffs until after the note of issue and certificate of readiness were filed, attesting to the completion of discovery, and the plaintiffs offered no valid excuse for the delay. Accordingly, the Supreme Court should have granted Starbucks' cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. (citations omitted)
March 13, 2011
Future Ed 3 | NYLS, April 15-16
[Notice from Elizabeth Chambliss at NYLS]
Help Invent the Future of Legal Education
We started our contest of ideas at New York Law School in April, 2010. Participants presented thirty proposals at Harvard Law School in October, 2010. Now they’re returning to report on their progress and present competing blueprints for change.
Want to be part of this conversation? Please join us! Registration is open. Space is limited. For more information see www.nyls.edu/futureed.