Friday, May 20, 2011

A Mortal Blow?

The District of Columbia Court of Appeals has inflicted what I fear to be a death blow to the cause of consent bar discipline by agreeing with the recommendation of its Board on Professional Responsibility to reject a one year suspension with six-months stayed in a matter where Bar Counsel and the Respondent attorney had agreed that the evidence established negligent misappropriation. Notwithstanding a hearing committee's favorable recommendation, the court had concerns that the evidence might warrant more severe discipline.

The decision consigns the case back into the abyss of the D.C. bar disciplinary system, likely not to be heard from again for years. The attorney will be able to continue to practice for those many years and will (in my humble view) get nothing more as discipline when 2015 rolls around.

Notably, the conduct at issue was concluded by 1999 and has been under investigation by Bar Counsel since 2002. No need to rush to judgment here.

I know that the board cares not a whit about delay in disciplinary matters and fails to comprehend the benefits of the exercise of prosecutorial discretion. I had hoped that the court would have the merits of consent discipline in mind. At least in this case, the board won. I am confident that the board's office is popping champagne corks to celebrate their victory over common sense and efficiency.

All that was lost is the most important tool needed for moving cases to a prompt and fair conclusion.

Under D.C. law, an attorney found to have engaged in intentional or reckless misappropriation faces presumptive disbarment. Negligent misappropriation draws a sanction like that proposed here. My substantive concern is with the various holdings in past cases of misappropriation, which make the distinctions at issue here as clear as Mississippi mud.

I'd have a lot more sympathy for the position of the court and the board if either tribunal made these distinctions sufficiently clear for meaningful application.

There is much more to this story and I feel a law review article coming on. I also am profoundly grateful that I no longer work in a broken and dysfunctional system that purports to protect the public.

One thing is clear--it is easier for a criminal defendant to plead guilty to felony crimes in the District of Columbia than for an attorney to agree to a disciplinary offense where the sanction is less than disbarment. There is something deeply wrong about that state of affairs. (Mike Frisch)

May 20, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Stayed Removal Of South Dakota Judge

A circuit court judge is the subject of the first removal from office imposed by the South Dakota Supreme Court in its 121 years. The court  ordered his involuntary removal from the bench. The order of removal was stayed on certain conditions, as the court found the judge to be capable of rehabilitation.

The trouble started when the judge referred to the Rapid City police as "a bunch of racists" during a police officer's testimony. The ensuing investigation revealed a pattern of behavior meriting sanction.

The judge had engaged in a pattern of rude and inappropriate behavior that including his calling accused juveniles "peckerheads," commenting that the law was better off before women became lawyers and making remaks about Native American artwork on the walls of his courtroom to the effect of "this is where I hang my Indians."

He also called an attorney an "asshole" in chambers and then flipped him the bird from the bench.

The court noted that the attorneys who testified against the judge had shown "significant courage." The court also noted letters from a number of attorneys to the effect that the judge was "no worse than some other judges" they appear before.

The judge will be suspended for six months without pay.

This earlier coverage of the matter is from the Wall Street Journal. (Mike Frisch)

May 20, 2011 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Thursday, May 19, 2011

Dissent: Added Clutter Hurts Small Firms

The Michigan Supreme Court has adopted a  new version of Rule 7.3 that prohibits solicitation of accident victims within 30 days of the accident or injury. The rule will implement regulation that is permissible in light of Florida Bar v. Went For It.

There are dissents. The views of Justice Markman are notable:

Although I am not unsympathetic with the sentiments underlying the new rule, the more I reflect upon the rule, the more I am inclined to believe that it will simply add to the clutter of court rules that have already been sufficiently cluttered over the past decade, and without doing anything significant to address particular problems of lawyer advertising. Essentially, as in other states, the floodgates have been opened in Michigan concerning lawyer advertising, with fortunes now spent in this regard on television, radio, billboards, and 1-800-LAWSUIT telephone numbers. In the face of
this transformation of the advertising environment, this Court now issues a new rule focused upon which of the four corners of a postcard soliciting clients the words “advertising material” must appear. The upshot is that those lawyers, and law firms, which engage in client solicitation by the hundreds of thousands will continue to engage in business as usual, while those lawyers, and law firms, which engage in client solicitation one person at a time will become more heavily regulated. Further, the latter group will be prohibited during a 30-day period from soliciting business from certain categories of potential clients, while the former group will be allowed to continue soliciting such business during the same period. For better or for worse, the United States Supreme Court has redefined the rules of the game for lawyer advertising, and I would not indulge in the illusion that by the measure this Court adopts today, we are doing anything of consequence to improve upon these rules. Instead, all that we are doing is placing the small law firm at an increasing economic disadvantage to the large law firm in terms of client solicitation. I see little point to the new rule, and would not adopt it.

Notwithstanding these well-articulated concerns, the new Rule 7.3 takes effect on September 1.

I'm glad that the jurisdiction where I am licensed would never adopt such a rule. D.C. has no Rule 7.3.

Our Rule 7.1 has virtually no limitation on in-person solicitation except for:

... (d) No lawyer or any person acting on behalf of a lawyer shall solicit or invite or seek to solicit any person for purposes of representing that person for a fee paid by or on behalf of a client or under the Criminal Justice any present or future case in the District of Columbia Courthouse, on the sidewalks on the north, south, and west sides of the courthouse, or within 50 feet of the building on the east side.

Ah, the memories brought back by this little wrinkle in the D.C. Rules.

You can imagine the lawyers sitting at 5th and D streets across from the Indiana Avenue courthouse. Jack's (one of many names of the bar located there) provided a ideal place to sip a beer and look for a likely candidate crossing Indiana (either before or after arraignment). Particularly if someone had left the courthouse without accompanying counsel, there might be a new client crossing the court's delawyerized zone. (Mike Frisch)

May 19, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Former Judge Tried To Vacate Convictions He Imposed

The Indiana Supreme Court has imposed a 30 day suspension of an attorney for misconduct stemming from his service as a superior court judge.

As a judge, the attorney presided over two cases involving drunk driving by one T.W. He sent T.W. to jail for 365 days.

T.W. contacted him after his release and when the attorney had returned to private practice. The attorney ghostwrote a pro se petition to vacate the convictions that he himself had imposed. He attended the hearing on the petition and denied (falsely) his role in the motions.

He was cooperative and expressed remorse. (Mike Frisch)

May 19, 2011 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

No Appealable Order In Divorce Disqualification

The Ohio Supreme Court web page reports:

The Supreme Court of Ohio ruled today that the denial of a motion to disqualify opposing counsel in a divorce proceeding is not a “final” order subject to immediate appeal.

The Court’s 6-0 decision, which affirmed a ruling by the 9th District Court of Appeals, was authored by Justice Yvette McGee Brown.

The case involved a divorce action between Jeffrey R. Kissinger and Beth A. Wilhelm-Kissinger of Summit County. During the proceedings, a dispute arose regarding allegedly illegally obtained and privileged email messages between Kissinger and his attorney that Wilhelm-Kissinger had apparently taken from Kissinger’s computer and given to her attorney. Kissinger moved the Summit County Court of Common Pleas Domestic Relations Division to disqualify Wilhelm-Kissinger’s attorney.  After a hearing in which Wilhelm-Kissinger’s attorney reported that he never sought or reviewed any of the email messages in question, the trial court denied the disqualification motion. 

Kissinger appealed. The 9th District Court of Appeals dismissed Kissinger’s appeal, based on its determination that it had no jurisdiction to hear the case because the denial of a motion to disqualify opposing counsel was not a final, appealable order under R.C. 2505.02(B)(4). In response to a motion by Kissinger, the 9th District certified a conflict between its ruling in this case and a 2003 decision of the 10th District Court of Appeals, Crockett v. Crockett, in which that court held that denial of a motion to disqualify opposing counsel was a final, appealable order.

The Supreme Court agreed to review the case to resolve the conflict between appellate districts.

Writing for the Court in today’s unanimous decision, Justice McGee Brown noted that under the applicable statutory criteria for a final appealable order, Kissinger must show that the trial court order denying his motion was made in a “special proceeding” and that it affected a substantial right.  Since prior Supreme Court decisions have held that a divorce action qualifies as a “special proceeding,”  Justice McGee Brown said the remaining question for the Court to answer was whether denial of a motion such as Kissinger’s in this case affects a substantial right.

She wrote: “An order affects a substantial right for the purposes of R.C. 2505.02(B)(2) only if an immediate appeal is necessary to protect the right effectively. ... Covered rights include any ‘right that the United States Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce or protect.’ ... We have previously held that a decision granting a motion to disqualify opposing counsel is a final, appealable order that a party deprived of counsel can appeal immediately. ... We now address whether in the special proceeding of divorce, an order denying a motion to disqualify opposing counsel also qualifies as a final, appealable order under R.C. 2505.02(B)(2).”

“Orders granting and denying disqualification of counsel differ in two key respects. First, an order granting disqualification immediately and definitely affects the party it deprives of chosen counsel; the purpose of appealing such an order is to prevent the removal itself.  By contrast, an order denying disqualification, standing alone, affects no right held by the unsuccessful movant because there is no substantial right to disqualify opposing counsel. Second, an order granting disqualification typically imposes a permanent effect because it is unlikely to be reconsidered as a trial progresses. ...Therefore, a grant of a motion to disqualify counsel must be appealed immediately or its effect will be irreversible.”

“An order denying disqualification, however, lacks a similarly permanent effect. ...  That order may be revisited throughout trial, and the party seeking disqualification may pursue other avenues, such as disciplinary proceedings, to address any improprieties that occur. With these differences in mind, we cannot conclude that an order denying disqualification in the divorce context requires immediate appeal to ensure the protection of a substantial right. Accordingly, although it occurs in a special proceeding, such a denial is not a final, appealable order under R.C. 2505.02(B)(2).”

Justice McGee Brown’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp. Chief Justice Maureen O’Connor did not participate in the Court’s deliberations or decision in the case.

The opinion is attached here. (Mike Frisch)

May 19, 2011 in Professional Responsibility, The Practice | Permalink | Comments (1) | TrackBack (0)

Wednesday, May 18, 2011

Harvard Law Review adds eBook editions: Kindle, Nook & iPad formats

Posted by Alan Childress

The newest issue of the Harvard Law Review (number 7, May) is now available in ebook formats at Amazon Kindle (and Amazon UK), at Barnes & Noble for Nook, and on iPad using such apps or soon at iTunes bookstore. It's out of the Quid Pro Books digital project [as regular readers of this blog might guess]. My recollection is that there was a time -- before technology and budget cuts -- when many individuals, not just libraries, ordered copies of favorite law reviews (or had issues routed to them) and read each issue like a book. In a way, the ereader technology puts it back together again as a whole and makes the volume easily available to individual readers, even on the go (or especially on the go, for trains and planes), and on devices tiny and large. Having HLR available this way is in a sense "traditional," or at least could become a new tradition to non-institutional readers, I believe.

Number 7's contents:

Article, "Article III and the Scottish Judiciary," by James E. Pfander and Daniel D. Birk
Book Review, "Constitutional Alarmism," by Trevor W. Morrison

Note, "A Justification for Allowing Fragmentation in Copyright"  

Note, "Taxing Partnership Profits Interests: The Carried Interest Problem"

Recent Case, "Corporate Law — Principal’s Liability for Agent’s Conduct"

Recent Case, "Administrative Law — Retroactive Rules"
Recent Case, "Federal Preemption of State Law — Implied Preemption"

Recent Case, "Labor Law — LMRA"

Recent Legislation, "Corporate Law — Securities Regulation"

Recent Publications

UPDATE: Nice squib from Paul Caron at TaxProf.

May 18, 2011 in Books, Childress, Web/Tech | Permalink | Comments (2) | TrackBack (0)

Flat Fee Not Earned On Receipt

The Michigan Attorney Discipline Board affirmed a panel reprimand, rejecting the attorney's argument that his "flat fee" was earned on receipt notwithstanding his failure to follow through on the undertaking:

Respondent's primary argument is that "there can be no unused [or unearned] portion of a 'flat fee' " This is simply erroneous as a matter of law. It would be absurd for the law to provide, as respondent argues, that " [t]he total fee was due (earned) the moment the attorney began any work on the file." This would enable an attorney to begin an agreed upon representation, abandon it, and retain the entire fee as if the whole of the work had been completed. For obvious reasons, this has never been the law...

(Mike Frisch)

May 18, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

From Albany Law School To Albanian Practice

The New York Appellate Division for the First Judicial Department has ordered a four-year suspension of an attorney convicted of immigration fraud. The facts:

Respondent's conviction of one count of conspiracy to commit immigration fraud was based on his assisting an FBI undercover officer, posing as an applicant for political asylum from Albania, to manufacture false and fraudulent facts to be submitted as part of his political asylum application. Respondent and his wife, convicted as co-conspirators, coached the undercover in creating false stories of persecution in support of the application.

Respondent, a 1989 graduate of Albany Law School, started his own practice in 2001. By 2009, 90% of his practice consisted of immigration work and many of his clients were ethnic Albanians. Respondent did not speak Albanian, but his nonlawyer wife...a native of Albania who immigrated to the United States in 2001, assisted in his office by completing immigration forms and translating for non-English speaking ethnic Albanian clients. Although the undercover specifically denied suffering any persecution, respondent indicated that in order to obtain asylum the "client" must demonstrate political problems and provided examples of persecution which could be included on an application. Respondent emphasized the need to act quickly because the law was about to change. The undercover paid respondent $500. The receipt provided by respondent indicated that the undercover was required to pay an additional $1,500 to have the asylum application filed.

While the Hearing Panel placed significant weight upon the fact that the application was never filed, the Committee urged that the reason for that was the failure of the undercover to return with the $1,500 fee. Respondent claimed that he chose not to file the application upon reviewing his wife's handwritten notes indicating an entry date of August 19, 2003, whereas the computer entry reflected a November 2004 entry date for the undercover.

The Hearing Panel identified five mitigating factors which the Committee accepted. They are: (1) respondent had never been the subject of any prior finding of discipline or misconduct during his 20 years of practice; (2) respondent cooperated fully with the Disciplinary Committee; (3) six character witnesses testified regarding respondent's reputation for honesty and integrity in the community and nine letters attested to his good character; (4) respondent has given pro bono assistance to immigrants and testified regarding his successful efforts, as a cancer survivor, to assist an ethnic Albanian family, whose son had cancer, to obtain asylum; and (5) the conviction has ruined respondent financially and professionally. The Panel credited respondent's claim concerning his reason for not filing the asylum application, and noted both that only one instance of criminal conduct had been charged and the federal sentencing judge determined that no enhancements were warranted.

The court held that the conviction involved a "serious crime" but did not require disbarment. (Mike Frisch)

May 18, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The Grandma Ruse

An Assistant Attorney General in Illinois is the subject of bar disciplinary charges for alleged conduct in the course of an investigation into compliance with state law.

The defendant in the underlying matter(who was represented by counsel) has the interesting biblical last name of Onan. The investigation involved a condo for seniors (Onan Senior Suites) that was charged with violations of the Illinois Environmental Barriers Act. The AAG sought to establish that the condo had four stories, which would bring it under the requirements of the Act.

The allegations:

Because the Illinois Environmental Barriers Act required that buildings be at least four stories for the Act to apply, on or about March 18, 2008, Respondent developed a plan to visit Onan Senior Suites to determine whether the garage level of Onan Senior Suites could be viewed as a storey, thereby bringing the building within the scope of the Illinois Environmental Barriers Act.

On or about March 18, 2008, Respondent, Ipjian [another attorney with the AG's office], and Jamie Frankic-Berkett, a Disability Specialist for the Disability Rights Bureau, visited Onan Senior Suites, to determine whether the building was accessible to people with disabilities and to determine whether the garage was finished or unfinished. Prior to arriving on March 18, 2008, Respondent had informed Ipjian that they would only view areas of the building that were open to members of the public. Although Respondent and Ipjian had appeared in court in relation to case number 04 CH 1630 on March 18, 2008, and Respondent knew that Mr. Nordigian represented the defendants in that matter, Respondent did not give Mr. Nordigian notice of his intention to visit Onan Super Suites that day, nor did he otherwise inform Mr. Nordigian of his plan to view the garage for purposes of determining whether it could be considered a storey for purposes of the Illinois Environmental Barriers Act.

Upon arriving to Onan Senior Suites on March 18, 2008, and discovering that the doors to the building were locked, Respondent rang the doorbell and informed the building manager that he and Ipjian were siblings, and that they were interested in viewing the building because Respondent's grandmother was interested in moving there from Wisconsin.

Respondent's statements to the building manager, as described...above, were false, and Respondent knew they were false, because Respondent and Ipjian are not siblings and because Respondent's grandmother was not interested in moving to the building from Wisconsin. His statements were intended to induce the building manager to give Respondent and Ipjian access to areas of the building that were not open to the public, so that Respondent could gain information to assist him in proving his theory that the Onan building was not accessible to people with disabilities.

At no time did Respondent inform the building manager that he and Ipjian were the attorneys prosecuting the case against the owners of Onan Senior Suites, case number 04 CH 1630.

Based upon the information that Respondent provided to the building manager regarding his grandmother's purported desire to move to the building, the building manager showed Respondent and Ipjian areas of the building that were not accessible to the public, including the basement, a one-bedroom unit, and a two-bedroom unit.

The complaint alleges that the conduct violated, among other rules, Rules 4.1and 4.4. (Mike Frisch)

May 18, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 17, 2011

An aside about some new digital publications, one actually on topic

Posted by Alan Childress

The one on-topic features NYU's Stephen Gillers' new article on the professional responsibility of lawyers who hold or come across real evidence in a case, such as guns, presidential tapes, and drugs. It is part of the current issue of Stanford Law Review, which also has studies of forensic use of DNA in criminal cases to establish familial ties, fixing unfair contracts, and amicus briefs in the Supreme Court where a party below has abandoned the case. I helped the SLR editors bring it to ebook formats in the Quid Pro project I have written on before; here are links to its Amazon Kindle or B&N Nook formats (and at iTunes and Smashwords). Steve's abstract:

A criminal defense lawyer may need to read a document, test a weapon, or analyze a substance in order to advise a client. Or there may be no such need but a client may show up at a law office with an illegal weapon, contraband, or stolen property. In either event, what should a lawyer do with the item following any evaluation? What should she do if her client reveals where a weapon, contraband, or stolen property is hidden? Some cases say that a lawyer who receives or retrieves an item of real evidence must give it to the authorities after examining it. But because the item may implicate the client in a crime, the client may instead withhold it or the lawyer may refuse to accept it, even if the lawyer needs to evaluate it. Or a lawyer may choose not to retrieve a hidden item if she must then deliver it to the authorities. Other cases say that after evaluation, a lawyer may return an item to the source if possible. But is that the right rule when the item is stolen property, a dangerous weapon, or drugs? And what if return is not possible? This Article argues that the holdings of these cases, and secondary authorities that agree with them, are wrong. They impede the need for informed legal advice. They frustrate return of stolen property. And where the item is a weapon or drugs, they endanger public safety. This Article proposes solutions that avoid these results while protecting the legal rights of clients and the interests of law enforcement and the public.

In addition, new releases this week in ebooks include an all-new book, Brothers at War (on which I will writeBookCoverAltalena (2) more when the paperback is widely available in June): historian Jerold Auerbach explores the Altalena incident of 1948, where Israeli commandos destroyed an Israeli ship bringing arms to Israel, pursuant to a ceasefire agreement. The surreal event and deaths of Altalena's sailors could have led to civil war in the new country. The cover photo, the actual shelling and evacuations, is by the famed war photographer Robert Capa. Here are Kindle or Nook links.

Also, sociologist Philip Selznick's foundational study Leadership in Administration is re-released in ebook formats (Nook; Kindle). It jumpstarted executive-leadership courses and programs, and is widely used in classes today in business, public policy, and military leadership. The digital edition adds a substantive, explanatory new Foreword by Robert Rosen of the University of Miami. Proceeds benefit Dr. Selznick's scholarship at the JSP Program at Berkeley law.

Finally, my own introduced edition of O.W. Holmes' The Path of the Law, in paperback and many ebook versions. Stay tuned Thursday for pretty big news on this venture.

May 17, 2011 in Blogging, Books, Childress, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Lawyering Under The Influence

The Illinois Administrator has filed a complaint that contains the following allegations:

At approximately 9:00 a.m., on October 1, 2010, Respondent appeared in the circuit court of Hardin County, Illinois, with the intention of entering his appearance for a defendant in a criminal case.

When Respondent entered the courtroom, he smelled of alcohol. While waiting for the defendant’s case to be called, Respondent slept at counsel table and then staggered when called to the bench by the presiding judge, the Honorable Paul Lamar.

Judge Lamar questioned Respondent about his alcohol use and Respondent denied using alcohol that morning. Respondent agreed to submit to a Breath Alcohol Content ("BAC") test, which showed a breath alcohol content of .06.

Judge Lamar subsequently held a contempt hearing and found Respondent in direct criminal contempt. The judge sentenced Respondent to be held in the Hardin County jail until Monday, October 4, 2010, at 10:00 a.m. The judge subsequently modified the contempt order to allow Respondent to be released on Sunday, October 3, 2010, at 4:00 p.m.

A second count alleges that the respondent failed to report a DUI conviction on his bar admission application. (Mike Frisch)

May 17, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

"Deliberate Avoidance" No Substitute For Intent

The Illinois Review Board has recommended a three-year suspension with the last year stayed in a case where it reversed some of the Hearing Board's conclusions and rejected its proposed sanction.

The Review Board summarized its determinations:

The Administrator charged [the attorney] with conversion and dishonesty related to his mishandling of funds deposited in his client trust account purportedly for the use of one of his clients who, unbeknownst to [him], was engaged in a fraudulent investment scheme. [He] was also charged with employing a disbarred attorney. [He] denied that he committed any misconduct.

The Hearing Board found that [the attorney] converted funds, engaged in dishonest conduct by acting with deliberate indifference to his client's fraudulent activities, assisted a non-attorney in the unauthorized practice of law, and engaged in conduct that prejudiced the administration of justice or tended to defeat the administration of justice or to bring the courts or the legal profession into disrepute. The Hearing Board recommended that [the attorney], who has been disciplined previously, be suspended for three years and until further order of the court.

On review, [the attorney] argued that the evidence did not support the findings of dishonesty, conversion, or conduct that tends to bring the legal profession into disrepute. He further argued that the Hearing Board's recommended sanction is too harsh. The Administrator contended that [he] should be disbarred.

The Review Board recommended that the Hearing Board's finding of dishonest conduct be reversed. In so doing, the Review Board declined to apply the "deliberate avoidance" standard when considering [the attorney's] intent. The Review Board recommended that the Hearing Board's remaining findings of misconduct be affirmed and that [his] license be suspended for three years, with the last year of suspension stayed by one year of probation. One member of the Review Board Panel, specially concurring, expressed that misconduct implicating client trust accounts should not be charged as "conversion," which is not defined in the Rules of Professional Conduct, but should be prosecuted under the specific provisions of Rule 1.15.

(Mike Frisch)

May 17, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, May 16, 2011

Drug Addict's Rhetoric Fails To Prevent Disbarment

An attorney was disbarred by the New York Appellate Division for the Second Judicial Department. The court did not buy his explanation for violations relating to the handling of entrusted funds:

In mitigation, the respondent testified at the hearing that no client ever complained that they were short-changed money. The sole purpose of his escrow account was to safeguard clients' funds between execution of the contract and the closing. When the time for a closing came, he deposited either his own personal funds or funds that he borrowed from others so that clients were paid the full amounts due them.

The Special Referee concluded his report as follows: "Despite respondent's remorse, he remains a drug addict whose plans to seek Bar Assistance are unconvincing, and unfortunately, appear to be nothing more than a manufactured effort to manipulate the process with rhetoric at the twenty-fourth hour."

Absent evidence of the respondent's continued abstinence from drugs and/or alcohol or efforts on his part to enroll in a court-approved Lawyers' Assistance Program, the respondent poses a substantial threat to the public notwithstanding his claims that he is no longer practicing law.

(Mike Frisch)

May 16, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

In Honor of Fred Zacharias

Prof. Samuel Levine at Touro sent us this update, to honor a great person with a memorial prize, so please submit your entries; I think many of us who teach professional responsibility think of Fred, among other times, when we teach students the difference between information protected by ethics as opposed to privilege:

Submissions and nominations of articles are now being accepted for the second annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. To honor Fred's memory, the committee will select from among articles with a publication date of 2011 in the field of Professional Responsibility. The prize is to be awarded at the 2012 AALS Annual Meeting in Washington, DC. Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: The deadline for submissions and nominations is September 1, 2011.

[Alan Childress]

May 16, 2011 | Permalink | Comments (0) | TrackBack (0)

Nothing Short Of Censure

Steve Gillers' post at Legal Ethics Forum on the disconnect between violations and sanctions is borne out in a recent decision of the New Jersey Supreme Court. Note the court's order at the conclusion of the report of the Disciplinary Review Board rejects the proposed sanction and directs the attorney to show cause why disbarment or other discipline should not be imposed.

The attorney had a record of prior discipline and the DRB comments on sanction:

Respondent's ethics record demonstrates that he has not learned from prior similar mistakes. Two of his three prior discipline matters included failing to return client files upon termination of representation. apparently, respondent still insists that he can hold client files hostage after the representation is concluded. Either he has not learned from prior similar mistakes or he refuses to accept the mandates of RPC 1.16(d).

One other significant factor is troubling to us. Respondent's noncooperation with ethics authorities in this instance was egregious. In the investigation stage, he found unjustifiable reasons not to turn over [the client's] files to the investigator, including a misrepresentation that the file was voluminous. Thereafter he failed to attend a mandatory [District Ethics Committee] hearing. Combined, these factors constitute a flagrant affront to the disciplinary system.

Drum roll and the sanction:

We, therefore, determine that nothing short of a public censure is justified in this case.

Glad the court isn't buying. (Mike Frisch)

May 16, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Retired Prosecutors Can't Pack Heat In New Jersey

The New Jersey Appellate Division affirmed an order denying a handgun permit to a retired former assistant prosecutor and deputy attorney general. Statuatory provisions that allow retired law enforcement officers to carry a handgun do not apply to former prosecutors. (Mike Frisch)

May 16, 2011 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Let The Sunshine In

Steve Gillers has an interesting post on disciplinary sanctions over at Legal Ethics Forum. He notes that many decisions describe pretty awful misconduct but arrive at a very lenient destination. I agree with his observations in that regard. Note his final thought:

I sometimes wonder if we should just forget the sanctions and instead require the lawyer to give the court's opinion to all present and prospective clients. It might better protect the public. 

What is really needed to protect (or at least forewarn) the public is ready and easily available online access to complete information about bar sanctions. Not summmaries, but the actual opinions, informal admonitions, hearing reports, review board reports, court decisions--the full package. Like you see on the Arizona web page. Pennsylvania also gets it right.

Unfortunately, the reality is that many jurisdictions make this kind of information either difficult or impossible to find. Until that situation is rectified, bar discipline will be as much about the parochial, self-interested concerns of the Bar rather than (as every opinion on the subject claims) the protection of the public. (Mike Frisch)

May 16, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)