December 24, 2011
A Short Tribute to Larry Ribstein
I was shocked to learn by way of Larry Solum's blog post that my friend and co-author, Larry Ribstein, has passed away. My condolences go out to his family, friends, colleagues, and intellectual sparring partners.
Pardon my feeble attempt at trying to come to terms publicly with the news that someone with whom I was trading e-mails a couple days ago about a new edition of our book is gone. Larry Ribstein was, in a word, inimitable. We were professional but not intimate friends and colleagues. In my dealings with him as a co-author, he could be, simultaneously, visionary (for example, about the future of the legal profession) and stubborn, supportive and infuriating, egotistical and a little vulnerable. I had immense respect for his encyclopedic knowledge of the subject, his willingness to take a position, and the subtleties that underlay what sometimes appeared to be doctrinaire approaches (see, e.g., his work on trust). And he worked non-stop. I work at odd times and hours and, honestly, I can only remember a few times when an email message to him didn't provoke an almost instantaneous response. He wasn't the easiest person in the world to work with, and a thought or a proposal was just as likely to provoke a blunt response in words not too far removed from "that's completely wrong." Or "been there, done that in my article in the XYZ Law Review."
More than anything, he was alive with ideas and personality and pungent observations, whether or not you liked or agreed with them (and sometimes I didn't). I was proud of his praise and thanks when we finished our projects and proud that he was willing to have me as a writing partner.
- Jeff Lipshaw
December 23, 2011
Thank you to Bruce Carton's Legal Blog Watch for selecting us as one of the 10 "most watched" law blogs of 2011.
- Abnormal Use
- Above the Law
- Jonathan Turley
- Legal Profession Blog
- Legal Juice
- Lowering the Bar
- Simple Justice
- Work Matters
We appreciate the recognition and hope to continue to be worthy of our readership.
Since we focus on lawyers who mess up, I'm told that some people read us for the same reason that it's hard not to look at a car accident. (Mike Frisch)
The Word Of God
The Nebraska Supreme Court has rejected a claim of ineffective assistance of counsel in a death penalty case. The defendant alleged that counsel had failed to raise the issue of his competency to represent himself at his sentencing hearing.
The court reviewed the evidence of the defendant's mental state and noted:
We will not assume that hearing messages from God and following God's perceived commands, without more, demonstrates incompetence.
I will assume, without more, that the court did not intend to indulge in political commentary. (Mike Frisch)
Nightmares In Winooski
The dismissal of a suit brought by a city manager against the city attorney has been affirmed by the Vermont Supreme Court.
Plaintiff, the former city manager of Winooski, appeals from the trial court’s summary judgment in favor of the Winooski city attorney. Plaintiff sued the city attorney, individually, for breach of fiduciary duty in the course of municipal infighting over plaintiff’s performance as manager and the city’s decision to dismiss him. Plaintiff’s complaint is that contrary to the fealty owed him by the city attorney, the attorney embarrassed and humiliated him by threatening cross-examination at a municipal hearing concerning his suspension of the city’s police chief, and by signing a disparaging letter and press release calling for his resignation. Plaintiff claims compensation for personal anguish, humiliation, embarrassment, and nightmares resulting from the city attorney’s actions. The trial court determined that the city attorney owed plaintiff no fiduciary duty beyond the attorney’s duty to the city. We affirm.
No basis for liability because:
...there were neither findings nor evidence that the city attorney, implicitly or explicitly, represented plaintiff individually or in any capacity other than as city manager. Moreover, there was no evidence that the city attorney undertook, as a private lawyer, to represent plaintiff. Lacking any lawyer-client relationship, or any other relationship evident between the parties in their private capacities, it cannot follow that the city attorney owed plaintiff a duty of faithful conduct for the personal benefit of plaintiff, as claimed.
The link to the Winooski web page comes from me and does not appear as a link in the opinion. (Mike Frisch)
December 22, 2011
Too Close For Comfort
A recent opinion from the Florida Judicial Ethics Advisory Committee:
May a judge preside over felony arraignments in a county where the judge’s spouse is the supervisor of the State Attorney’s Office?
The inquiring judge will sit in two counties within the same circuit. While in one county, the inquiring judge will preside over the felony arraignment docket. The inquiring judge’s spouse is the supervisor of the State Attorney’s Office in that county.
The committee reasons:
Here, although the inquiring judge states that the prosecutor who will be covering the felony arraignments is supervised by the chief assistant, and not the inquiring judge’s spouse, it remains true that the spouse is the supervisor of that county’s State Attorney’s Office, and that the chief assistant would logically fall under the spouse’s chain of command. Even if the spouse may not be involved in the direct supervision of the attorneys appearing for the felony arraignments and has a limited caseload, as in opinion 01-05, it is clear that the spouse “is the boss” of that county’s State Attorney’s Office. Consistent with the reasoning in Committee opinions 01-05 and 10-09, and the standards set forth in Canons 3E (1)(d)(ii) and 2A, the appearance of impropriety created when the presiding judge’s spouse is in a position of authority over that county’s State Attorney’s office militates in favor of a blanket disqualification from all felony arraignments in that county for the inquiring judge.
Anders on Learning Lawyering Skills from Movies
Kelly Lynn Anders (Creighton) has a new book coming out next month. Here's the publisher's description:
Advocacy to Zealousness: Learning Lawyering Skills from Classic Films includes 26 skills, listed in alphabetical order and appearing in separate chapters, which should ideally be in every lawyer’s toolbox. Each is an example of professionalism, and all are possible for every current or future lawyer to attain or sharpen. They also speak to our needs in the legal profession in the new millennium. Interspersed throughout the text are subtle references to diversity, both in the practice of law, as well as in various film references and storylines.
Each chapter includes a discussion of the skill and its use for lawyers, a synopsis of the film associated with the skill, film discussion questions, and brief exercises for improvement. The format encourages readers to either methodically review each chapter in alphabetical order, or skip around as needs and interests dictate. The book concludes with a comprehensive index.
Images, be they positive or negative, are powerful and long lasting. Those found in popular films are often our only points of reference until we meet the real thing — or assume the role ourselves. Many professors already use film clips in their classes, but, until Advocacy to Zealousness, there was no singular point of reference for films selected solely for the purpose of fostering and sharpening lawyering skills. Legal skills training needn’t be dry or cumbersome. With creativity and planning, it can instead be educational, memorable, and enjoyable — while also remaining comprehensive and relevant — thereby enhancing the practice of law and the legal profession as a whole.
This looks like a lot of fun. Ordering information here. (I mentioned to Kelly that "A Face in the Crowd," one of her featured films, ran on Turner Classic Movies last night. Not the Andy Griffith we came to love in Mayberry!)
The Indiana Supreme Court has suspended an attorney for 18 months without automatic reinstatement for his failure to comply with a former client's reasonable request for a fee accounting that would provide the hours he had worked prior to discharge, charging an unreasonable fee, and his failure to return the file "after its retention was no longer necessary to secure payment of his fee." (Mike Frisch)
Alford Plea Without Merit
A criminal conviction for robbery and other offenses was affirmed by the Maryland Court of Special Appeals.
The court concluded that the trial court had properly found no meritorious reason to grant the defendant's plea to discharge his appointed counsel on the morning of the trial. The trial court conducted an inquiry into the defendant's concerns that is fully recounted in the appellate court's opinion.
The defendant's name is Melvin Alford. (Mike Frisch)
The Maryland Court of Appeals has explained its reasoning for an order entered in October 2011 disbarring an attorney who engaged in misconduct that included misappropriation and serious dishonesty in connection with a real estate transaction:
The hearing judge’s undisputed findings demonstrate that Seltzer converted funds from Advanced Realty’s operating account for his own use, misappropriated funds from Advanced Realty’s escrow
account, and tried to cover up his misconduct by attempting to deposit multiple checks in
Advanced Realty’s accounts from the Death Star account, which Seltzer knew to be
underfunded. As to Rule 8.4(b), Seltzer’s multiple withdrawals of funds from the operating
and escrow accounts constituted thievery and criminal acts that reflect adversely on Seltzer’s
honesty and trustworthiness.
The attorney also had failed to cooperate with the disciplinary process. He had his wife file a motion to postpone oral argument before the court. The court granted Bar Counsel's motion to strike because the wife is not an attorney. (Mike Frisch)
No Loss Of Consortium Claim For Domestic Partner
The Connecticut Appellate Court has held that a same sex domestic partner who had not yet entered into a civil union cannot assert a loss of consortium claim:
Even if we were to assume that a complaint that includes such an allegation states
a legally sufficient claim for loss of consortium, the plaintiff did not plead this fact in the third amended complaint. Although the plaintiff pleaded that she was in a stable relationship with Mueller, lived with her for many years, supported her financially and entered into a civil union with her one and one-half years after the tortious conduct had occurred, these allegations, even when construed in the light most favorable to the plaintiff, do not allege that the couple would have formalized their relationship before the defendants’ negligent acts ceased on March 5, 2004. Absent such an allegation, the plaintiff’s claim is functionally equivalent to that presented in Gurliacci.
The Gurliacci decision involved a loss of consortium claim based on an engaged relationship that had not yet resulted in marriage. (Mike Frisch)
December 21, 2011
"An Open Letter To The Illinois Appellate Court"
The Illinois Administrator has filed a complaint alleging misconduct by an attorney in a series of claims made against judges.
One instance, in connection with the appeal of a dismissed case involving claims of legal malpractice:
Respondent began his..reply brief in appeal number 1-10-0581 with the statement,
"This is about how Judge Thomas R. Chiola fixed a case for the defendants Antonio Romanucci and Stephen J. Blandin and their law firm at the Daley Center on February 17, 2009. The case fixing started in Judge Chiola’s chambers under the guise of a ‘settlement conference’ he convened on his own motion."
Respondent also stated in his reply brief that Judge Chiola’s conduct "is simply one example of the corruption by some judges at the Daley Center circuit court" and accused Judge Chiola of participating in a fraudulent scheme against Balakar.
Respondent stated in another part of his reply brief that, after the February 17, 2009, partial summary judgment ruling, "Judge Chiola went ‘AWOL’ into hiding once he realized that plaintiff’s attorney was confronting him for his role in the fraud."
On November 22, 2010, the Appellate Court entered an order in appeal number 1-10-0581 striking Respondent’s October 26, 2010 reply brief, because it exceeded the 20-page limit set forth in Illinois Supreme Court Rule 341(b)(1).
On December 3, 2010, Respondent filed a 19-page "Revised Reply Brief" in appeal number 1-10-0581, which again included the statements described in paragraphs...above, and which additionally contained Respondent’s statement that "[t]here was corruption and case fixing in the chambers of Judge Chiola on February 17, 2009."
At the time he filed the briefs described above, Respondent had no reasonable basis for the statements that Judge Chiola was corrupt or had "fixed" Balakar’s case.
Respondent’s statements in his briefs described above were made with reckless disregard as to their truth or falsity.
In another, an internet post:
...Respondent posted a 23-page document entitled "An Open letter to the Illinois Appellate Court" on a website he maintained at the internet address, "www.lanreamu.com."
Respondent's web site was open to the public and was not password-protected. Respondent knew or should have known that the contents of his web site were continuously available to anyone with access to the internet.
In Respondent’s internet posting, described...above, he described Dei’s case and appeal number 09 L 1749 and made the following statements:
"Knowing that the case was pending before Judge Lynn M. Egan, American Family Insurance Company hired Judge Lynn M. Egan’s brother Matthew J. Egan’s law firm "Pretzel & Stouffer, Chartered, to prosecute the petition to vacate default judgment before Judge Lynn M. Egan. During the months of legal wrangling before Judge Lynn Egan, plaintiff and his lawyer (both African Immigrants) were intentionally kept in the dark about this link and collusion between Judge Lynn M. Egan and the defense." (p. 2) "The flawed reasoning and decision of Judge Lynn Egan in favor of American Family Insurance Company’s interest was immediately appealed to the Illinois Appellate Court in expectation that the Appellate Court will see through the nonsense and correct the situation. Instead of the Illinois Appellate Court doing the right thing, the Appellate Court simply rubber stamped and affirmed the flawed ruling of Judge Egan in favor of American Family Insurance’s interest. Even when the Appellate Court was made aware of the relationship between Judge Lynn M. Egan and the defense law firm, the Appellate Court did nothing. The matter was simply swept under the rug." (p. 2) "Judge Egan abused not only the fact finding process in this case, she also ignored the law she was sworn to uphold concerning service of process in Illinois, and furthermore she engaged in ethical violations. "Reform should be instituted that prevents justices from writing opinions whenever they are reasonably aware that corruption has infiltrated the fact finding process of the legal proceedings presented to them. Such reform will prevent the two flawed opinions written by Appellate Court Justices Quinn, Neville and Steel in this case. The two appellate court opinions one of which will now be published in the Illinois Case Reporter law books unless recalled amount to a display of intellectual dishonesty. It is wrong for law student to be reading opinions in the future and not be aware that its not real, and that the corruption behind the opinion has been white washed" (p. 10) "The corruption uncovered here happens to be one of a few that can be proved. The tip of the ice berg so to speak." (p. 11) "A system that allows Judge Lynn M. Egan an Irish American to disposess Steve Dei an African American in courtroom 1904 at the Daley Center in this age just as Dred Scott was dispossessed in 1857 is fundamentally flawed and is provocative. The system gives a person from Ireland because of race the power and authority to dispossess a person from Ghana, Africa in a courtroom in the United States." (p. 13) There are a few other alleged instances. (Mike Frisch)
"Knowing that the case was pending before Judge Lynn M. Egan, American Family Insurance Company hired Judge Lynn M. Egan’s brother Matthew J. Egan’s law firm "Pretzel & Stouffer, Chartered, to prosecute the petition to vacate default judgment before Judge Lynn M. Egan. During the months of legal wrangling before Judge Lynn Egan, plaintiff and his lawyer (both African Immigrants) were intentionally kept in the dark about this link and collusion between Judge Lynn M. Egan and the defense." (p. 2)
"The flawed reasoning and decision of Judge Lynn Egan in favor of American Family Insurance Company’s interest was immediately appealed to the Illinois Appellate Court in expectation that the Appellate Court will see through the nonsense and correct the situation. Instead of the Illinois Appellate Court doing the right thing, the Appellate Court simply rubber stamped and affirmed the flawed ruling of Judge Egan in favor of American Family Insurance’s interest. Even when the Appellate Court was made aware of the relationship between Judge Lynn M. Egan and the defense law firm, the Appellate Court did nothing. The matter was simply swept under the rug." (p. 2)
"Judge Egan abused not only the fact finding process in this case, she also ignored the law she was sworn to uphold concerning service of process in Illinois, and furthermore she engaged in ethical violations.
"Reform should be instituted that prevents justices from writing opinions whenever they are reasonably aware that corruption has infiltrated the fact finding process of the legal proceedings presented to them. Such reform will prevent the two flawed opinions written by Appellate Court Justices Quinn, Neville and Steel in this case. The two appellate court opinions one of which will now be published in the Illinois Case Reporter law books unless recalled amount to a display of intellectual dishonesty. It is wrong for law student to be reading opinions in the future and not be aware that its not real, and that the corruption behind the opinion has been white washed" (p. 10)
"The corruption uncovered here happens to be one of a few that can be proved. The tip of the ice berg so to speak." (p. 11)
"A system that allows Judge Lynn M. Egan an Irish American to disposess Steve Dei an African American in courtroom 1904 at the Daley Center in this age just as Dred Scott was dispossessed in 1857 is fundamentally flawed and is provocative. The system gives a person from Ireland because of race the power and authority to dispossess a person from Ghana, Africa in a courtroom in the United States." (p. 13)
There are a few other alleged instances. (Mike Frisch)
Good Deed Punished With Reprimand
An attorney who was suspended for failing to respond to a client's complaint has been reprimanded by the Wisconsin Supreme Court. The client had retained the attorney to defend criminal charges.
The court noted mitigation found by the referee:
The referee found a significant mitigating factor to be that Attorney...'s misconduct arose after he took over a heavy caseload from another attorney with whom he shared office space and whose license was suspended. The referee noted that out of a sense of compassion and professional obligation, Attorney...nearly doubled his own caseload by taking on the other attorney's clients, the vast majority of whom had already paid retainers to the suspended attorney, and Attorney...basically handled these clients' cases for free.
The referee found Attorney...to be remorseful and found Attorney...'s problems were situational in that he was unexpectedly overwhelmed by the amount of additional work he took on and there was no indication that he operated out of greed or dishonest motive. The referee noted that Attorney...has discontinued the practice of law, has gone to nursing school and obtained an R.N. degree, and is currently working at a hospital. Based on all of those factors, the referee concluded that a public reprimand was an appropriate level of discipline.
Perhaps a kind heart is put to better use in the nursing profession than in the legal profession.
Just a thought. Not a sermon. (Mike Frisch)
December 20, 2011
Ponzi Scheme Gets Attorney Disbarred
In cases involving misappropriation of entrusted funds, the most important issue for sanction purposes is the intent of the responsible attorney. When a trust account balance falls below the amount required held in trust, there is misappropriation per se. The sanction remains an issue.
In an opinion issued last Friday, the Michigan Attorney Discipline Board overturned a 2 1/2 year suspension imposed by a hearing panel and ordered disbarment. The board concluded that the attorney's explanation that he let his wife administer his IOLTA account did not negate his intent:
The client's funds were not to be touched except for authorized purposes. Respondent took them for unauthorized purposes. The fact that the balance in the trust account later rose to a level exceeding the amount required to be held for the client does not make the misappropriation go away. The new funds deposited into the account were for the benefit of other clients, and were also required to be held inviolate. Missing client funds cannot be "made good" or "covered" with someone else's money. The use of one client's funds to cover up the conversion of another's is the very essence of a Ponzi scheme.
Both the Administrator and the attorney had sought the board's review of the sanction.
The attorney also made misrepresentations about the account balance. (Mike Frisch)
December 19, 2011
The South Carolina Supreme Court has disbarred an attorney who defaulted on a number of alleged ethics violations.
One charge in particular caught my eye:
[He] maintained a webpage on MySpace.com that contained profanity and nudity along with the name of his law firm and the city of its location; among his comments, Respondent stated he would "take the 5th" in regards to what drugs he had done in the past as well as which drugs he had done in the past week (The Disciplinary Counsel Matter).
Thanks for sharing. (Mike Frisch)