Saturday, February 19, 2011
Attorney Robert N. Wilkey's employer was surprised to learn Friday that the associate it had hired from the plaintiffs boutique located a few floors up had been charged by Upper Saucon Township police with identity theft less than a week earlier.
The Lehigh County district attorney's office announced last week that Wilkey had been charged with three counts of first degree misdemeanor identity theft for allegedly using a client's personal information to apply for three credit cards.
According to the affidavit of probable cause, Wilkey, while working as an associate at Conshohocken, Pa.-based plaintiffs firm Pogust Braslow & Millrood, applied for three credit cards online using client Marco Orellana's identity, prosecutors said.
Harris L. Pogust, a founding partner of Pogust Braslow, told The Legal Intelligencer last week that the firm fired Wilkey about a year ago after being contacted by an Upper Saucon police officer regarding the criminal investigation.
Wilkey was subsequently hired as an associate at plaintiffs firm Villari Brandes & Kline, the main office of which is located in the same Conshohocken building as Pogust Braslow.
When The Legal Intelligencer contacted Villari Brandes co-founding partner Peter M. Villari Friday morning regarding the charges against Wilkey, he seemed caught off guard.
"Robert works with us," he said. "To be frank, I'm not up to speed on what you're referring to." On Friday afternoon, the firm sent a statement to The Legal Intelligencer regarding the situation.
"Per your request for a statement ... please be advised this matter was just brought to our attention today," the release said. "We have been assured that none of Mr. Wilkey's alleged conduct occurred during his employment with our firm. As to Mr. Wilkey, we are presently handling this matter internally, and have no further comment." According to the arrest affidavit, Wilkey told Upper Saucon Detective Joseph Pochron he met Orellana while the two attended the same church and, through that relationship, took Orellana on as client.
Pogust told The Legal Intelligencer Orellana was not a client of the firm's.
"I don't know what Robert was doing before he came here or on the side, but this didn't involve any of our clients," he said.
The Hellertown-Lower Saucon Patch had this report of the December 2010 sentencing. (Mike Frisch)
Friday, February 18, 2011
The New York Appellate Division for the Second Judicial Department accepted an attorney's resignation and imposed disbarment. The court set out the allegations:
[The attorney] is aware of a pending investigation by the Grievance Committee for the Tenth Judicial District (hereinafter the Grievance Committee) into allegations of professional misconduct based upon a complaint filed against him by...his son-in-law (hereinafter the complainant). It is alleged that in the mid-1990's, [the attorney] introduced the complainant to a friend, James Salters, and that both Salters and [the attorney] solicited the complainant to invest in Danismine Corporation, which involved residential properties on Long Island. Investments were purportedly used to acquire, rehabilitate, and sell properties. [The attorney] allegedly met with the complainant on a monthly basis to discuss purchases and sign contracts acknowledging the purchases. The complainant alleges that over 300 properties were purchased and sold and he believes that he had millions of dollars in equity and investments. In or between 2005 and 2006, Bush allegedly induced the complainant to invest in a real estate project in the southeastern United States. In or about 2007, the complainant learned that most of the alleged purchases of real properties on Long Island involved fictitious transactions.
The complainant alleges that [the attorney] engaged in a so-called Ponzi scheme by reporting purchases of properties and refunding a small portion of his principal as gains but rolling most of the money, as well as new investments, into the continuing scheme. [He] allegedly falsely and fraudulently verified that he attended closings on behalf of Danismine and fraudulently executed satisfactions in order to clear title on at least one of the properties where the transaction actually occurred.
[The attorney] acknowledges that he cannot successfully defend himself on the merits of the aforementioned pending complaint. [He] avers that he is in declining health, that his memory is faulty and that he and his wife, who suffers from Parkinson's disease, reside in an assisted living facility. He avers that he, too, lost whatever money he invested with Salters.
The Iowa Supreme Court agreed with its Court of Appeals that a trial court committed error when it permitted the plaintiff in a legal malpractice case to introduce evidence that the attorney "emitted the smell of an alcoholic beverage from his breath during the representation, without introducing evidence of impairment."
The court remanded the case for a new trial as a result of errors in the jury instructions.
The opinion of the Court of Appeals is linked here.
The attorney had defended the clients in civil litigation that led to a money judgment against them. He entered a substance abuse treatment facility shortly after the trial. The trial court refused to admit opinion evidence on whether the attorney was intoxicated at the trial and excluded evidence of his post-trial treatment for alcoholism. The Court of Appeals concluded that "there was no evidence [the attorney] was 'under the influence' much less that he was incapable of competently performing his services as a result." (Mike Frisch)
Thursday, February 17, 2011
Posted by Alan Childress
Updating the announcement last week of bringing SLR to Kindle, Nook, iPad, Sony, etc. And thanks to Jeff Lipshaw for noting it at Prawfs--and I think he wants them to publish his new piece on models in contract theory. Which would be full circle since I'd wind up coding its HTML. Should I add <small><small> before any self-cite? Link his embedded URL cites to YouTubes of his riding horses? Or worse? Note to Stanford editors: Larry Solum yesterday called Jeff's piece "very interesting and recommended."
Anyway, the current issue #2 is now out, at Amazon, Amason UK, B&N for Nook, and Smashwords, so that covers all formats including ePub and Sony. It is also on the iPad at iTunes (or with apps) and will be at Sony ebookstore in a few weeks. For purposes of this blog, one article of interest to our readers is Judge Richard Posner's survey and analysis, with Albert Yoon (law, Toronto), of judges' perceptions of the quality of legal representation ("Studying the legal profession poses several challenges..." -- abstract beneath the fold). Also interesting for the blog topic is Norman Spaulding (law, Stanford) on changes and problems at the Department of Justice, and a student Note on economic espionage, plus of course other articles. SLR will issue a press release this week on how they partnered up with Quid Pro to go ebook. Looks like other journals will follow suit this year.
Related, but certainly off-topic, I'll mention that Quid Pro also released this week a republication in Kindle, Nook, and Smashwords of a classic of law and society (political science; the Court), Martin Shapiro's Freedom of Speech: The Supreme Court and Judicial Review. Its new cover is right. See also David Crump's modern translation, rhyme, and abridgment of Virgil's Aeneid. It was Hades to get poetry to work on Kindle but I mastered the Styx. It has a paperback too, and soon a hardback. Its innovation in digital is using jumps from underlined words, to link to annotations (as a blog does), rather than footnotes. Keeps the poem moving. The paperback put the notes in margin, shaped to mirror the poem, rather than at a distracting footer. I think people will like the format and, of course, David's heartfelt take on the epic.
From the web page of the District of Columbia Bar:
On March 2 the Young Lawyers Committee of the Corporation, Finance and Securities Law Section will host a luncheon program titled “Annoying Habits of Associates: A Partner’s Perspective,” which highlights behaviors that can make a bad impression at a law firm.
The program will focus on the activities or habits of associates that could undermine long-term career prospects. To provide context for why certain habits are viewed negatively, panelists will discuss key attributes that partners value in associates.
Sara Hanks, general counsel of the Congressional Oversight Panel, and Martina E. Vandenberg and Scott B. Wilkens, both partners at Jenner & Block LLP, will lead the panel discussion. Thomas H. Kim, an associate at Jenner & Block LLP, will moderate.
The program is cosponsored by the Administrative Law and Agency Practice Section; Antitrust and Consumer Law Section; Arts, Entertainment, Media and Sports Law Section; Computer and Telecommunications Law Section; Corporation, Finance, and Securities Law Section; Criminal Law and Individual Rights Section; International Law Section; Labor and Employment Law Section; Law Practice Management Section; Litigation Section; Real Estate, Housing and Land Use Section; and Taxation Section.
It will run from 12 to 1:30 p.m. and take place at the D.C. Bar Conference Center, 1101 K Street NW, first floor.
For more information or to register, contact the Sections Office at 202-626-3463 or firstname.lastname@example.org.
Looking forward to the follow up session on the Annoying Habits of Partners: An Associate's Perspective. (Mike Frisch)
The New York Appellate Division for the Third Judicial Department has vacated the stay of a suspension imposed in 2004 for escrow account violations that included issuing escrow checks against insufficient funds. The conditions for the stay required quarterly reports from a CPA confirming that the attorney's escrow account was being administered in compliance the disciplinary rules.
The court had previously denied a motion by the attorney to terminate the stayed suspension as well as motions by the Committee on Professional Standards to vacate the stay and impose suspension.
The fourth motion by the committee was granted based on evidence that several escrow checks were issued with no corresponding deposits.
The court: "Under the circumstances presented, and considering the history of respondent's escrow missteps since her stayed suspension in 2004, we grant petitioner's motion and vacate the stay of respondent's suspension." The suspension will run until June 17, 2011. (Mike Frisch)
The New York Court of Appeals has reversed the Appellate Division and granted a defendant law firm's motion to dismiss the complaint on the condition that the law firm waive any statute of limitations defense that might be available in Texas.
The law firm had moved (and lost) a forum non conveniens motion seeking that the matter be heard in Texas:
This case involves the alleged malpractice by Texas lawyers representing Alaskan clients, whose principal places of business are in Connecticut, in a transaction with Texas companies that involves land in Texas. Further, the documentary evidence is located in defendant's Texas office, as are most of the attorneys who allegedly committed the malpractice and most of the potential witnesses.
The Virginia Disciplinary Board has imposed a five-day agreed suspension with terms in a case involving a client file.
The attorney was contacted by his former law partner with a request to locate the file of a former client in a habeas matter. The client had made a request for the file, which was in the custody of the attorney. The attorney advised the former partner that the file was off-site and she would have to pay the $25 retrieval fee.
Thereafter, the attorney did not produce the file, despite repeated requests and the former partner's statement of the urgent need for the file. The inaction took place over a period of several months.
The condition imposed along the the short suspension is the return the file. If the attorney fails to do so within 60 days, a 90 day suspension will follow. (Mike Frisch)
Wednesday, February 16, 2011
The New Jersey Supreme Court accepted the recommendation of its Disciplinary Review Board and reprimanded an attorney convicted of one count of tampering with public records.
In 2004, the attorney had stolen the identity of a college fraternity brother by applying for a driver's license in the frat brother's name. The matter came to light when the frat brother tried to renew his own license. The DMV had the attorney's phopo in its computer system. The frat brother recognized the attorney. The attorney claimed that he had had the frat brother's permission to obtain the license (although I would doubt that permisssion constitutes a defense).
The reason for his effort to get the license was that he was getting divorced and wanted the license so that he could date other women and "possibly check into a hotel room using the false identification." He realized that the idea was "extremely stupid" and left the DMV without completing the process of obtaining the license. Evidence also revealed that the frat brother had falsely denied contact with the attorney in the preceding 4-5 years.
The attorney has struggled with depression and had self-reported the misconduct. (Mike Frisch)
Posted by Alan Childress
As promised in a comment, here is more information on a new addition to the publishing project, and quite germane to the blog topic (!): Rob Rosen's (law, Miami) book, Lawyers in Corporate Decision-Making. Today out in hardcover and last month in paperback (allows 'Look Inside'), Kindle, Nook, Sony, and on the iPad via iTunes and K/N apps. This was originally his dissertation in sociology at Berkeley, and had been cited a lot and passed around in manuscript before. It is updated with his new Preface and new Foreword by Sung Hui Kim (law, UCLA) noted below, and a revised chapter two and other additions. Mainly it is the classic study people know and quote. He triangulated interviews with corporate counsel, outside law firms, and the corporate client, on many different legal representations, and got the whole picture of the disparate roles played in corporate advising. Lawyers often perceived it differently from clients. One chapter autopsies four representational failures. Interesting. Rosen also relates all this to theory and practice about "who is the client" and what should be the role of lawyer here: passive, proactive, advising beyond the legal consequences? It is cited a lot, too, for its taxonomy of corporate advising roles. So it is now generally out and not just in Xerox. Rob worked hard to get its substance and presentation just right, and even in library-quality hardback; we hope you'll like it.
"Rosen’s study of in house counsel is a deft, subtle dissection of a complex world where nothing is as it quite seems. In interviewing in house counsel, outside counsel, and clients, Rosen captures, in a Rashomon-like way, the moral character of lawyers’ work–their choices, their pitches, their claims by which they justify what they do. We see inside the professional black box.”
– John Flood, Professor of Law and Sociology, University of Westminster, London
“Widely regarded by experts in the field as a pioneering work in the sociology of the legal profession and a foundational piece in the slowly emerging canon of empirical research on inside counsel…. Not limited to rich, thick description, the study also normatively challenges the legal profession’s ideology of moral ‘independence.’ …With the long-awaited publication of this manuscript, corporate lawyers will have something to guide them.”
– Prof. Sung Hui Kim, UCLA School of Law, from the new Foreword
Also was blogged about at Froomkin's Discourse.net (terming it a cult classic), Business Law Prof Blog, the Advanced Legal Studies@Westminster Blog and Random Academic Thoughts (Flood calling it wonderful), and others (and finally, me!). Libraries can order it through Baker & Taylor, Ingram, Amazon, etc. UPDATE: I forgot to mention that (and thank) Jeff and Nancy and others gave some great blurbs for this you can see below the fold....
The holding of a case decided yesterday by the Oklahoma Supreme Court:
This is an original proceeding to challenge the validity of State Question No. 752, Legislative Referendum No. 352 and the Judicial Nominating Commission. State Question No. 752 amended art. 7-B §3, of the Oklahoma Constitution to require that none of the lay members of the Commission have any "immediate family" members who are lawyers. It also amended the Constitution by adding two additional members, one to be selected by the President Pro Tempore of the Senate and the other by the Speaker of the House of Representatives. The amendment did not, however, change the constitutional language referring to six congressional districts which existed when the provision was first adopted, even though there are currently only five congressional districts. Because this cause is publici juris, we previously assumed original jurisdiction. We hold that: 1) the referendum submitted to and approved by the voters was an amendment to the Okla. Const. art. 7-B §3, not a repeal of that section of the Constitution; and 2) regardless of the Constitutional amendment, the Commission's decisions are valid when decided by a majority of its members.
I find this idea interesting.
In my experience, many of the lay members of District of Columbia disciplinary hearing committees (and the Board on Professional Responsibility) have a close tie to an attorney. While I don't advocate in favor of the exclusionary approach of this referendum, I do wonder whether such lay participants truly reflect a non-lawyer perspective in evaluating misconduct. (Mike Frisch)
The Louisiana Attorney Disciplinary Board has recommended permanent disbarment of an attorney in a matter involving a bribery conviction. The attorney had participated in the "bribery of a state official in exchange for the approval of lucrative tax benefits." He has been suspended on an interim basis as a result of the conviction.
The benefits involved a program designed to bring media-related projects to Louisiana. The attorney knew the director of the state agency involved in the program as a law school classmate. The friend certified $1.35 million in tax credits to a company (Break Beat) in connection with filming two live music festivals. The attorney got $67,500 and now is in jail.
The board likened the case to that of former Governor Edwin Edwards for sanction purposes. (Mike Frisch)
Tuesday, February 15, 2011
The Indiana Supreme Court suspended a superior court judge for 30 days without pay for his handling of traffic infractions generally and one case in particular.
The particular case involved a bench trial on charges of driving while suspended and speeding. The defendant indicated a wish to accept a plea offer at the start of the examination of the state's first witness. The judge refused to take the plea and said, inter alia, "I don't like being jerked around, all right?" He found the defendant guilty and imposed a 365 day jail sentence along with license revocation. The Supreme Court reversed the conviction and granted a new trial for his conduct.
In other traffic cases, the judge had a practice of imposing fines greater than permitted by law. In one case, when the defendant was uncertain whether to admit or deny the charges, the judge stated: "I'm a great listener but sometimes I'm very expensive." He admitted that he "wanted to discourage other litigants from exercising their constitutional rights to trials" and failed to consider the individual facts of the cases before him.
The sanction was based on a conditional agreement.
Chief Justice Shepard concurred, only in deference to the agreed sanction: "I would expect that in the absence of a settlement, this case should have resulted in a lenghtier suspension. The per curiam understates the willfulness of the Respondent's misconduct and the damage it has done to the public standing of the judiciary. Fortunately, the overwhelming number of Indiana's judicial officers strive demonstratably toward a much higher standard."
Monday, February 14, 2011
Posted by Jeff Lipshaw
For those of you out in the practice world who are curious about how academic legal theory and first year contract law pedagogy might be combined with real world intuitions and experience, I've posted a new article, Metaphors, Models, and Meaning in Contract Law , on SSRN.
The gist of it is this: the dominant metaphor for contract in practice and the academy is "contract as model." One upshot of this metaphor is an article of faith (among lawyers at least) about the rational linkage between what is going on before the fact in the creation of the contract, and what gets litigated after the fact. Sometimes the metaphor is appropriate, and sometimes it is not. I've played with my intuition and admitted casual empiricism that the contract, even in a heavily negotiated deal, is as often the "thing" that Arthur Leff conceptualized in his iconic 1964 American University Law Review article as it is a model or map of the transaction . I've proposed an alternative metaphor of "journey" in which the objectification of an agreement in the contract (a milestone, metaphorically speaking) is often as important as the content itself. The piece contains illustrations I use in class (see Wood v. Lucy, Lady Duff-Gordon, above, but you have to read the article to get the context), as well as a discussion of how I use the fundamentals of metaphor theory to explain hard cases in which the parties assert, and judges must choose between, competing legal "algorithms".
Why does there seem to be such a wide gap between the subject matter of the usual first-year contracts course and what practitioners (particularly transactional lawyers) actually experience? My claim is that it is the result of a powerful theoretical system whose hallmark is a closed linguistic system—in the coinage of one noted scholar, “an epistemic trap.” The subject matter of contract law requires dealing with legal truth not just as a coherent body of doctrine, but also correspondent in some way to actual self-legislation of the parties. I propose escaping the trap with a turn to metaphor theory. The underlying metaphor common to prevailing conceptions of contract law, and which demands some form of correspondent truth from the contract (and contract law), is “contract as model of the transaction.” I suggest alternative metaphors of categories as containers, ideas (including “the meeting of the minds”) as objects, and the transaction life cycle as a journey. The goal is to focus on the “subjective to objective” process of the transactional life cycle, and to consider the perspectives of the participants in or observers of the transactional life cycle, and the models and metaphors that shape the conceptual frames from within which those participants and observers perceive and make use of the legal doctrine.
February 14, 2011 in Abstracts Highlights - Academic Articles on the Legal Profession, Law & Business, Law & Society, Lipshaw, Teaching & Curriculum, The Practice | Permalink | Comments (0) | TrackBack (0)
The Connecticut Appellate Court has affirmed a judgment suspending an attorney who had submitted an application for a staff attorney position with the state workers' compensation commission.
The attorney-applicant stated that he was employed by a non-existent law firm, claimed that he graduated cum laude from New England College School of Law (he had not), claimed he had been assistant note editor on law review (also not), listed a reference at a non-existent address and did not disclose a law firm where he had worked.
The court rejected a variety of motions, including claims that the court lacked subject matter and personal jurisdiction. The attorney had denied knowledge of the application and claimed to be a victim of identity theft.
The identity theft claim was not served by the attorney's failure to appear. The court quotes the trial court: "[his] failure to attend any court or grievance proceeding related to this matter is truly puzzling in light of his identity theft defense. What better way to prove he was not the attorney who gave false information to [the complainant] than appearing and allowing her to confirm that he was not that attorney?" (Mike Frisch)
The Indiana Supreme Court has imposed a public reprimand in a matter involving charging unreasonable fees in two family law matters. In each matter, the agreements called for a nonrefundable engagement fee. The court held that "[r]egardless of the term used to describe a client's initial payment, its type is determined by its purpose,i.e., what it is intended to purchase."
Here, the agreements were not a general retainer to secure the attorney's availability; rather, the fees were advanced and credited against the services the attorney agreed to perform. However, the court rejected charges that the attorney had failed to return unearned fees: "...we are not prepared to hold that some amount of a flat fee must be retiurned in all cases in which the attorney-client relationship ends before the work contracted for is completed."
Chief Justice Shepard and Justice Rucker dissented as to sanction:"Respondent's lawyer indicates in very strong language that she is unrepentant. We conclude that a period of suspension without automatic reinstatement is necessary for the protection of clients." (Mike Frisch)
The Louisiana Supreme Court has permanently disbarred an attorney disbarred in 2006 for "defrauding a legally blind woman into signing a contingent fee agreement, forging an endorsement on a settlement check, forging a signature on an affidavit, making a false accusation...that a police sergeant may have had a sexually intimate relationship with a convicted felon, and blatantly violating the confiidentiality rule regarding complaints filed with the Judiciary Commission."
The offense here was a result of the attorney's arrest and no contest plea for continuing to practice after disbarment. The Daily Iberian reports that the post-disbarment practice related to "a grave dispute:"
Many of the unlawful practice charges stem from a years-old dispute between the former lawyer and the owners of Broussard Cemetery, who have filed suit against [the former attorney].
[The former attorney] says much of his family is buried in the Broussard Cemetery, and, because he was good friends with the former owner, he “gratuitously” maintained the cemetery for many years.
The money used for the old cemetery’s upkeep was derived mostly from donations and contributions [the former attorney] solicited each year, he said. When the owners eventually expanded and formed Broussard Cemetery Annex Inc., a dispute arose over which cemetery would solicit from which contributors each year, [he] said.
In the lawsuit filed in 2007, several plaintiffs, including Joseph Dubois, claim [the former attorney] secretly and “fraudulently dissolved” Broussard Cemetery LLC in 1993. [The former attorney] maintains he was “doing them a favor,” citing their liability and unwillingness to purchase insurance. Part of the suit calls for restitution of incorporating fees.
Sunday, February 13, 2011
In a case that otherwise would "warrant a sanction in the lowest range," the Indiana Supreme Court imposed a suspension of not less than 180 days without automatic reinstatement.
What upped the ante? In a word...attitude.
The attorney sent a letter to a prospective client in Indiana based on a news article concerning a serious motor accident. The soliciation failed contain the words "Advertising Material" and touted the attorney's prior successes. The letter (and his web page) held out his ability to practice in Indiana although he practices primarily in Michigan.
His Indiana license has been inactive since August 2009, although the letter was sent during a period when he had an active Indiana license.
The court rejected constitutional challenges to the solicitation charges. The court also rejected the contention that it lacked jurisdiction and was required to apply Michigan law. Then , the court quotes the attorney's brief:
My experience with the Indiana attorney discipline system is a hideous aberration of justice: a Disciplinary Commission and staff attorney with a self-image of pompous arrogance; a hearing officer who permits herself to be used as a rubber stamp...
The court continues:
Similar examples [only a portion of which are recounted above] can be found on nearly every page of Respondent's briefs to this Court and to the hearing officer, as well as in his correspondence to counsel for the Commission and in his testimony before the hearing officer. The hearing officer noted Respondent's invectives against the Commission's former executive secretary ("a first-class ass"), the Commission ("soft and lazy"), the disciplinary process ("a modern day version of the Star Chamber, a Salem witch hunt, or a Spanish Inquisition"), and this Court's disciplinary rules ("frivolous and antiquated," "rules of behavior conceived over cigars and brandy...during the late Victorian Era by a group of self-impressed lawyers"), as well as his repeated use of caustic terminology (e.g. "despicable," "deceptive and ridiculous," "naked stupidity," "cutesy and evasive")...[he] is totally non-repentant...near the end of his testimony before the hearing officer, he went into great detail describing how he would essentially do it all over again, at least for a Michigan resident.
The title to the post comes from a 1970 song. (Mike Frisch)