Friday, March 16, 2012

False Bankrutpcy Filing For Federal Judge Draws Suspension

An attorney who had assisted former federal judge Thomas Porteous and his wife in a false bankruptcy filing has been suspended for six months by the Louisiana Supreme Court. The filings used false names. The attorney later corrected the falsity and the bankruptcy petitions proceeded.

The court noted that the attorney had no prior discipline and was cooperative. He testified in the impeachment proceeding brought against the former judge. (Mike Frisch)

March 16, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Counter-Intuition in the Legal Academy (and Life)

Posted by Jeff Lipshaw

Larry Kramer, Stanford's dean, was in Boston yesterday, and we had lunch.  (Full disclosure:  I am an unabashed Larry Kramer fan.)   I've previously lauded the efforts of Larry and the Stanford faculty to reform the second and third year curriculum, primarily to provide more interdisciplinary and joint degree opportunities as between the law school and other arms of the university, like the business school, med school, engineering school, and so on.   Larry reported that the program was moving ahead nicely, but that students were still tending to select more traditional classes, presumably in reaction to the contracting job market over the last couple years, and on the theory that a more traditional transcript would be more attractive to employers in a tight market.

We agree this was a natural flight to safety, but that the more appropriate reaction, perhaps counter-intuitive, would be to double-down on the interdisciplinary opportunities.   In our conversation, I suggested to Larry the following as an illustration of his point.

A free-lance reporter called me the other day wanting to understand a contract lawsuit recently filed by the operator of the Park City ski resort in Utah.  In a nutshell, the operator as lesseee had a fifty year lease, and apparently the right to renew it for another fifty years.  I don't have the underlying contract, only the complaint, but it's clear the party were negotiating amended terms of a renewal, and in the process, the operator created some ambiguity over whether it had exercised the renewal option precisely and literally according to the terms of the agreement.  It also appears that the lessor said something in the negotiations to the effect that the lessee hadn't properly renewed, and was subject to being evicted.  Nevertheless, the lessor has not yet sought to terminate the lease or the occupancy, and is still collecting rent.  Moreover, the case is a declaratory judgment action filed by the lessee, seeking a determination that it indeed renewed the lease.

Now I think this may well be a lovely case for demonstrating the interplay of express and implied conditions as a matter of doctrine, but it seems to me a perfect example of how little you know if all you know is contract doctrine or even litigation strategy.   In the past, I've used the metaphor of a ricocheting bullet for the unintended consequences of a hardball action, particularly the filing of a lawsuit.  Deciding to escalate, and to escalate publicly, invokes not just legal doctrine (i.e., a prediction how a third party decision maker might rule), and not just trial strategy (i.e., how do we put ourselves in the best position to win the litigation), but business strategy, public policy, public relations, psychology, finance theory, and other disciplines, all mediated by a well-grounded view of human nature.

I don't think a law student gets more "practice-ready" or more attractive to an employer by taking more old-style doctrinal classes that do things like focus solely on the kernel of legal doctrine that may lie at the heart of a problem.  I can think of a bunch of metaphorical terms for this reaction to change, crisis and uncertainty:  bunker mentality, cocooning, circling the wagons, etc.  Of course, I'm already in hot water with the contract professors union for suggesting that the universe as we have come to know it will not end with a reduction from six credit hours of contract law doctrine in the first year.  That too strikes me as circling the wagons.

Flights to safety and control are the typically intuitive (and, in my view, wrong) reaction to change and uncertainty (e.g., banning laptops or cutting off wireless access as the means by which teachers seek to control the attention of students in a classroom).   We already know or what we've previously done feels safe and controlled.  Being interdisciplinary is, by definition, unsafe and uncontrolled, by virtue of the fact that there are no intra-disciplinary authorities to tell you that what you are doing is okay.  (If there's an interdisciplinary authority, then the interdiscipline has really become its own discipline.)  But is the intuitive flight to safety and control the right one?

[Cross-posted at Legal Whiteboard.]

March 16, 2012 | Permalink | Comments (2) | TrackBack (0)

Former Judge Suspended

A former associate district court judge has been suspended by the Iowa Supreme Court without possibility of reinstatement for two years for convictions for a third operating while under the influence ("OWI") and harrassment in the third degree.

The attorney was a judge from 1982 to 2004. He left the bench and returned to private practice after an earlier OWI.

Here, he was convicted a harrassing his estranged wife. He called her 26 times over a few hours. As a result, there was a "lock down" of the elementary school where the estanged wife worked.

The attorney must establish his sobriety and fitness to practice law in order to secure reinstatement. (Mike Frisch)

March 16, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Attorney Not Penalized For Defending Against Bar Charges

The District of Columbia Board of Professional Responsibility has ordered Bar Counsel to issue an informal admonition to an attorney who misrepresented her bar status on letterhead and stationary.

The attorney had an office in Maryland and entered into retainer agreements in connection with predatory loan practices in three states where she is not admitted. Her only active license is in the District of Columbia.

A hearing committee had recommended a public censure, which is imposed by the Court of Appeals. The board's order here effectively ends the matter.

One interesting aspect of the board's report deals with the issues of remorse and attitude towards the misconduct. The hearing committee accepted the attorney's testimony of a subjective good faith belief that her conduct was permissible. The board states that one can vigorously defend the charges and not be penalized for a bad attitude.

The order can be found at this link. The case is In re Claudette Winstead. (Mike Frisch)

March 16, 2012 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Thursday, March 15, 2012

Breaking News

The Indiana Supreme Court has held that Charlie White, who was elected to the position of Indiana Secretary of State, is not barred from taking office because he was ineligible to vote.

Here, the allegations of White's registration impropriety arose before the election and were made public by private citizens, the media, and by the Osili campaign and by the Democratic Party. It is likely that the average votor was aware that there were concerns about White's registration history at the time of the election, but we will not, on the basis of the present petition, judicially disenfranchise votors who went to the polls aware of what were at the moment only allegations. the fact that criminal charges were filed after the election and resulted in convictions (appeals still pending) does not alter that conclusion.

The court rejected the petition of the Democratic Party to bar Mr. White from taking office. (Mike Frisch)

March 15, 2012 | Permalink | Comments (0) | TrackBack (0)

The Change From Minor To Major

The Florida Supreme Court affirmed a referee's findings of misconduct but rejected the referee's conclusion that the attorneys three acts of dishonesty in a landlord-tenant matter involved "minor misconduct." The court thus concluded that a 91-day suspension, which requires proof of rehabilitation, is the appropriate sanction.

The court made clear that it considers acts of dishonesty in violation of Rule 8.4(c) to be serious absent circumstances in mitigation not present here. The attorney had filed a false affidavit in the underlying  litigation. The court found that the misconduct was not the product of negligence. (Mike Frisch)

March 15, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Privilege And Workers' Compensation

The Montana Supreme Court has dismissed an appeal from a district court order denying attorney-client privilege and work product claims in a workers' compensation matter.

The worker had suffered a serious injury. The employer's insurer (Zurich) accepted liability for the claim. When disagreements arose over the level of impairment and other issues, an outside attorney prepared an opinion and evaluation letter for Zurich in advance of a mediation. The opinion letter was given to the adjuster handling the claim, who provided it to the employer.

The district court found that the document was not protected from discovery.

The court here noted that "[t]he intersection of workers' compensation law and the attorney-client privilege presents a unique issue." The employer is not a party and is not at risk in the matter: "It is thus improper for an insurer and an employer to collaborate on settlement of a worker's claim for benefits."

The court held that the common interests of insurer and employer were "not sufficient to extend the [attorney-client] privilege beyond the attorney-client relationship." Further, the disclosure of the letter to the employer was not for the purpose of seeking legal advice.

Justice Rice dissented and would hold that there is a sufficient "community of interest" between employer and insurer to reverse the district court's privilege detrmination.

The link is not working. The case is American Zurich Insurance v. Montana Thirteenth Judicial District Court. (Mike Frisch)

March 15, 2012 in Privilege | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 14, 2012

Live Streaming Court Proceedings And The First Amendment

A decision issued today from the Massachusetts Supreme Judicial Court:

On May 2, 2011, as part of a pilot project it has named "OpenCourt," WBUR-FM, a National Public Radio station in Boston, began to broadcast live by "streaming" over the Internet video and audio recordings of certain proceedings taking place in the Quincy Division of the District Court Department (Quincy District Court). We consider here three petitions for relief under G.L. c. 211, § 3, that relate to the OpenCourt project and were reported to this court by a single justice. Each petition challenges one or more orders of a judge in the Quincy District Court concerning the broadcasts and online posting of particular proceedings in two different criminal cases. In the first case, the Commonwealth appealed from the judge's order permitting OpenCourt to "post" to its public, online archives an audio and video recording of a criminal dangerousness hearing conducted pursuant to G.L. c. 276, § 58A.  The Commonwealth argues that the judge abused his discretion and failed to protect the alleged minor victim's privacy. OpenCourt has brought a separate petition for relief in the Barnes case, challenging the judge's orders that required OpenCourt to redact the alleged victim's name from the recording and to stay temporarily public access to the online archive. As explained infra, OpenCourt has an internal policy prohibiting publication of the names of minor victims of sexual assault and does not wish to publish the name, but objects to the court order; OpenCourt's argument is that any restriction on its right to publish the recordings constitutes a prior restraint that violates the First Amendment to the United States Constitution.

Charles Diorio brought the third petition for relief. He appeals from orders permitting the broadcasting and public online archiving of both his July 5, 2011, arraignment in the Quincy District Court, and a motion hearing held on July 25. Diorio contends that the judge abused his discretion and prejudiced Diorio's constitutional right to a fair trial by allowing the hearings to be broadcast and by not requiring the recordings to be removed from OpenCourt's online archives.

We conclude that any order restricting OpenCourt's ability to publish--by "streaming live" over the Internet, publicly archiving on the Web site or otherwise--existing audio and video recordings of court room proceedings represents a form of prior restraint on the freedoms of the press and speech protected by the First Amendment and art. 16 of the Massachusetts Declaration of Rights, as amended by art. 77 of the Amendments to the Massachusetts Constitution. Such an order may be upheld only if it is the least restrictive, reasonable measure necessary to protect a compelling governmental interest.

In the Barnes case, we vacate the order of the District Court judge requiring the redaction of the name of the minor alleged victim. We expect and anticipate that OpenCourt will continue to adhere to its policy of not publishing the name of the minor, but agree that on the record of this case, the judge's order was unconstitutional because the Commonwealth did not provide an adequate demonstration that this particular minor's privacy or psychological well-being would be harmed by publication of her name, or that a prior restraint was the least restrictive reasonable method to protect those interests. In the Diorio case, we conclude that Diorio has not met the heavy burden of justifying an order of prior restraint with respect to the specific proceedings at issue in his petition for relief. Finally, we exercise our discretion pursuant to G.L. c. 211, § 3, to request that the Supreme Judicial Court's judiciary-media committee submit for this court's approval a set of guidelines for the operation of the OpenCourt pilot project.

The case is Commonwealth v. Barnes. (Mike Frisch)

March 14, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Sanction For Negotiating Future Expenses Of Deceased Client

The Louisiana Attorney Disciplinary Board has publicly reprimanded an attorney for misconduct in negotiating with the state Patient's Compensation Fund.

The attorney negoitated for future medical payments on behalf after a client after learning that the client had died. He also misled the fund's counsel into believing that he was representing all claimants in the client's medical malpractice action.

The attorney could not deny that he knew of the client's death. He attended the wake. (Mike Frisch)

March 14, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Blind Trust

The New Jersey Supreme Court has imposed a reprimand of an attorney for misconduct involving a series of trust account checks that were returned for insufficient funds.

The attorney employed his wife as his paralegel from 2005 to September 26, 2009, when they seperated. He was "totally reliant" on her to document real estate transactions. He failed to oversee her work and "executed the closing documents exactly as [she] had prepared them."

Trust checks bounced because of money that was taken by the attorney's wife and a "double debit banking error." (Mike Frisch)

March 14, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Lawyer Suspended For Misconduct In Fight Over Co-Counsel's Share Of Fee

A dispute between counsel over a legal fee has resulted in a 2 1/2 year suspension imposed by the New York Appellate Division for the First Judicial Department. A referee had recommended disbarment; a hearing panel favored a five-year suspension.

The New York attorney agreed with a Maryland lawyer (who sent him the case) to split the fee in a medical malpractice case on a 50-50 basis. The New York attorney filed the case and did not believe the Maryland lawyer should get his share when the case settled for $4.25 million.

The Hearing Panel's conclusions:

The Panel found that, after Apfel [the Maryland attorney]retained counsel, he and respondent "embarked upon an acrimonious, scorched earth litigation disproportionate to the fee dispute. It was at that point that Respondent [at the expense of the Leskinen family] began to subvert the settlement approval process and attempt to use it to achieve a tactical advantage in the fee dispute." Deferring to the Referee's credibility conclusions, the Panel also found that "Respondent's claim that Mrs. Leskinen signed a separate retainer agreement with [his] firm in September 1998 is just not supported . . . As a consequence, every time Respondent asserted under oath or in a court filing that there was such an agreement, it was a false statement." In recommending a five-year suspension, the majority considered that the Committee had not sought disbarment, the lack of precedent supporting disbarment, that the misconduct was not directed at the client (other than indirectly interfering with payment), that the conduct could be considered a single episode, that the misconduct was essentially limited to one set of circumstances, and the lack of prior discipline.

The court:

In reducing the sanction, we note that despite the number of sustained charges, they arise from a course of conduct in the pursuit of legal fees in one matter in an otherwise unblemished career of an attorney with a good reputation. As conceded by the Committee in urging a five-year suspension rather than the disbarment recommended by the Referee, respondent's misconduct was not directed at his client and did not extend to other matters. His cooperation with the Committee, in the area of document production and admissibility, was "exemplary" and respondent submitted evidence attesting to his good character.

(Mike Frisch)

March 14, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 13, 2012

Close Enough To Disbar

The New York Appellate Division for the First Judicial Department disbarred a criminal defense attorney convicted of offenses in federal court arising out of his represenation of a defendant charged in a cocaine conspiracy.

The court described the circumstances:

In June 2006, respondent, a criminal defense attorney, was retained by Shaheed "Roger" Khan (Khan) to represent him in a criminal prosecution. The United States alleged that Khan was operating an enterprise which imported large quantities of cocaine into the United States from Guyana. In the course of respondent's representation of Khan, federal agents began investigating respondent, his then law associate, and Khan for conspiring to influence potential witnesses in Khan's upcoming trial.

On July 10, 2009, by superseding indictment, respondent was charged in a 13-count indictment in the United States District Court for the Eastern District of New York. Specifically, respondent was charged with one count of conspiracy to obstruct justice in violation of 18 USC §§ 1512(b)(1) and (b)(2)(A); eight counts of attempt to obstruct justice in violation of 18 USC §§ 1512(b)(1) and (b)(2)(A); one count of bribery of in violation of 18 USC § 201(c)(2); one count of making a false statement in violation of 18 USC § 1001(a)(2); and one count each of importation and possession of eavesdropping equipment in violation of 18 USC § 2512(1)(a) and (b).

On August 20, 2009, following a jury trial, where the evidence demonstrated that respondent sought to use Khan's Guyana-based criminal organization to identify, locate, and tamper with potential witnesses in Khan's criminal trial, respondent was convicted of all counts in the superceding indictment, except count 11, which charged respondent with making a false statement. On December 4, 2009, respondent was sentenced, inter alia, to a prison term of 14 years followed by three years of supervised release.

Summary disbarment was imposed because the court found one of the crimes would constitute a felony under state law:

Notwithstanding the facial dissimilarity between 18 USC § 201(c)(2) and Penal Law § 215.00, the Committee's submission presented in support of this application establishes that respondent, in violating 18 USC § 201(c)(2), also violated Penal Law § 215.00, such that his conduct constitutes a felony in this State. Accordingly, the Committee establishes that here, there is essential similarity between 18 USC § 201(c)(2) and Penal Law § 215.00. Specifically, the Committee submits the superceding indictment in respondent's federal criminal case along with the trial testimony presented at trial. Read together, this evidence reveals that respondent's federal conviction for bribery stemmed from his attempts to bribe the girlfriend of the prosecution's key witness in its case against Khan. More specifically, the evidence adduced at respondent's federal criminal trial establishes that respondent, through Khan's associate, arranged to pay this witness at least $5,000 if she signed an affidavit created by respondent, containing tailored and false testimony, and if she agreed to testify in accordance thereto at Khan's upcoming trial. Accordingly, by offering the witness money in exchange for tailored testimony at trial, respondent offered a benefit to a witness who he would then call to testify in an upcoming court proceeding, with the understanding that the witness' testimony would be influenced thereby. This constitutes bribery in this State under Penal Law § 215.00 and the Committee has therefore established that the conduct underlying respondent's federal conviction for bribery is also a felony in this State and that therefore, 18 USC § 201(c)(2) and Penal Law § 215.00 are essentially similar.

(Mike Frisch)

March 13, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Pennsylvania Limited Scope Arrangement Opinion

From the web page of the Pennsylvania Disciplinary Board:

The Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility and the Professional Guidance Committee of the Philadelphia Bar Association have collaborated to produce Joint Formal Opinion 2011-100, regarding limited scope arrangements.

The Committees define “limited scope arrangements” to include two kinds of activities – unbundled legal services, in which a lawyer is engaged only to perform particular activities rather than undertake comprehensive representation of the client, and undisclosed representation, commonly referred to as “ghostwriting,” in which a lawyer prepares legal material for the client’s use but does not undertake direct representation of the client with a court or opposing party.

The opinion notes that limited scope arrangements are generally permissible under the Rules of Professional Conduct, and indeed are specifically contemplated in many of the rules.

The opinion notes that the comment to RPC 1.2 states that a limitation on representation must be reasonable under the circumstances. The fact that the representation is limited does not relieve the lawyer of the normal duty of competence and preparation under RPC 1.1. Second, the lawyer must be sure that the client has exercised informed consent to the limitation on representation. Informed consent is defined in RPC 1.0(e) as “consent by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” From the Restatement of the Law Governing Lawyers, the Committees drew five safeguards:

  • a client must be informed of any significant problems a limitation might entail, and the client must consent;
  • any contract limiting the representation is construed from the standpoint of a reasonable client;
  • the fee charged by the lawyer must remain reasonable;
  • any change made, an unreasonably long time after the representation begins must meet the more stringent test for post inception contracts or modifications; and
  • the terms of the limitation must be reasonable under the circumstances.

The Committees provide a list of Rules of Professional Conduct which the lawyer entering into a limited scope engagement should consider:

Finally, after an extensive examination of rules, court decisions, and ethics opinions nationwide, the Committees conclude that the lawyer engaged in limited scope representation is not under an obligation to disclose his or her role to either opposing parties or to a tribunal. The Committees note that there is quite a bit of divergent thought on these issues.

This short summary is no substitute for reading the 31-page analysis through which the Committees reach their conclusion, and the lawyer considering such employment would be wise to study the opinion firsthand.

(Mike Frisch)

March 13, 2012 in Current Affairs, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

You Can't Tell Them Your Address If You Don't Have One

The Wisconsin Supreme Court affirmed a decision of the Court of Appeals that reversed a conviction in a sex offender registration case.

Wisconsin requires a released offender to provide an address to authorities 10 days prior to release from prison. The defendant could not find housing within the time. 

From the majority opinion:

We begin by clarifying what is not at issue in this case. It is undisputed that Dinkins was required to register, and continues to be required to register, as a sex offender. It is undisputed that, as part of his registration, Dinkins is required to provide his address. This case is not about whether homeless registrants are "exempt" from registration requirements. They are not.

Rather, this case presents the narrow question of whether, under the circumstances where Dinkins attempted to comply with the registration requirements but was unable to find housing, he can be convicted of a felony for failing to notify the DOC of "[t]he address at which" he would "be residing" upon his release from prison. To resolve this question, we must interpret the sex offender registry statute. Statutory interpretation is a question of law, which we review independently of the determinations rendered by the circuit court and the court of appeals...

It is undisputed that Dinkins did not have a home of his own. The evidence in the record suggests that Dinkins made efforts to secure housing with relatives, but these efforts were unavailing. A DOC agent testified that, other than facilitating contact between Dinkins and his relatives, the DOC did not offer him additional assistance. The circuit court's finding that Dinkins was unable to provide the required information to the DOC because it did not exist, despite his attempt to provide the information, is not clearly erroneous.

There are concurring and dissenting opinions. (Mike Frisch)

March 13, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Law Students Get Beneficial Treatment, Judge Gets Suspended

The North Carolina Supreme Court has suspended a general court of justice judge for 75 days without pay.

The judge handled at least 82 traffic matters contrary to court procedures and general statutes. She was charged with adding cases to her traffic docket "with the understanding that [she] would enter favorable judgment in those matters."

The judge "acknowledge[d] there were times when she took copies of citations from acquaintances, individuals she knew from church and her community and from some of her students at Wake Forest Law School."

The Winston-Salem Journal has this report.

An editorial from the Journal suggests that the sanction may be unduly lenient. (Mike Frisch) 

March 13, 2012 in Judicial Ethics and the Courts | Permalink | Comments (1) | TrackBack (0)

Monday, March 12, 2012

Awash In Publicity

The Indiana Supreme Court has imposed a public reprimand of the elected prosecuting attorney for Marion County. Since his election in 2002, the prosecutor's office has brought nearly 100 murder cases and sought the death penalty in five cases.

The prosecutor was charged with "making public statements as a prosecutor that had a substantial likelihood of materially prejudicing an adjudicate proceeding and a substantial likelihood of heightened public condemnation of criminal defendants."

The allegations were in two counts - one involved a press conference and the other a press release. The hearing officer concluded that the rule violations were not proven.

The press conference involved a defendant who faces murder charges in other states. The prosecutor discussed DNA evidence, said the crime scene was "awash in blood," and stated that he was confident of a conviction. In fact, the defendant was never charged in Indiana.

The court agreed that the press conference did not violate Rules 3.6 or 3.8.

The press release involved a case in which seven family members had been murdered. The case garnered a significant amount of media attention.

The court found that  a portion of the statement fell "well outside" permissible comment. In particular, the prosecutor said he "would not trade all the money and drugs in the world for the life of one person, let alone seven."

The case discusses the application of the "substantial likelihood of material prejudice" test and the "safe harbor" provision of the rule. (Mike Frisch)

March 12, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No Conviction Needed To Impose Sanction For Tax Fraud

The California State Bar Court Review Department has recommended a two-year suspension of an attorney with reinstatement conditioned on proof of fitness and probation.

The attorney was found by a United States Tax Court judge to have fraudulently underpaid taxes for three years in an amount of approximately $157,000. A civil penalty imposed by the tax court was affirmed by the Ninth Circuit.

The bar court found that the attorney created a bogus lien and deeds of trust, concealed his interest in a partnership and concealed his income. The conduct involved his interest in an apartment building in which he owned a 1/3 interest.

The bar court further found that a criminal tax conviction was not required to impose a sanction. (Mike Frisch)

March 12, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

One Disbarred, One Censured

The New Jersey Supreme Court has decided two cases involving trust account violations. The sanctions imposed were quite different.

One attorney was disbarred, as the Disciplinary Review Board rejected the special master's finding of negligence and determined that the attorney had engaged in knowing misappropriation.

The attorney was in partnership with a part-time judge and was primarily responsible for running the law office. There were a number of problems including a burst pipe in an office wall that caused a severe disruption. The attorney used trust funds to deal with the problems.

When he told his partner of the improprieties, he said:

...well, I had to borrow some money from the trust, but I don't think it's going to be a big deal. It's the kind of thing if you get caught, they just slap your hand.

The second attorney was censured.

His misconduct was discovered in a random audit which revealed a shortfall of over $260,000. His wife had stolen the funds and he had not uncovered it, a fact "seemingly at odds with [his] concession that he had reviewed his attorney bank statements on a monthly basis." He restored the funds to the account.

He also lied to the Office of Attorney Ethics (apparently no big deal) and "did not take swift action to uncover the thefts, once he discovered...that his wife was making excessive transfers from the business account to her own personal account."

He had no prior discipline in 27 years of practice. (Mike Frisch)

March 12, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Considering the Med School Analogy

Posted by Jeff Lipshaw

I flew out to San Francisco from Boston yesterday.  About an hour into the flight, the flight attendant asked over the PA whether there was a medical professional on board, and I saw somebody up near the front of the plane hit the call button.  I had been discussing this very situation with my third-year medical student son a couple weeks ago, reacting to a post from my friend Howard Wasserman at PrawfsBlawg.  Howard told the story of a newly-graduated doctor flying in fear of being called on in such a situation, believing that she didn't have the practice skills to intervene.  Howard's point, if I can restate it, was that pointing to medical education as the model for "practice-ready" lawyers was a mistake, and that newly-minted doctors were just as "unpractice-ready" as newly-minted lawyers.

I wouldn't want a newly-minted doctor to perform neurosurgery on anybody I liked, but I thought Howard had overplayed the meaning of the anecdote.  My son advises me that invariably what you need on an airplane is an EMT, not a doctor.  (He tells me all med students are CPR-trained, but he'd be far more competent to diagnose a cough or a rash than to apply the CPR.)  If the only person on the plane to step up was a third year med student, I'd still think that person was more qualified to act as a GP doctor, relatively speaking, than the typical doctrinally-trained law grad would be to act as a GP lawyer.  Others may feel differently.

Having said that, and having observed my own education, my son's, and the education I'm now employed to help provide, I am still convinced that medical education, apart from internship and residency, effectively creates "doctors" by the time med students are in their third year. The great bulk of medical education takes place in three years - the first two in the classroom (culminating in the USMLE Step 1 exam), and the fourth being largely devoted to rotations in specialties and the residency placement process. The third year is the one that is brutally intense. On a outpatient service, the students spend something 10.5 hours a day, five days a week in the clinic, then go home and study for 2-3 hours more. On inpatient rotations, they go from 6:30 am to 5:00 pm in the hospital, and again go home to study for 2-3 hours. They have an exam at the end of each rotation.

There is an important institutional difference in medical education.  There's no doubt that med students get the benefit of public and private funding of the health care systems, but they are also care providers - they do things that if they didn't others would have to do.  Finding legal institutions capable of replicating this kind of intensity for law students is a problem (particularly for non-litigating lawyers), but the point is that no law student is going to approach the kind of practice readiness I perceive in a med student of equivalent tenure by doing fifteen credit hours (three hours a day of class time) a semester of even the most pragmatic skills oriented course work. Are students, faculties, administrators, law firms, courts, corporations prepared to create the kind of full-time (I mean thirteen hours a day) experience for the final two years of law school that might well leave one thinking "that's somebody who's a lawyer"? Because to do both the theory and the practice (as the med students do) would take that kind of commitment from all concerned.

(Cross-posted at The Legal Whiteboard)

March 12, 2012 | Permalink | Comments (0) | TrackBack (0)

The Legal Whiteboard

Posted by Jeff Lipshaw

As many of you know, Bill Henderson withdrew as an editor here (and at Empirical Legal Studies Blog) to devote all of his blogging energy to a new Law Professors Network blog, The Legal Whiteboard.  There's significant synergy between Bill's project and what we do here; Mike's tireless efforts in the area of disciplinary matters and professional responsibility have made this blog one of the "go to" sources in the field.  The Legal Whiteboard is going to focus on trends in the profession and legal education, and Bill has generously asked me to join as a co-editor over there as well. My interjections here tend to be about lawyers - practicing and academic - generally.  I'm delighted to report that I'll be cross-posting here and at The Legal Whiteboard for the foreseeable future.

I hope our readers add The Legal Whiteboard to their RSS feeds.

March 12, 2012 | Permalink | Comments (0) | TrackBack (0)