Saturday, April 21, 2012

The Metaphor of the Immediately Obsolescent Business Plan - And What Does it Mean for Educating Some Kinds of Lawyers?

Posted by Jeff Lipshaw

I am teaching the last two sessions of my Unincorporated Business Entities class (LLCs, partnership, and limited partnerships, with agency mixed in).   We're at the endgame section, dealing with death, divorce, dissociation, dissolution, and other dire dilemmas of deal dissatisfaction.   Until this point, teaching the default rules has been a little like teaching music scales and exercises, with the real fun (as in real life) coming from the riffs and variations and improvisations on the themes that show up in these complex situations.  But the relationship between knowing the notes and making the music as a business lawyer is so hard to get across.  I was thinking about that, Bill's post about Law Without Walls, and the tunnel vision of lawyering (and, don't get me wrong, tunnel vision is entirely appropriate for some sub-disciplines of the law!) that constitutes a part of the "practical skills" complaint about modern legal education.

ImagesIt's the "how did we come to this?" backstory of these business divorce cases that I find fascinating, and the usual lawyer's lawyer treatment of them is to perpetuate the myth of legal perfectability.   In other words, had the lawyers been smart enough to think the problem through, the contract would have solved everything.  (Theorists take note:  this is an equal opportunity category error.  Lawyer-economists think the contract would have forestalled opportunism; lawyer-moralists think it would have reified the promise.)  The alternative metaphor that occurred to me a couple days ago came from one of my former bosses, Larry Bossidy (above), who spent 34 years at GE (rising to Vice-Chairman), and when it became clear he wasn't going to get to run GE (there was another guy named Welch who happened to be (a) his good friend, (b) a year younger, and (c) doing a pretty good job), he took over an industrial conglomerate then known as AlliedSignal (it's Honeywell now).  Bossidy's point was that an annual operating or business plan was likely to be obsolescent almost by the time you finished creating it - competitors would announce new products; commodity prices would spike; war would break out.  That wasn't to excuse shoddy planning, but to say that you had to keep updating the game plan as the game progressed.

Having said that, the number one goal Bossidy set for AlliedSignal every year I worked there was "Make the Numbers."  Invariably, as one of the leaders of the business, as well as one of its lawyers, I explained that as shorthand for "do what you promised" or "keep your commitments."  This raises a real life conundrum.  If your plan is obsolescent almost immediately, then how is it realistic to keep your promises?  If you promised so little as to make the numbers even if the world went to hell in a handbasket, then it was a sandbag, not a real promise.   If you can't keep your promise, what do you do?   Resign?  Get fired?  This was always a problem of leadership and management, because it involved more the legal algorithms of promise, which focus almost entirely on the rights of the promisee and the obligation of the promisor.  Instead, the relationship needed to be one of trust, thoughtfulness, objectivity, reasonableness, and accommodation as between promisor and promisee.

BraucherWhy isn't the same thing true of a complex relational agreement, like a partnership agreement or an LLC operating agreement?  I suspect it is.  When we held our symposium at Suffolk last year centered on Charles Fried's Contract as Promise, Jean Braucher (Arizona, left), a close associate of Stewart Macaulay and the Wisconsin "law-in-action" school, talked about the morality of the marketplace being "less the stern morality of promise keeping as a morality of adjustment, release, and forgiveness in contractual relations."  Lisa Bernstein's Bernstein Lisa (Chicago, right) work with Southern cotton brokers suggested that "promise or pay" was not the accepted moral stance; instead the reason you gave for breaking your promise mattered in the promisee's decision whether to accept the promise-breaking as an acceptable business practice.  (Jean's paper is here; Lisa didn't publish a paper with us, but I summarized her presentation in my introductory essay.)  I've suggested (more abstractly) that the perception of a duty not to enforce a promise is the grease that keeps relationships moving; a strict focus on rights would be the equivalent of metal on metal and the whole engine would grind to a halt.

So...  If you want law school to be practical, and you want it to do more than train litigators (whose orientation is the enforcement or opposition of legal rights and duties - and where some practitioners get to be appropriately tunnel-visioned), and you want lawyers to be "practice-ready" when they get out, and you don't want a lot of interdisciplinary theory, what do you do?

[Cross-posted at The Legal Whiteboard.]

April 21, 2012 | Permalink | Comments (0) | TrackBack (0)

Friday, April 20, 2012

Mentor And Partner Not

An opinion from the Florida Judicial Ethics Advisory Committee:


(1) Whether a retired judge eligible to serve on assignment to temporary judicial duty may mentor a law firm’s associates in effective trial practice.


(2) Whether a retired judge eligible to serve on assignment to temporary judicial duty may assist a law firm in developing state-wide and multi-state alternative dispute resolution programs.


(3) If (1) or (2) are permitted, whether the senior judge may permit the law firm to announce the judge as a partner with the firm.

ANSWER: This question is moot based on the Committee’s responses to questions (1) and (2).

(4) If (3) is not permitted, whether the retired judge may maintain the status of senior judge but accept no judicial assignments so long as the relationship with the law firm exists.

ANSWER: This question is moot based on the Committee’s responses to questions (1), (2) and (3).

(Mike Frisch)

April 20, 2012 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Bad Guidance

The Oklahoma Supreme Court has suspended two attorneys (orders linked here and here) as a result of Alford pleas in a criminal matter.

Oklahoma's Own News 9 reports on the charges:

 After spending years living with accusations of bribing an officer, three Oklahoma City attorneys are now charged with their role in the alleged crime.

The charges against David Ogle, Sam Kerr, and Josh Welch came down from Oklahoma County District Attorney David Prater on Friday. The statute of limitations on the case is set to expire on August 22, 2010.

Ogle is charged with actually bribing an officer. Kerr is charged with offering a bribe. Welch is charged with obstructing an officer from his duties.

The case stems from a DUI case where an Edmond officer made an arrest. Court documents say the driver hired Sam Kerr to defend him. At the time, Kerr worked for attorneys David Ogle and Josh Welch at their firm.

After the DUI case was settled, the client still needed to resolve an issue with his driver's license with the Department of Public Safety. That's where Oklahoma County prosecutors say the bribery came into play.

The D.A. said in the summer of 2007, attorney Josh Welch contacted a retired Edmond Police Officer named Chris Caplinger. It is believed that the contact came at the suggestion of David Ogle on behalf of Sam Kerr.

It is alleged that a conversation about the DUI client resulted in a bribe. Kerr supposedly made arrangements for Caplinger to pay Edmond officer Danny Austill $500 to not show up for the DPS hearing. When Austill did not show up, documents say Kerr contacted Caplinger and told him, "Your buddy came through, there will be a check for you at the office."

However, Austill had already told a supervisor about the alleged bribery offers. His information launched an undercover investigation through Edmond police and the OSBI. Caplinger and another officer Andrew Adrande were arrested on felony charges back in 2007 for their roles.

David's Ogle attorney said his client is innocent. Mack Martin released the following statement to NEWS 9:

"I am saddened and disappointed that this has taken three years to result in the action that the District Attorney took today. David Ogle is like a brother to me, and I know of no finer attorney and no greater or ethical gentleman."

Sam Kerr's attorney said his client has not decided on a plea yet. John Coyle gave NEWS 9 this statement:

"Sam was a brand new lawyer when they say this occurred. He obviously received bad guidance."

Sam Kerr, who is no longer practicing law, is the great grandson of former Oklahoma governor and U.S. Senator Robert S. Kerr.

The court here ordered inquiry into the appropriate final discipline for the convictions. has this report on the pleas. (Mike Frisch)

April 20, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Cease And Desist

The Nebraska Supreme Court has enjoined the unauthorized practice of an individual who had been notified by the court's Commission on Unauthorized Practice of Law to cease and desist from his actions.

The Commission alleged that the individual had prepared pleadings and represented other persons in the district court. Certified mail to the individual was returned, but he left a voice message saying that the allegations were "lies and inaccuracies" and threatened to sue commission counsel for slander and libel.

He thereafter did not participate in the proceedings. (Mike Frisch)

April 20, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, April 19, 2012

"Shockingly Poor" Briefs Get Attorney Suspended

The New York Appellate Division for the First Judicial Department has suspended an attorney for two years and until further order as reciprocal discipline based on a sanction imposed by the United States Court of Appeals for the Second Circuit:

When respondent informed the Second Circuit's Committee on Admissions and Grievances that he waived his right to appear at a hearing and did not intend to present witnesses on his behalf, but would rely on his July 2009 response, the Committee issued a report without holding a hearing, relying on court records and respondent's submissions. It concluded that respondent had submitted briefs of "shockingly poor quality," replete with defects such as incorrect clients' names, inclusion of irrelevant boilerplate, and reference to evidence that had not been submitted. It observed that respondent's explanation that he had relied on a paralegal for some of his work, and had filed that work without reviewing it, constituted an admission that he had aided the unauthorized practice of law in violation of DR 3-101(A) and failed to supervise non-lawyer staff acting at his direction, in violation of DR 1-104[C] and [D]. It found that respondent had neglected numerous matters in violation of DR 6-101(A)(3), resulting in the dismissal of seven petitions. It also found that most of his filing of petitions in the wrong circuit resulted from a failure to read the records and, in any event, showed a lack of respect for and lack of candor toward the court. The Committee on Admissions and Grievances recommended a two-year suspension, with respondent required to present evidence of attendance at CLE classes in brief-writing and law office management before being permitted to resume practice.

(Mike Frisch)

April 19, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Meritorious But Unethical

A recent judicial ethics opinion from Oklahoma:

 Question: May a judge participate in a "Court School" program designed to help children, in a mock court scenario, to get more comfortable in preparing to testify in court in child abuse cases in which they were the alleged victim?

Facts: One of the programs of a Child Abuse Network is to conduct "Court School" designed to reduce a child’s stress and anxiety before the child must appear at a hearing, the object being to improve the credibility of the witness and competence as a witness, according to information generated by the local District Attorney’s Office. The release states that this is a collaborative effort of the Child Abuse Network, District Attorney’s Office and the County Bar Association. The judge posing the question states that the Executive Director of the County Bar Association advised that he is unaware of any present involvement of the County Bar with the program. The website of the District Attorney’s Office states "Court School is needing voluntary judges. Court School is put on by the Victim Witness Center. It is a mock court scenario to help kids get used to a courtroom before their court dates. Court School meets from 6-7. The dates volunteers are needed for the year are attached. Please let me know if you are able to help on any of these dates. Thank you." This communication was sent to the judges of the county.

 Answer: Such participation is prohibited by the Oklahoma Code of Judicial Conduct.


 A judge acts on behalf of the judicial system and the system must maintain independence and impartiality. That the judge participating in such a program would not participate as a judge in the individual case does not alter the reality or perception created.

Because of the unique position a judge holds in our constitutional system of government, this is but another example of a judge being prohibited from participating in a project of undoubted merit, just as a judge is prohibited from fund raising for good and worthwhile projects, or being prohibited from exercising civic responsibility to engage in political activities.

(Mike Frisch)

April 19, 2012 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Lawyers Regulating Lawyers Works Well For Lawyers

As some may know, I was a bar prosecutor in the District of Columbia from 1984 to 2001. You may also be aware that I previously have expressed concerns about the D.C. bar discipline system.

In particular, my concerns have centered on the most powerful  player in the system --the Board on Professional Responsibility ("BPR"). In sum, I have long held the view that the BPR as an institution cares a lot more about protecting the "parochial or self-interested concerns of the bar" than its stated mission to protect the public from unfit attorneys.

A case will be argued at 9:30 this morning before the D. C. Court of Appeals that brings this issue to center stage. The argument can be accessed in real time at this link. It will be held in the main courtroom.

The attorney was convicted of theft in South Korea. The theft took place on a flight from the United States to South Korea. Bar Counsel reported the conviction and, after receiving briefs, the Court entered an order suspending the attorney and directing the BPR to determine whether the crime involved moral turpitude.

The BPR decided something quite different. It decided that a foreign conviction is entitled to no weight as a matter of bar discipline. Not this conviction --all convictions.

As far as the BPR is concerned, a D.C. bar member convicted of embezzlement in the United Kingdom need not fear any disciplinary consequences here that flow from the conviction. Likewise a Canadian murderer. The BPR essentially wants Bar Counsel to have to retry the foreign criminal case before any sanction can be imposed.

Since Bar Counsel has subpoena power of 25 miles from the District, good luck with that.

In its brief to the Court, the BPR argues that, if the court rejects the preferred option of completely ignoring a foreign conviction, then it should be "especially skeptical and demanding" in its treatment of such convictions.

Sure it should --if the goal is to provide maximum protection to convicted lawyers. If the goal is to protect the public and uphold the integrity of the legal profession, not so much.

The globalization of law practice makes this problem more than a theoretical one.

The Court's rules state that

The license to practice law in the District of Columbia is a continuing proclamation by this Court that the holder is fit to be entrusted with professional and judicial matters, and to aid in the administration of justice as an attorney and an officer of the Court. It is the duty of every recipient of that privilege at all times and in all conduct, both professional and personal, to conform to the standards imposed upon members of the Bar as conditions for the privilege to practice law.

The BPR approach would turn this proclamation into a form of false advertising.

The BPR report can be found at this link. The attorney's name is Jinhee Wilde.

I must confess that I have not previously encountered the Doctrine of Especially Skeptical and Demanding, although I think it accurately captures the BPR's attitude toward effective regulation of the District of Columbia Bar.

 I only hope that the Court has a different view of its obligation to uphold the integrity of the legal profession. (Mike Frisch)

April 19, 2012 in Bar Discipline & Process | Permalink | Comments (2) | TrackBack (0)

Wednesday, April 18, 2012

Drug Purchase From Client Draws Suspension

The Minnesota Supreme Court has imposed a suspension of a minimum of 90 days of an attorney who purchased a controlled substance from a client.

The attorney pleaded guilty to fifth-degree possession of a controlled substance. The trial court stayed adjudication and placed the attorney on probation. The attorney must comply with the probationary conditions on reinstatement. (Mike Frisch)

April 18, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Mistaken For Jew, Employee May Sue

The New Jersey Appellate Division has reversed an order of summary judgment as to two of three defendants sued under the New Jersey Law Against Discrimination ("LAD").

The plaintiff (a truck driver) had claimed to be subject to regular anti-Semitic comments from the defendants, who mistakenly thought that he was Jewish. The trial court held that the fact that the plaintiff was not in fact Jewish barred the action.

The court here found that conclusion to be erroneous as a matter of law:

...the individual defendants, all of whom were plaintiff's supervisors, were motivated by their belief that plaintiff was Jewish, and thus engaged in "real discrimination and harassment" of the kind that the LAD seeks to eliminate...That their target happened not to be Jewish should not serve to excuse their conduct.

The defendants had initially denied the comments had been made until a DVD was produced by the plaintiff that had such expressions as "Jew Bag," "F... you Hebrew," "Jew Bastard," "If you were a German, we would burn you in the oven," and "Only a Jew would argue over his hours."

At his deposition, one of the defendants admitted that the DVD was accurate and that he "used the song Hava Nagila as the ring tone for calls on his cell phone from plaintiff." (Mike Frisch)

April 18, 2012 in Law & Business, Law & Society | Permalink | Comments (0) | TrackBack (0)

Reprimanded ALJ May Drink

The Michigan Attorney Discipline Board has vacated conditions imposed by a hearing panel in a case where an attorney pleaded guilty to operating a vehicle while impaired and subsequently violated a condition to not possess or consume alcohol.

The hearing panel imposed a reprimand. The Grievance Administrator sought and obtained an amendment to the order that required that the attorney abstain from alcohol use for one year.

The board vacated the condition, concluding that '[t]he purpose of requiring respondent to stop drinking for one year has not been articulated."

The board noted that the attorney "has been and remains vigorous and physically active, and still handles a substantial caseload as an administrative law judge, all at the age of 80...There is no evidence that respondent lacks the ability to moderate or stop his drinking as necessary or appropriate to abide by applicable law and function professionally." He complied with the conditions of the criminal sentence. (Mike Frisch)

April 18, 2012 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

State's Attorney Immune From Police Officer's Claims

The Vermont Supreme Court has held that a state's attorney is absolutely immune in a lawsuit brought under the following circumstances:

This case commenced in February 2010 when plaintiff, then employed as a police officer with the South Burlington Police Department, filed a complaint against defendant, the Chittenden County State’s Attorney, stating claims for defamation, intentional infliction of emotional distress, and intentional interference with plaintiff’s employment. The complaint alleged that defendant, formerly a private lawyer and a member of what plaintiff characterized as the Vermont “Drug Bar” representing criminal defendants, harbored an animus against plaintiff due to his police work. Plaintiff claimed that as state’s attorney defendant had “maliciously pursued a course of action . . . to undermine plaintiff’s work and credibility in the law enforcement community.” As alleged in the complaint and in plaintiff’s later responses to discovery, defendant’s tortious misconduct included meeting with plaintiff’s supervisors to criticize his job performance and falsely accuse him of dishonesty; declining to file charges or seek search warrants based on plaintiff’s affidavits; threatening not to work with plaintiff and thereby end his career if plaintiff attempted to bypass the State’s Attorney’s office and obtain warrants directly from the trial court; criticizing plaintiff’s work when he was being considered by the State Police to serve on its Drug Task Force; impugning plaintiff’s honesty to other prosecutors; encouraging the filing of a civil-rights lawsuit against plaintiff and testifying falsely in that action; and “leaking” harmful information about plaintiff to criminal defense attorneys.

The court concluded that immunity bars the claims under state law:

 It was...within defendant’s general authority as the chief county law enforcement officer to review plaintiff’s job performance; discuss it with other prosecutors in the office, plaintiff’s supervisors, and the State Police; and take such measures as defendant deemed fit—including declining to work with plaintiff in the future—in the event that plaintiff attempted to circumvent or failed to follow standards and procedures. Supervising the investigative activities of police officers that result in the referral of cases for prosecution and reviewing those matters with other law enforcement personnel must, as a practical matter, fall within the general oversight authority of the state’s attorney as the chief law enforcement officer in the county.

(Mike Frisch)

April 18, 2012 | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 17, 2012

Relief Denied For In-Court Murder

The Missouri Supreme Court has affirmed the denial of post-conviction relief to a man sentenced to death for the murder of his wife during a circuit court hearing regarding the dissolution of the marriage.

The petitioner secretly brought two handguns to the hearing in a briefcase. He opened fire during the hearing. His wife was killed. He wounded his attorney and his wife's attorney, a bailiff and a security guard. He shot at the judge, an investigator for the county prosecutors, and three police officers. They returned fire and hit him nine times, including two in the head.

He was convicted of murder and sought review on claims of ineffective assistance of counsel after the conviction was affirmed.

He is facing a death sentence. (Mike Frisch)

April 17, 2012 | Permalink | Comments (0) | TrackBack (0)

Zitrin on Crisis in Funding of California Courts

Richard Zitrin (UC-Hastings) has sent professional responsibility teachers his recent opinion piece on the tragedy of defunding courts in California--and on a rally in San Francisco tomorrow before City Hall. I asked whether we could link to a PDF of it, and he graciously agreed. Here it is: Download TMC 2012 - 7 on line - Lack of Court Funding Hampers Access 120413  "The numbers themselves are staggering," he reports, but explains the real world effects well. I should add that it is (c) 2012 by Richard Zitrin and that it was first published online and in the San Francisco Recorder, an ALM newspaper, on April 13. Thanks, Richard. [Alan Childress]

April 17, 2012 | Permalink | Comments (0) | TrackBack (0)

An Adverse Inference

An attorney who is the subject of a series of complaints regarding entrusted funds has been suspended pending further proceedings by the New York Appellate Division for the First Judicial Department.

The attorney had asserted Fifth Amendment rights in response to a subpoena:

Although an attorney cannot be suspended on an interim basis solely for asserting his Fifth Amendment right against self-incrimination, he cannot assert such a right merely to avoid production of records or documents which an attorney is required to maintain pursuant to the New York Rules of Professional Conduct...Further, this Court has held that an adverse inference may be drawn from a respondent's invocation of the Fifth Amendment privilege against self-incrimination, and there is no reason not to draw such an inference here. (citations omitted)

(Mike Frisch)

April 17, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No Difference Between Rialto And New York City

A private attorney retained by the City of Rialto to conduct an investigation of a firefighter suspected of abusing leave is entitled to qualified immunity, according to a decision issued today by the United States Supreme Court.

Chief Justice Roberts concluded that the fact that the attorney was not a permanent, full-time city employee did not provide a justification for denying qualified immunity:

New York City has a Department of Investigation staffed by full-time public employees who investigate city personnel, and the resources to pay for it. The City of Rialto has neither, and must rely on the occasional services of private individuals such as [the attorney] There is no reason Rialto's internal affairs investigator should be denied qualfied immunity enjoyed by the ones that work for New York.

Justices Ginsburg and Sotomayor filed concurring opinions.

The unanimous court reversed the decision of the United States Court of Appeals for the Ninth Circuit.(Mike Frisch)

April 17, 2012 | Permalink | Comments (0) | TrackBack (0)

Policy Limits

The Tennessee Court of Appeals has reversed and remanded an order dismissing a case against a law firm that had defended a personal injury claim against a commercial driver.

The plaintiffs settled for insurance policy limits of $500,000. As part of the seetlement, they signed a release of all claims against the law firm and insurance company as well as the defendants. The plaintiffs later discovered that defendants also had a substantial general insurance liability policy of a million dollars.

Plaintiffs then sued the attorneys for the defendants for fraud in the inducement of the settlement agreement. The trial court granted summary judgment based on the language of the release.

The court here held that the trial court erred in refusing to hear extrinsic evidence of fraud. (Mike Frisch)

April 17, 2012 in Law & Business, Law Firms | Permalink | Comments (0) | TrackBack (0)

Gone For Good

The Ohio Supreme Court has permanently disbarred a former assistant prosecutor for the city of Xenia.

The attorney engaged in misconduct in four matters. The most serious violations involved the misappropriation of approximately $40,000 entrusted to the attorney to pay estate taxes.

The court rejected findings below that attorney had failed to file a brief on behalf of the city and lied about it to a government official. the charges were based on hearsay, the court opinion in the underlying case did not identify the attorney and the opinion was not a certified copy.

The attorney defaulted on the disciplinary charges. (Mike Frisch)

April 17, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Out At The Plate

An Illinois hearing board has recommended a suspension of one year for an attorney who was found to have engaged in misconduct in two matters.

The attorney took over a civil case on behalf of a plaintiff shortly before trial. The former lawyer asserted a lien. The attorney had the case dismissed and refiled. The hearing committee found that the attorney engaged in dishonest conduct designed to deprive former counsel of his fee.

The other case also involved a personal injury claim. The client worked for a friend of the attorney. The friend and the attorney shared season tickets to the White Sox. The client had a $20,000 settlement offer when (as she testified) she first met the attorney at a game:

Although Respondent denied it, we also find he knew Ms. Bird had already received a settlement offer of approximately $20,000.00 when he took over the case. Both Ms. Bird and Mr. Miller testified Respondent agreed to handle the case after they discussed the matter during a White Sox game, which they attended together. Although no one could remember the exact date of the game, both Ms. Bird and Mr. Miller gave similar accounts of the discussion that led to Respondent being hired. Ms. Bird testified when they told Respondent about the accident, her injuries and what the insurance company had offered, Respondent represented he could get her more money and could probably double the offer. Mr. Miller testified he specifically recalled teasing Respondent about how easy this "attorney stuff" was before telling him he had been able to obtain a $20,000.00 settlement offer for Ms. Bird. Like Ms. Bird, he also recalled Respondent telling them he could get Ms. Bird "a lot more money." We found Mr. Miller's testimony regarding this matter credible. While Ms. Bird clearly had an interest in the case, Mr. Miller did not. In addition, Mr. Miller apparently later had a falling out with Ms. Bird, but remains friends with Respondent. Thus, he would have absolutely no motive to fabricate what occurred, especially since his testimony was unfavorable to Respondent.

In contrast, we do not accept Respondent's testimony concerning the circumstances surrounding his hiring. Respondent claimed he was hired well before the White Sox game and knew nothing about either settlement offer. His testimony is not only contrary to that of the other two witnesses, but it is inconsistent with some of the materials in his own file. The earliest item that appears in Respondent's file is the 11 page fax sent to him by Ms. Bird on May 30, 2007. There is nothing in his file to support his testimony he was retained 30 to 45 days prior to receiving this fax. Moreover, although Respondent insisted he knew nothing about either offer, his testimony is directly contradicted by the fact a copy of the $19,091.00 offer is contained in his own file among the 11 pages of materials faxed to him by Ms. Bird. This inconsistency seriously undermines Respondent's credibility regarding this entire matter.

We also find Respondent's testimony that he was unaware of the settlement posture of the case when he took it on is inherently incredible and improbable. Respondent, by his own description, is an experienced personal injury attorney, who has handled hundreds of cases. It is simply not believable he would take on a case, knowing negotiations had already taken place and various settlement figures had been discussed, without determining the details of those matters. Nor does it make sense he would not have learned of the offers, either from his own client or from the insurance company.

The attorney was found to have charged an unreasonable fee that was not reduced to writing. (Mike Frisch)

April 17, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, April 16, 2012

Judge No Longer

Tennessee General Sessions Judge James Taylor has resigned from his judicial office effective May 1, 2012. He agreed to immediate suspension until the effective date of the resignation. As a result, formal charges will be "retired" subject to being reinstated if he becomes subject to the Code of Judicial Conduct in the future. has this report:

In an agreement reached Friday with the Tennessee Court of Judiciary, James Taylor is immediately suspended from his position as general sessions judge in Hawkins County and will resign on May 1.

Upon his resignation, the formal charges against him will be retired, according to the agreement. But the settlement will not apply to any civil lawsuits filed against him that claim mishandling of clients' money and sexual harassment.

Taylor, who also is an attorney, was accused of taking more than $9,000 from a client for personal benefit and claiming payment for services that he didn't perform.

He is under investigation by the Tennessee Bureau of Investigation. No criminal charges have been filed. He also is the defendant in civil lawsuits alleging misappropriation of money from clients and sexual harassment.

Earlier, Taylor had invoked his right against self-incrimination when responded to the Court of the Judiciary's charges against him. Taylor's formal answer to the Court of the Judiciary ws signed only by him, but referred to him in the third person.

(Mike Frisch)

April 16, 2012 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Son Of A Judge

The Tennessee Court of the Judiciary has reprimanded a general sessions court judge.

The judge's son was arrested for a DUI on a saturday evening. The judge ordered his release on the next day. The judge "indicated that [he] had no intention of hearing the case against [his] son and had asked for a special judge to be appointed to hear the case." (Mike Frisch)

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