Legal Profession Blog

Position Available: Wyoming Law & Ethics Chaired Professorship

This comes from Diane Courselle, the chair of the Appointments Committee at the University of Wyoming College of Law. It's long so most of it follows the break.

University of Wyoming College of Law Clinical Excellence Position The University of Wyoming College of Law seeks to hire a tenured, tenure-track, or distinguished visiting faculty member for the Carl Williams/Excellence Professorship in Law and Ethics beginning in the 2013-2014 academic year. The individual selected for this position will serve as Director of the College’s Legal Services Clinic, teach Professional Responsibility, and an additional doctrinal course. The College of Law encourages expressions of interest from applicants who have established, or are establishing, national reputations as teachers and scholars in clinical education and ethics.

Despite its small size, the UW College of Law has a rich history of, and ongoing commitment to, providing students with meaningful opportunities for experiential learning. We have a vibrant experiential learning program which includes four clinics (Legal Services, Domestic Violence, Defender Aid, and Prosecution Assistance), numerous externships, and other programs such as an estate planning/wills practicum, an international human rights practicum and a variety of other skills courses, such as our natural resources practicum. In hiring for the Carl Williams/Excellence Professorship in Law and Ethics, we seek to further enhance the College of Law’s status as a model for providing outstanding experiential learning opportunities for students.

The Legal Services Clinic provides third year law students the opportunity to represent low income clients in civil legal matters. Student interns in the Legal Services Clinic, under the supervision of the director, handle a wide array of cases including divorce, child custody, modification of divorce, domestic violence protection orders, stalking orders, guardian ad litem appointments in juvenile and domestic relations cases, consumer debt, public benefits, return of property, and immigration issues. The clinical programs operate pursuant to Wyoming Supreme Court rules that permit third-year law students to practice law under the supervision of a UW law professor or a Wyoming Bar member.

During the academic year, the Legal Services Clinic is structured as a 3-credit course which students may take for one or two semesters; clinic enrollment is usually 6-8 students per semester. The clinic also operates during the summer and is staffed by 3-4 student interns who are paid to work full-time, as well as a few other students who take the clinic for credit. The faculty director of the clinic is assisted by a student director who handles some of the administrative responsibilities of the clinic.

At UW, faculty members teaching in the clinical programs hired as tenured or tenure-track faculty enjoy the same status as the rest of the law faculty, including parity in salary and benefits, rights to the tenure and promotion process, the same voting rights, eligibility for sabbaticals, eligibility for summer research stipends, eligibility for professional development travel funds, eligibility for funds for research assistants, rights to the same office space and support staff, and the same academic titles as appropriate per appointment and promotion. (Clinic directors receive supplemental compensation for supervising the clinics during the summer). The successful candidate will be subject to the same core responsibilities as the rest of the law faculty and, as such, will be required to demonstrate excellence in teaching, scholarship, and service in accordance with the standards and time lines established by University of Wyoming and College of Law tenure and promotion policies, dependent on whether hired for a tenured, tenure-track, or visiting position.

We seek applications from candidates with (1) a J.D. degree, (2) a strong academic record, (3) membership in a state bar, (4) significant legal practice experience, (5) experience teaching in a law school clinic setting, (6) a record of scholarship or a demonstrated potential to produce high-quality scholarship; and (7) a demonstrated commitment to clinical teaching and supervision. (Admission to the Wyoming State Bar is not required so long as the applicant is a member in good standing of the bar of another state).

Application Procedure: Applications will be accepted until the position is filled. However, to be assured full consideration, candidates should submit their materials by October 1, 2012. Applicants should submit (1) a cover letter, (2) a CV, (3) a list of three references with their contact information, and (4) a one-page statement of the applicant’s philosophy on teaching and supervision in an experiential learning setting. These materials should be sent either electronically or in hard copy to:

Professor Diane Elizabeth Courselle, Chair, Faculty Appointments Committee University of Wyoming College of Law Dept. 3035 1000 E. University Ave. Laramie, WY 82071,   dcoursel@uwyo.edu,  307-766-3118

The University of Wyoming is committed to diversity and endorses principles of affirmative action. We acknowledge that diversity enriches and sustains our scholarship and promotes equal access to our educational mission. We seek and welcome applications from individuals of all backgrounds, experiences, and perspectives. The University of Wyoming is dedicated to ensuring a safe and secure environment for our faculty, staff, students and visitors. To achieve that goal, upon hire we conduct background investigations on prospective employees prior to commencing employment.

[Jeff Lipshaw]

Deification, Demonization, Order, Chaos, Justification, and Rationalization in Legal Education

Posted by Jeff Lipshaw

My co-author, Marcia McCormick (left) , a Saint Louis University law professor affected by the recent deanship resignation and replacement debacle, has some wise thoughts about false dichotomies implicit in the current "discussion" over the cost and form of legal education.   

But Marcia was being thoughtful, and judging by some of the comments, no good deed goes unpunished.   Here's some support for her view, and if it's unduly reasonable, I'll just have to take my punishment too.

One of the false dichotomies I've observed over the course of a long career in and out of academia (more out than in - twenty-six years of law firm and in-house, managing, hiring, firing, etc.) is the view that the world divides up neatly into gods and demons.  Marcia's post highlights and critiques the perfect storm of deification and demonization when in the face of increasingly scarce resources (see Jerry's post), (a) there's a good old-fashioned turf war, (b) in law school, (c) at a time when all of the contending protagonists and antagonists feel the warm glow of victimization and justification.

Why turf war?  Marcia refers to warring dualistic tropes, and my take is that each one is tied to a particular fight over turf. To paraphrase James Carville, it's the scarce resources, [pejorative]! Education may not be "business," but it is an institution governed by pretty basic economics, and cash does fuel the engine.  Everybody (including me) has a stake, and when the scarce resources are getter scarcer (corporate legal budgets, good lawyer jobs, raises, summer stipends, full-time tenure track jobs, etc.), it's awfully hard to separate out one's adaptive and atavistic instincts for survival from one's dispassionate assessments.  Campaign rhetoric isn't meant to be subtle; it's meant to rally the troops.  And objectivity is a nice ideal, but don't tell that to somebody in a metaphoric foxhole just trying to survive the battle.  (I'm putting aside real foxholes and their physical equivalents, though even that dichotomy may get blurred.)

Why law school?  No profession and no academic discipline conflates the "is" and the "ought" like law.  (There's great work being done on the "is" of legal education, by the way, whether by my co-bloggers here, or by people like Brian Tamanaha.)   The question is what conclusions we derive from it.  I'd like to stamp on every law student's orientation folder the phrase "Justice ≠ Truth."  That is, we all have our own idealization of a perfectly just world in which everything is as it ought to be.   In many ways, we define ourselves by how we account for the gap between what everybody would agree is true, and what each of us individually thinks is just. 

That's the problem of both natural and human evil.  How do you explain babies dying in tsunamis?   How do you explain Aurora?   How do you explain unanticipated shifts in supply and demand?  But, as they say, stuff happens, much of which seems to be unjust, and law is one human institution (vendettas, perp walks, and anonymous internet postings, for example, being others) that attempts in its own way to redress some of the stuff that seems unjust.  (See this recent post on PrawfsBlawg for a nice example of how one person's idea of justice can be another person's outrage.)   

Why the warm glow of justification and rationalization?   This is Marcia's point about law school being a place in which we teach students a particular method for finding order in chaos.  Legal argumentation is a perfectly acceptable way of translating your adaptive and atavistic instincts about your turf (whether you are defending yours or invading another's) into something idealized, like justice.   [Redress of injustice] + [turf war] ⇒ [lawyer as warrior].   One of my law firm mentors, a great commercial trial lawyer, used to observe that the usual characterizations of plaintiff and defendant didn't matter when two firms were suing each other.  "No matter which side you are representing," he would say, "your job is to establish that the other side was the ***ker, and your side was the ***kee."  Why?  Because that's consistent with the way, despite all of our modern trappings, we really want to see the world - populated by gods and demons so that all of the random **** makes sense.  (See my friend and colleague Gabe Teninbaum's Michigan State Law Review article, Reductio ad Hitlerum: Trumping the Judicial Nazi Card.)

Some thoughts.  Here are the couple paragraphs from Marcia's post I think are so profound:

I think there is great value in legal scholarship. The public benefits by getting legal and government structures that make real people's lives better. Students benefit from the scholar's ability to turn chaos into order and communicate both the chaos and the order to someone who hasn't done the same work. The students have to start with order and see how it is constructed from chaos and how to explain that before they can learn to do the same thing, which really, is what lawyers do for their clients.

Teaching, of course, is vital, but teaching requires learning, and learning is not something that occurs within the teacher. Learning occurs inside the head of the student, and students have to learn, not just information, but more importantly to perform a process that is fluid and adaptable, and to master a number of difficult skills, internal and external. We can't just open the top of a student's head and pour in the learning. Most of the law professors I know and have worked with take this very seriously and constantly work at ways to accomplish this for their students who have different needs and abilities, but we don't talk much publicly on how we do that.

The ability to learn is what mediates the perfect storm of self-interest, advocacy, and justification. But that's a higher order process because it means thinking about why you are thinking what you are thinking.  Or, in other words, it means having a disposition in which you are at least sometimes amenable to the possibility that the way you are putting order to chaos may be affecting your conclusions.  

And don't tell me that's just theoretical mumbo-jumbo.  In an essay I posted recently, I referred without naming them to a couple of the best lawyers with whom I had ever negotiated.  I'll out one of them now.  I was recalling, among others, David A. Katz of Wachtell Lipton, when I wrote this:  "Some of the best negotiators I have ever met (their names would not surprise you) would turn to their clients and say out loud words to the effect, 'Do you understand what their concern is?  That’s a good point.  We need to figure out a way to accommodate it.'"  

To do what David did, not only do you have to be able to turn chaos into order by taking the multitudinous data life presents and squeeze them into an algorithm like [duty + breach + cause + damage ⇒ recovery], but to hold that algorithm in mind while you simultaneous understand that there are other ways, from other perspectives, of organizing the same data.   That's what I write about, and it's what I try to teach.

In a different place, I wrote this:

There is, moreover, a link between judgment, learning, and leadership. For academics (and legal ones particularly), the challenge is discovering that “scholarship” is just a term of art for a particular product of people who ply their trade in academia. F. Scott Fitzgerald’s often-misquoted dictum is deeply insightful. He says first: “The test of a first-rate intelligence is the ability to hold two opposing ideas in mind at the same time and still retain the ability to function.” Being truly able to learn means that you have to will yourself to understand why someone would hold an idea that is opposed to yours; thus, in that moment of learning, you hold both ideas. Somebody can be a “scholar” for fifty years and never have one of those epiphanies.

When I was hiring lawyers to be general counsel to an organization, my view was that I could always teach a skill.  And, on a regular basis, I hired litigators and patent lawyers who had never seen a business negotiation or managed an acquisition or counseled a CEO.  But I'm still not sure I could teach David's "skill" to a person who didn't have the inclination to be a learner in the first place. 

But even counseling as David did is easy compared to seeing alternative forms of order in chaos when you have skin (or turf) in the game yourself, the stakes are high, and somebody seems destined to lose.  

Which is why I presume all forensic dichotomies, particularly those in which gods are on one side and demons the other, come with a presumption of falsity.

[Cross-posted at The Legal Whiteboard.]

Submission Invitation - Notre Dame Journal of Law, Ethics and Public Policy

Via e-mail from Breanna Houghton:

The Notre Dame Journal of Law, Ethics and Public Policy is currently soliciting articles for publication in our upcoming Spring 2013 issue. The issue will focus on the legal, ethical and policy considerations on a variety of important public policy issues currently facing the country. The Journal is unique among legal periodicals because it examines public policy questions within the framework of the Judeo-Christian intellectual and moral tradition. The Journal seeks to create a dialogue of ethical issues that is inclusive of diverse perspectives.  The Journal has a national audience of persons actively involved in the formulation of public policy, and often includes timely pieces from a broad spectrum of prominent scholars and officials.  Past contributors include Presidents George W. Bush and Ronald Reagan, Justice William J. Brennan, Secretary-General Kofi Annan, Judges Richard Posner and Diarmuid O’Scannlain, Senators Bill Bradley and Orrin Hatch, Governor Mario Cuomo, Mayor Rudolph Giuliani, Father Richard John Neuhaus, and Michael Novak, among others. The Journal’s unique focus is widely recognized, as demonstrated in citations to theJournal by various state and federal courts, including the United States Supreme Court. This edition promises to be an interesting one, including a timely piece by former Governor Jeb Bush.

If you are interested in submitting a piece for publication, please contact me directly at (505) 280-8334, or via e-mail at bhoughto@nd.edu.  Should you wish to examine a prior issue, the Journal would be pleased to provide you with a copy.  On behalf of myself, the Journal, and the University of Notre Dame, thank you for your kind consideration.

[Posted by Jeff Lipshaw]

Midas Touch

The District of Columbia Court of Appeals has granted the reinstatement petition of an attorney disbarred on consent in 2003 as a result of a Virginia criminal conviction.

The offense (which the attorney continues to deny) involved an incident in which a jury found he had cut the brake line of his girlfriend's car. As a result, her brakes failed and her car crashed. She was not injured.

The court majority noted that the reinstatement raised an issue of first impression. The petitioner denied his guilt at trial and on appeal. He persisted in that denial in the reinstatement. The court found that the continuing denial did not preclude reinstatement. Rather, the petitioner recognized the seriousness of the misconduct by seeking and responding to therapy.

The court agreed with Bar Counsel that reinstatement was appropriate notwithstanding his denial of culpability in the criminal case and an "regrettable" incident at Home Depot in 2009 that resulted in an arrest.

Judge Steadman dissented and agees with the Board on Professional Responsibility that reinstatement is premature. (Mike Frisch)

All In The Family

The New York Appellate Division for the Second Judicial Department has ordered the disbarment of an attorney on these facts:

On August 12, 2010, the respondent pleaded guilty before the Honorable Bonnie Wittner, in Supreme Court, New York County, to attempted grand larceny in the second degree, in violation of Penal Laws §§ 110.00 and 155.40, a class D felony. On December 21, 2010, the respondent was sentenced to five years' probation, and directed to pay a $300 surcharge, a $50 DNA fee, and a $25 crime victim assessment fee, with an order of protection and other conditions. As revealed in the plea minutes, between the period from approximately June 20, 2008, through August 21, 2008, the respondent and another, acting together, attempted to extort in excess of $10 million from David Blitzer, the respondent's son-in-law.

New York Criminal Law Bolg reorted on the underlying criminal case:

Onetime Smurfs owner, lawyer Stuart Ross is in jail because of an alleged plot to extort over $11 million from his wealthy son-in-law David Blitzer. New York Daily News reports that his New York criminal defense attorney, Mr. Matthew Myers has said that Stuart Ross can't afford his $200,000 bail.

Stuart Ross allegedly thought he could get some money from his son-in-law by threatening to ruin his reputation. We all know that in-laws can sometimes be considered outlaws, but this father in law's alleged actions are a little obscene.

His New York criminal defense lawyer will have his work cut out for him because according to court documents, Stuart Ross didn't even spare his own daughter, Allison Blitzer. He allegedly told her that he hoped that her fetus dies while she was pregnant. His daughter also claims that he told her that the tombstone "should be carved with a vile obscenity."

I don't think Papa Smurf can salvage that relationship with his wisdom or magical brews.

It is claimed that when the threats against both the son-in-law and daughter got worse, Ross offered to leave them alone if they gave him $5.5 million. New York Daily News says that Judge Bonnie Wittner wrote: "These threats escalated to a point where Ross, through his attorney, defendant Jackson, told Blitzer's attorney, Roger Stavis, that for $5.5 million, Ross would not try to visit his daughter or grandchildren and would stop harassing Blitzer and contacting his business."

The Wall Street Journal had this story. (Mike Frisch)

Sniffen Scratched

The Maryland Court of Appeals has accepted the consent to disbarment of attorney Kevin Sniffen.

The United States Attorney's Office described his criminal plea:

Baltimore, Maryland - Kevin Sniffen, age 50, of Phoenix, Maryland, an attorney licensed in Maryland, pleaded guilty today to conspiring to commit wire fraud arising from an investment fraud scheme.

 The plea agreement was announced by United States Attorney for the District of Maryland Rod J. Rosenstein; Special Agent in Charge Richard A. McFeely of the Federal Bureau of Investigation; and Acting Special Agent in Charge Eric C. Hylton of the Internal Revenue Service - Criminal Investigation, Washington, D.C. Field Office.

 "People should seek independent advice before investing their money," said U.S. Attorney Rod J. Rosenstein.

 "Promoters of investment fraud schemes like this one prey upon trusting investors and then steal their hard earned money,” said IRS Special Agent in Charge Eric Hylton. "IRS Criminal Investigation is committed to investigating these schemes in an effort to protect the financial well being of the American public.”

According to his plea agreement, Sniffen’s co-conspirators targeted individuals seeking investment opportunities or commercial real estate development lending in Maryland and elsewhere, including a Bowie, Maryland hotel project. Victim investors were instructed that in order to obtain loans for commercial real estate projects, and in exchange for a high rate of return, the purported lenders required that large sums of money be deposited in an escrow bank account to show “liquidity,” and that Sniffen was the only attorney assigned as escrow agent. All of the escrow agreements used to defraud the lender-investors provided that no person other than the victims had the ability to remove the escrowed funds without the victims’ permission.

 From at least August 2009 to August 2011, Sniffen and his co-conspirators defrauded investors by fraudulently removing the escrowed funds. Typically within one or two weeks after the deposit by the investor, Sniffen and his co-conspirators withdrew the victim’s funds from the escrow accounts to pay the co-conspirators’ business and personal debts or to make “lulling” payments to other victim investors.

 Sniffen and his co-conspirators attempted to cover up the fraud by: issuing false verifications of deposits and false bank statements regarding the amount of escrowed funds; falsely representing in emails and by phone the balance of escrow funds and the date when the investors’ money would be returned; and returning part of the victim’s investment using funds fraudulently obtained from other investors. 

Sniffen and his co-conspirators improperly obtained funds from investor victims in excess of $14 million.

(Mike Frisch)

Attorney Charged With Evading Service

The Illinois Administrator has filed a three-count complaint alleging ethical misconduct by an attorney.

Counts One and Two allege that the attorney converted estate funds and made misrepresentations to new counsel.

Count Three involves allegations that the attorney evaded service of a court order:

 On September 17, 2010, a Lake County sheriff’s deputy went to Respondent’s law office in Grayslake, Illinois, to serve the order and rule to show cause. At that time, the deputy sheriff told Respondent that he had a rule to show cause order to serve on Michael Caithamer. Respondent falsely identified himself as "Mark Penner" and told the deputy sheriff that Michel Caithamer was not in the office. After the sheriff’s deputy told Respondent that a vehicle registered to Michael Caithamer was parked in front of the office, Respondent stated that Michael Caithamer was on vacation and would be back some time the next week. Respondent stated that he leased office space from Michael Caithamer and that he would give him a copy of the order, but the sheriff’s deputy told him that rule to show cause had to be personally served.

On September 17, 2010, the sheriff’s deputy left Respondent’s office and used the Illinois Secretary of State image retrieval system to obtain a driver’s license photo of Michael Caithamer. After the sheriff’s deputy learned that the person who identified himself as Mark Prenner was Michael Caithamer, he returned to the office and he placed Respondent under arrest for obstructing service of process. At that time, Respondent stated that he was sorry and promised to appear in court.

On or before October 4, 2010, as a result of the acts described...above, the State’s Attorney of Lake County, Illinois, charged Respondent with the offense of obstructing service of process, in that he knowingly obstructed the authorized service, being a court order and rule to
show cause, on Respondent by a Lake County sheriff’s deputy by providing the sheriff’s deputy a false name, in violation of 720 ILCS 5/31-3...

On May 9, 2012, as a result of a negotiated plea, the court...found Respondent guilty of attempt obstructing service of process, sentenced him to one year of court supervision and ordered him to pay court costs and a monitored court supervision fee of $50.

(Mike Frisch)

Conditional Admission

The Louisiana Supreme Court has conditionally admitted an applicant for bar admission.

The court had directed that a character and fitness inquiry be conducted in light of an honor board proceeding that had taken place while the applicant was in law school. The investigation revealed that the applicant had defaulted on a debt owed to his bank.

The conditional admission is for two years. During the two year period, the newly-admitted attorney will be reqwuired to submit quarterly reports demonstating his financial responsibility. (Mike Frisch)

Bizzaro World

The New Jersey Supreme Court reversed a decision of the Appellate Division and reinstated a criminal conviction, concluding that the prosecutor's comments during summation did not require a mistrial.

The comments at issue involved the conduct of Officer Wayne Bizzaro. The defense had, in its closing argument, focused on the officer's conduct and suggested that the defendant was misidentified as the perpetrator.

In rebuttal, the prosecutor responded by discussing Officer Bizzaro's suspension without pay, that the officer was "being sued for a million dollars" and that the defendant "wants to be a millionare."

The court found that the remarks were improper and extraneous but grounded in the evidence. Further, timely limiting instructions by the trial court sufficiently cured any prejudice to the defendant. (Mike Frisch)

No Hermits Need Apply

The Washington State Court of Appeals has ordered a new trial in a matter in light of the (undisclosed on the record) relationship between the judge and opposing counsel.

The case involved the end of a nine year intimate relationship between the parties. The opposing counsel and judge had been in a two-attorney partnership and had other ties.

A dissent noted that the relationship was known to the attorney for the dissatisfied litigant and would impute that knowledge to the client.

This appeal came about because a disgruntled litigant, unhappy with ending up with three times as much property as his former partner, decided to attack the decision- maker. Unable to find the "dirt" he assumed he would find, the litigant then focused on the judge's former relationship with opposing counsel and ignored his own counsel's relationship with the judge. Unless a judge in a small community was a hermit or a newcomer to the region (neither of which is a good foundation for the position) before assuming the bench, the judge will necessarily have had relationships -- business or personal -- with most of the attorneys in the community. That is not necessarily a bad thing. Those relationships will also be known to most members of the bar, either through direct experience or from disclosure in other cases. It is not inappropriate for a trial judge to consider those facts -- whether raised by the litigant or not -- when ruling on a motion to recuse.

(Mike Frisch)