Legal Profession Blog

More from Paul Lippe on the Future of Law Schools

Posted by Jeff Lipshaw

Paul Lippe, who has been an agent provocateur (or thought leader, as they say) on the subject of legal education, has a follow up to his original Am Law Daily commentary to which our Bill Henderson linked a while back.  Follow the link and read it for yourself, but I'm not sure if the comments are available if you aren't a member of Paul's Legal OnRamp, so here's mine if you want to hit the "back" button on the browser after you read his column:

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Like Ray [Campbell, visiting professor at Penn State Law School, who also commented - UPDATE: see his original comments below the fold], I'm a former Big Law partner, and I was the VP & GC of a Fortune 850, NYSE company. I'm less likely than Ray (based on his comments) to try to argue that today's paradigm of legal scholarship has anything more than a passing relevance to the in-the-trenches practice of law. But that's not really the point. Practitioners have to understand that we started down a particular path over a hundred years ago when C.C. Langdell came up with the idea that law could be derived inductively from the reading of cases, akin to the scientific method in other disciplines. (There's a social science term called "path dependency" and it has to do with how hard it is to get off a particular path once you are on it; as an example, if you take a job at the beginning of your career with Weil,Gotshal, you've created different path dependencies for future choices than if you take a job with Sooem & Servem in Elko, Nevada.) Law became a subject for instruction in research universities, not merely for the training of lawyers, and with that developed a community of legal scholars, developing, indeed evolving, their own standards for what constituted advancement in knowledge. For a long time, that had to do mainly with legal doctrine, and academic energy devoted itself to the great treatises, and the great doctrinal advances like the UCC.

The problem with comparing law to medicine (as I did, and to which Paul links) is that while the practice of medicine is both art and science, the science is still hard science, and, moreover, the linkage between cutting edge theoretical research and its practical application is far more intuitive. For example, my son has his name on a paper that deals with work on the very subtle science of diabetic neuropathy in cells - how at a molecular and cellular level does the glucose cause the problems it does? Even if the research isn't directed at a cure, we can understand it in the web of scientific research that leads to useful advances and human flourishing.

That's far harder to do in law, and one only needs to scan the titles of the last 2,000 or so papers uploaded onto SSRN to confirm the hypothesis. Moreover, there's a lot of work produced and in spotty quality because of two structural features of academic law as it has moved down its particular path: (a) the sheer number of law professors compared to other disciplines, because the training of professionals subsidizes the theoretical pursuits; and (b) the plethora of student-edited (and non-peer-reviewed) journals. In short, law as academic discipline is still finding its place in the world. Given a hundred years of path dependence, however, "solving" the problem of legal education isn't going to occur without some acknowledgment of the academic paradigm. For example, we could certainly, as a logical possibility, move to a world in which most lawyers are trained in vocational institutes, and make theoretical "law and..." part of more traditional humanities and social science Ph.D. programs. But I suspect that most lawyers like their ties to the status of research universities that spawned most of them.

In fairness to Ray Campbell, my original version of this post did not treat fairly his original and thoughtful comment on Paul Lippe's column over at Legal OnRamp.   Here it is in full:

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Let me weigh in as someone who has been a big law partner, a start up company CEO, and now a law professor.

First, let me question your central assumption. Is being a lawyer just about serving paying clients? Not to diminish the importance of providing awesome service to clients, but I think a lawyer's duties are a bit more nuanced than that. You can be a great, client oriented lawyer and keep an eye on the bigger game, but you diminish the profession and short sell what law schools need to do if you take too narrow a view of a lawyer's role in society. I was privileged to work with some great lawyers, but a complete lawyer is going to bring to the game some of what Jerrold Solovy does - not just great client service, but a sense of what the law means in society.

I also think you might be surprised if you spent more time really looking at what law schools are like now. I know I was. Law schools are way better now than they were back when I was in law school. The scholarship is more interesting. (Really, it is. The various "Law and" movements have brought some fundamental insights, and add a lot more than novel length doctrinal treatments.) There are more opportunities for practical and clinical learning. Many law schools are looking hard at how they can best participate in the overall society, and have spawned institutes and centers that play vital roles.

In other words, some pretty smart people at law schools are already trying to address some of the issues you have identified, and have made real progress even if they haven't cracked the code entirely. The faculty I know are extremely concerned that students graduate well prepared to practice, even recognizing that their training will continue long after they graduate.

That's not to say law schools can't improve. Any institution has room for improvement, and that's especially true for institutions where a big chunk of the productive staff need respond only to their own views of what they should be doing. But, if we are going to talk about how to improve them, it would really help to start with an accurate assessment of both what law schools do today and what kind of lawyers they need to be creating.

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Board May Review Portions Of Credentialing File

The Massachusetts Supreme Judicial Court remanded a case involving possible misconduct by a physician. The issue related to access to the physician's credentialing file, which the Board of Registration in Medicine had sought but the trial court had held was protected by privilege.

The relevant facts:

Following a patient complaint, the disciplinary unit of the board initiated an investigation of Dr. Doe. In the course of the investigation, the board "developed information" that suggested that Dr. Doe "fraudulently procured renewal of his medical license by failing to report criminal charges on his license renewal applications," and which "requir[ed an] investigation of whether Dr. Doe has practiced medicine while the ability to practice medicine is impaired by alcohol or drugs." Pursuant to statutory authorization to compel document production "at any stage of an investigation," the board issued subpoenas to each of the hospitals on February 13, 2007, seeking documents related to Dr. Doe's credentialing, employment, and competence to practice medicine, as well as incident reports and complaints related to him.

Hallmark Health Corporation is the parent of Hallmark System, Inc., a licensed hospital facility whose "campuses" include the former Melrose-Wakefield and Lawrence Memorial Hospitals (collectively, Hallmark). The information sought from Hallmark by the board is located in Dr. Doe's credentialing files, which Hallmark maintains pursuant to the requirement that all hospitals have a "qualified patient care assessment program" (QPCAP) to address, among other things, the credentialing of medical staff members. Under Hallmark's medical staff credentialing policy, physicians seeking clinical privileges at Hallmark must apply for an initial appointment and must apply for reappointment at periodic intervals no greater than two years thereafter. An applicant for an initial appointment must provide, among other things, information about prior education, training, experience, and licensure, as well as potentially negative information, including whether the applicant has ever been a criminal defendant, lost a professional license, had clinical privileges withdrawn, or been involved in any professional misconduct proceedings. For reappointment, an applicant must provide, among other things, information about compliance with Hallmark's rules, continuing qualifications, pending malpractice challenges or challenges to licensure, and any limitation, reduction, or loss of clinical privileges. In addition to information supplied by the physician, any incident reports or complaints involving the particular physician become part of the physician's credentialing file. (citations omitted)

The court held:

In determining whether a medical peer review privilege applies in a particular circumstance, we look to "the way in which a document was created and the purpose for which it was used, not ... its content." Carr v. Howard, supra at 531. Therefore, the proper inquiry as to whether a document qualifies for protection under § 204 (a ) is whether it was created "by, for, or otherwise as a result of a 'medical peer review committee.' " Miller v. Milton Hosp. & Med. Ctr., Inc., 54 Mass.App.Ct. 495, 499 (2002). Under that formulation, while the work product of the various committees involved in credentialing at Hallmark--e.g., minutes from meetings, reports, or recommendations generated by or for the committees--are protected by § 204 (a ), documents used by such committees are not necessarily similarly protected. See Carr v. Howard, supra at 522 n. 7 (asserting privilege of § 204 without reliance on § 205 requires evidence that materials sought "were not merely 'presented to [a] committee in connection with its proceedings,' ... but were, instead, themselves, 'proceedings, reports and records' of a peer review committee under § 204 [a ]" [emphasis in original] ); Beth Israel, supra at 183 ("Section 204 does not protect information generated by other components of the QPCAP system or the 'raw materials' relied on by a [peer review committee] if obtained from other sources").

We remand the case to the Superior Court for an individualized consideration whether each of the documents listed on Hallmark's privilege log is protected by either § 204 (a ) or § 205 (b ), bearing in mind that the burden is on Hallmark to establish that each document is privileged.

The case is Board of Registration in Medicine v. Hallmark Health Corporation, decided today. (Mike Frisch)

Reciprocal Discipline For Nurses

The full Massachusetts Supreme Judicial Court rejected as premature a nurse's objections in a reciprocal discipline licensing proceeding. The opinion:

In a reciprocal discipline proceeding, the Board of Registration in Nursing (board) indefinitely suspended Penelope Lankheim's license to practice as a registered nurse in Massachusetts. That proceeding was based on Lankheim's voluntary relinquishment of her license after disciplinary proceedings in the State of Florida. Lankheim sought judicial review in the county court...[a] single justice of this court ruled that the board was authorized to impose reciprocal discipline based on Lankheim's voluntary relinquishment of her Florida license. However, he remanded for "reconsideration of the question of sanction without regard to the vigor with which Lankheim opposed the existence of discipline in Florida." Lankheim appealed to the full court.

The board has moved to dismiss the appeal on the ground that the single justice's decision was interlocutory. It is well established that, in an action seeking judicial review of an administrative agency's decision, no appeal lies from a decision of the trial court remanding the matter to the agency for further proceedings where "the administrative tribunal has choices to make about the result, in nuance and fundamental conclusion." "An order of remand ... is ... not final, particularly when the operative verb in the order has been 'reconsider.' " Lankheim argues that the order of remand is final and appealable because the board's discretion is limited in that it may no longer consider one of the aggravating factors on which it relied. However, Lankheim misstates the principle on which she relies: a judicial order remanding a matter to an administrative agency may be deemed an appealable judgment when "the administrative body [is] given no discretion, being ordered to decide the matter in controversy in a manner specified by the court." The single justice's order of remand did not direct the board to impose a particular sanction on Lankheim. The order merely removed one factor from the board's consideration and left the board with ample discretion to evaluate the remaining facts and circumstances in the case. Accordingly, Lankheim may not appeal from the single justice's order remanding the matter to the board for reconsideration of the appropriate sanction, as it was not a final judgment. (citations omitted)

The case is Lankheim v. Board of Registration in Nursing, decided June 19. (Mike Frisch)

Executions And Medical Discipline

The North Carolina Supreme Court has held that a statement from the Medical Board condemning the presence of a physican at an execution was properly enjoined. Physcians may be present without threat of disciplinary action:

This case presents four issues: First, whether a justiciable case or controversy exists between plaintiffs and the Medical Board; second, whether any such case or controversy is ripe for decision; third, whether the trial court impermissibly made a finding of fact without accepting evidence from defendant; and fourth, whether the Position Statement [of the Medical Board] is inconsistent with the manifest intent of the General Assembly in enacting N.C.G.S. § 15-190, which requires a physician to be present at all executions. We hold that plaintiffs have standing, that this case is ripe for decision, that the trial court did not make an improper finding of fact, and that the Position Statement is inconsistent with N.C.G.S. § 15-190. Accordingly, we affirm the order of the trial court.

The Medical Board had issued the Position Statement in which it had concluded that a physician's participation in an execution by lethal injection was a departure from the ethics of the medical profession. The court's majority concluded that the legislative mandate that a physician be present trumped the authority of the board to impose discipline:

 ...the General Assembly has specifically envisioned some sort of medical participation in the execution process, and defendant's Position Statement runs afoul of N.C.G.S. § 15-190 by completely prohibiting physician participation in executions. While defendant would retain disciplinary power over a licensed medical doctor who participates in an execution, see N.C.G.S. § 90-14, defendant may not discipline or threaten discipline against its licensees solely for participating in the execution alone. To allow defendant to discipline its licensees for mere participation would elevate the created Medical Board over the creator General Assembly.    Moreover, the language of the Protocol itself, as submitted by the Warden and approved by the Governor and Council of State does not overstep the statutory authority of those officials to determine and approve the exact means of execution. Exceptional care was taken when drafting the Protocol to ensure that it would not cause a physician to violate the Hippocratic Oath. Under the Protocol, the physician is not required to administer the lethal agents, nor is the physician required to do anything other than “monitor the essential body functions of the condemned inmate and [ ] notify the Warden immediately upon his or her determination that the inmate shows signs of undue pain or suffering.” The physician is given authority in the Protocol to ensure that no undue harm is inflicted on the condemned inmate: if the physician determines there is undue pain or suffering, “[t]he Warden will then stop the execution.” Certainly, the Protocol's requirement that a physician help prevent “undue pain or suffering” is consistent with the physician's oath to “do no harm.” The Warden is well within his authority to require such monitoring, and defendant is without power to prevent the Warden from doing so. Defendant's assignments of error are overruled.

A dissent:

 Because I believe that changes in statutory language and definitions are fundamentally tasks for the legislature, not the courts, I respectfully dissent. Here, the General Assembly has given defendant, the North Carolina Medical Board, broad authority to discipline physicians, and in my view, the nonbinding Position Statement at issue comports with that authority. The Statement is also entirely consistent with the requirements of N.C.G.S. §§ 15-190 and -192, in that it indicates that a physician will not be disciplined for “merely being 'present' during an execution,” as required by the plain language of those statutes. Nevertheless, the majority's holding here oversteps our role by fashioning a definition of “present” that would create a conflict between two governmental entities where there currently is none. I would instead find that no genuine case or controversy appropriate for the courts exists between these parties.

(Mike Frisch)

Absence Of Malice

The New York of Appeals held that a defamation action against the New York Post was properly dismissed on summary judgment. The Post had reprinted portions of a lengthy article from the Los Angeles Times about a license revocation action brought against a medical doctor for alleged overprescriptions given to Ozzy Osbourne when he had a reality television show. The headline and a line of text inaccurately suggested that the license had already been pulled. The article also correctly stated the status of the matter.The paper had printed a clarification when requested to do so.

The court majority held that the plaintiff could not show actual malice as opposed to negligence. A dissent states:

The undisputed facts are reletively simple: The New York Post took a factually-accurate Los Angeles Times article, which stated that the California Medical Board had "moved to revoke" plaintiff's license, and rewrote the article to falsely state, iin the headline and in the body of the article, that plaintiff's license had been "pulled" and "revoked". In my view, these facts raise, at the very least, a question of fact as to whether the Post acted with "actual malice".

(Mike Frisch)

No Examination Required

The Washington State Court of Appeals, Division II, reversed the one-year license suspensions of three exotic dancers, concluding that the dancers had been denied due process. The conduct that led to the suspensions was described by the court:

On January 20, 2006, three Pierce County detectives participated in an undercover sting
operation at Fox's Adult Nightclub.  Brunson, Johnson, and Tucker performed lap dances for the detectives, touched the detectives, and received money from the detectives.  Two of the dancers allowed the detectives to touch them.  After the detectives received their dances, several police officers entered Fox's and arrested Brunson, Johnson, and Tucker for violations of the county code.  

The court did hold that exotic dancers are not considered professionals who are entitled to the same due process protections for license suspension as, for instance, doctors:

Washington courts have required the higher standard of proof in disciplinary hearings for
the following professions:  physicians, engineers, and nursing assistants. Washington courts have not decided, however, to extend the same due process guarantees to erotic dance licenses, which do not require any schooling or qualifying examination.  The dancers do not cite any authority showing that erotic dance licenses are professional licenses. 

(Mike Frisch)

Summary Medical Discipline

A doctor who had entered an Alford plea to charges that he had sexually assaulted a patient was found by the medical license board to have committed a crime involving moral turpitude. He contended, and the circuit court held, that he was entitled to a hearing prior to the imposition of professional discipline. On appeal, the Maryland Court of Special Appeals reversed and concluded that summary discipline was appropriate based on the plea. Although the judgment of conviction was vacated as a result of the sentence, discipline was linked to the guilty plea. The court further concluded that the crime was one of moral turpitude. (Mike Frisch)

Bad Treatment

The Tennessee Court of Criminal Appeals held that a criminal defendant who had pleaded guilty to a number of charges including impersonating a medical doctor was not entitled to any relief from the sentence imposed by the trial court. The defendant had attended medical school in Grenada but has never been licensed to practice medicine in the United States. He was "assisting" his father, who was licensed and had a practice.

The defendant had treated a family that included a seriously ill teenage child. he had denied the mother's request for an ultrasound test and balked at referring the family to a real doctor. Eventually he acquiesed and the child was evaluated by a doctor, referred to Vanderbilt Medical Center, and diagnosed with bone cancer.

The defendant was sentenced to six years with all but nine months stayed and probation after serving the nine months in the county jail. He claimed that he should receive a fully probated sentence or diversion. The court here rejected both alternatives and approved the sentence imposed.

There appears to be a problem with the link. The case is State v.  Arellano aka "Dr. Chuck" and was decided on March 19. (Mike Frisch)

Study Abroad in Greece and the Greek Isles Via Tulane Law's Summer School, Including Class In Comparative Professions

Posted by Alan Childress

My annual reminder is, thankfully, still true in '09:  Tulane's summer school program to be held June 21-July 10, 2009, on the beautiful and car-free Isle of Spetses is still available for enrollment this month (the sooner the better).  Students from all law schools are welcome to study abroad with us (in English), not just Tulaners.  And there are openings in either of the Rhodes programs before and after Spetses, starting May 31.  Not too late to book a trip (search Kayak.com) and attend one or more of the three-week sessions in these playful and historic islands.   

I teach "Comparative Legal Profession" in Spetses and have posted some pics on my website.  Here is the Spetses Hotel where the Spetses program takes place -- nicest people in the world. Its restaurant (meals are included) looks out on palms and sea. There are two bars, overlooking the sea and next to the private beach area.

If you go to the first Rhodos session as well, be sure to take classes from such teaching legends as Thanassi Yiannopoulos and Martin Davies.  In Spetses, book my 8:00 a.m. class (there is always siesta time later) or -- if you must -- a later one taught by such all-stars as Mark Wessman, Anastasia Alexiou, and Kathy Lorio.  Here are the faculty and all the courses.  The view from your room's balcony?  Shown right (click to enlarge).

State Must Prove Doctor Trafficked in Drugs

The web page of the Ohio Supreme Court reports:

The Supreme Court of Ohio ruled today that, to convict a licensed health professional of trafficking in drugs under R.C. 2925.03(A), the state bears the burden of showing that a statutory exception for licensed health professionals does not apply by proving beyond a reasonable doubt that the defendant violated statutes or regulations that define the standard of care for dispensing controlled substances.

The Court’s 7-0 decision, authored by Justice Evelyn Lundberg Stratton, affirmed a ruling of the 2^nd District Court of Appeals.

In 2004, Dr. William Nucklos of Springfield was charged with 10 felony counts of drug trafficking under R.C. 2925.03 for allegedly prescribing a prescription pain-killer drug to patients in an illegal manner. As a defense against those charges, Nucklos cited an exception in the drug-trafficking statute, R.C. 2925.03(B)(1), which provides that the criminal offense of trafficking in drugs “does not apply” to a licensed health professional who dispenses controlled substances as long as that person’s actions fall within the minimum standard of care set forth in specified sections of state law.

During Nucklos’ trial, the judge instructed jurors that they should consider the licensed health professional exception to the drug trafficking statute as an “affirmative defense,” i.e., that in order to find Nucklos not guilty based on that exception, they must find that Nucklos proved by a preponderance of the evidence that he acted within the minimum standards required by law. Nucklos was found guilty on all counts and sentenced to a total of 20 years in prison.

Nucklos appealed his convictions. Among other claims, he argued that the trial court erred in instructing the jury that he bore the burden of proving that his actions were lawful. The 2^nd District Court of Appeals reversed Nucklos’ convictions and remanded the case for a new trial, holding that the licensed health professional exception set forth in R.C. 2925.03(B)(1) does not establish an affirmative defense that a defendant must prove, but rather establishes an additional element that the state must prove beyond a reasonable doubt when it pursues drug trafficking charges against a health professional. 

The state sought and was granted Supreme Court review of the 2^nd District’s ruling.

Writing for the Court in today’s decision, Justice Stratton noted that under R.C. 2901.05(D) an “affirmative defense” applies where a defendant’s actions would normally constitute commission of a criminal offense, but the applicable statute provides “an excuse or justification peculiarly within the knowledge of the accused” that, if proved by the defendant, exempts him from criminal liability.

“Had the General Assembly intended R.C. 2925.03(B)(1) to be an affirmative defense as defined in R.C. 2901.05(D)(1), it could have stated that a licensed health professional who complies with applicable regulations is excused from criminal liability for trafficking in drugs, or is justified in distributing a controlled substances. However, it did not use either of these terms,” wrote Justice Stratton. “Instead, R.C. 2925.03(B)(1) states that the offense of trafficking in drugs ‘does not apply’ to licensed health professionals who comply with applicable statutes or regulations.”

“Physicians legally and legitimately prescribe drugs to treat their patients on a daily basis. To accept the state’s argument that R.C. 2925.03(B)(1) is an affirmative defense would place an unreasonable burden upon all doctors who prescribe drugs to prove compliance with statutes or regulations to avoid criminal liability for merely practicing medicine. We do not believe that the General Assembly intended to criminalize legitimate medical treatment. Rather, we believe that the General Assembly consciously avoided such an absurd result by stating that trafficking in drugs ‘does not apply’ to licensed health professionals who comply with applicable statutory or regulatory requirements.... Accordingly, we hold that proving a health professional’s compliance with statutes or regulations does not fall within the definition of an affirmative defense in R.C. 2901.05(D)(2) because it is not an excuse or justification, and proof of compliance is not peculiarly within the knowledge of the accused.”

Citing the U.S. Supreme Court’s 1970 holding in In re Winship, Justice Stratton concluded: “The state cannot convict a licensed health professional of trafficking in drugs under R.C. 2925.03(A) unless the licensed health professional has failed to comply with applicable statutory or regulatory requirements.  R.C. 2925.03(B)(1). Proving noncompliance is therefore necessary to prove the offense of drug trafficking when a licensed health professional is charged. ... Accordingly, we hold that a licensed health professional’s failure to comply with statutory or regulatory requirements is an element of the offense of drug trafficking that the state must prove beyond a reasonable doubt.”

The court's decision is linked here. (Mike Frisch)

Michelson on Gender Inequality in China's Legal Profession

Posted by Alan Childress

New to SSRN is this paper by Ethan Michelson of Indiana-Bloomington's departments of sociology and East Asian studies:  "Gender Inequality in the Chinese Legal Profession."  Its abstract:

In China's urban context of labor retrenchment, women are faring poorly relative to their male counterparts. Is the same true in China's incipient, dynamic, and expanding legal profession? Findings from four sources of quantitative data suggest that gender inequality in China's private and highly market-driven legal profession is a microcosm of larger patterns of female disadvantage in China's evolving urban labor market. Although employment opportunities for women lawyers have greatly expanded quantitatively, their careers are qualitatively less successful than those of their male counterparts in terms of both income and partnership status. In the Chinese bar, women's significantly shorter career trajectories are perhaps the most important cause of their lower incomes and slimmer chances of becoming a law firm partner. Future research must identify the causes of this significant career longevity gap between men and women in the Chinese legal profession.

Our previous posts on Ethan's excellent work from inside China are here and here.

Non-Compete Not Enforced

The Iowa Court of Appeals declined to enforce a non-compete provision against a physician who had left his employment at the College of Medicine of the University of Iowa after concluding that he would not obtain tenure. From the summary on the court's web page:

Dr. Thomas Warren was employed as an assistant professor with the College of Medicine at the University of Iowa. He was primarily engaged in research, but saw patients one day each week at Cancer Care of Iowa City. He signed a non-compete agreement which prohibited him from practicing medicine within two years or fifty miles after he left the University. Dr. Warren came to realize he was not going to achieve tenure, and he resigned his position with the University. He became employed with Iowa Blood and Cancer Care, P.L.C. (IBCC), in Cedar Rapids. The University filed an action against Dr. Warren seeking an injunction to prohibit him from practicing medicine in violation of the non-compete agreement. The district court denied the University's request for an injunction, and it appeals. OPINION HOLDS: The University has not met its burden to show the restriction was reasonably necessary for the protection of the University's business. Dr. Warren had limited contact with patients while at the University. He arranged to transfer his patients from Cancer Care to other physicians there. We conclude Dr. Warren did not attempt to solicit or "pirate" the patients of Cancer Care. The University has not shown it suffered or will suffer a loss of business due to the practice of medicine in Cedar Rapids by Dr. Warren. We also find the restrictive covenant is prejudicial to the public interest. There was evidence that the federal government had designated Cedar Rapids as underserved by physicians. Based on these findings, we conclude we need not decide whether the restrictive covenant is unreasonably restrictive of the employee's rights. We affirm the decision of the district court.

(Mike Frisch)

Accountant License Suspension

The Massachusetts Supreme Judicial Court upheld a three year license suspension of an accountant convicted of a felony theft offense and false concealment of the conviction in an application for license renewal:

Based on the petitioner's larceny conviction and his false statement on his renewal application, the board, in May, 2006, issued to the petitioner an order to show cause why it should not suspend, revoke, or take other action against his license. Prosecuting counsel for the division of professional licensure moved for summary decision. See 801 Code Mass. Regs. § 1.01(7)(h) (1998). The board allowed the motion, concluding that the undisputed evidence showed the petitioner had been convicted of larceny over $250, and had lied about that conviction on his renewal application. See G.L. c. 112, §§ 61 and 87C 1/2 . The board rejected the petitioner's claim that he had mistakenly thought his larceny conviction had been "stayed" pending appeal--he presented no evidence to support his claim, and the board rejected his explanation of the different answers he gave on his applications to renew his accountant's license and to become a notary public as "linguistic splitting of hairs." See 801 Code Mass. Regs. § 1.01(7)(h) (summary decision appropriate where no "genuine issue of fact"). The board also concluded that, even if the petitioner had not intended to deceive the board, he knew or should have known that his statement in the renewal application was false.

A sanctions hearing took place, at which the petitioner and his defense counsel in the larceny case testified. Thereafter, the board issued a final decision in which it incorporated its earlier decision allowing the motion for summary decision; found no mitigating circumstances; found aggravating circumstances (a pattern of similar financial misconduct shown by the G.L. c. 93A matter and the petitioner's criminal charges above and beyond the larceny conviction; and the petitioner's demeanor during the hearing); and ordered his accountant's license suspended for three years.

The case is Kaplan v. Board of Public Accountancy, decided November 26. (Mike Frisch)

 

Welcome, With A Reprimand

The New Jersey Appellate Division has held that the New Jersey Board of Medical Examiners acted within its authority to reprimand a doctor in conjunction with the grant of a medical license in the state. The reprimand related to the applicant's interaction with a patient in California, and had not been determined to be misconduct in California.

The applicant is "nationally-recognized for his work in endocrinology and infertility." The incident at issue involved a colleague (a radiologist in Atlanta, Georgia) who contacted the applicant to discuss fertility procedures. The consultation led to friendship, the administration of fertility treatments by the applicant, an intimate relationship and pregnancy. The applicant then ended the affair and a lawsuit ensued, which was settled without admission of wrongdoing.

The court deferred to the board, which had balanced the harsh result of denying the application altogether with its conclusion that the conduct could not be ignored. (Mike Frisch)

Can A London Office Of A NYC Firm Develop Its Own Euro Client Base?

That is the goal--not only to service the firm's U.S. clients in a UK office but to expand an independent client base--and apparently it's starting to be the result, of Skadden Arps's London ofiice.  Here is a recent story in UK's TheLawyer.com (the online version of the City's legal paper The Lawyer), an article called The world is Skadden’s playground as European arm flexes US muscle.   

The upshot seems to be that established UK law firms claim that Skadden will never have the volume and depth of UK clients as do more traditional English solicitor firms, but maybe the firm's M&A wing does not really care as long as it's in the major deals:  "Skadden wants to be involved in the biggest global deals, which are inevitably cross-border and reliant on major banks. In this arena the firm is already king. The London team is being kept busy, for example, by the UK side of Anheuser-Busch’s defence against a hostile bid by Stella Artois owner InBev."  For Skadden, I guess, it is both a defence and a defense.

I found this, as suggested to his students, by Miami/UK's John Flood while I was tooling around on the "public" blog of his abbreviated Global Lawyering class (at the U. of Miami's summer abroad program that just ended). It has links to pieces on China, global crime, global cities, and our own Bill Henderson's posts on the bimodal salary spikes and the Cravath model.  I hope John does not mind that I have linked to the class website, as it is really interesting though brief.  John's more consistently maintained blog is at Random Academic Thoughts (RATs), but I hope he will keep his other running courses -- especially the longer ones -- just as public and share the links with us.  I suspect some of our U.S. law-prof readers, at least, have considered developing a full semester course in Global Lawyering (as John has too) and could use John's input (OK, steal John's intellect).  That will have to do until we can get John back in the U.S. for another stint at teaching U.S. students, unless his UK gig has some distance-learning facilities.  Anyway, thanks, John, for a great year at the University of Miami, not only for that school but for all of us able to follow the adventure along with you on your RATs site.

[Alan Childress]

Sanctions Improperly Imposed On School Principal

In an opinion issued last week, the Supreme Court of Vermont concluded that the State Board of Education had improperly withheld the license of an educator based on unproven allegations. The court described the accusations against a school principal as follows:

J.H. was the principal of St. Johnsbury School during the 2004-2005 school year.  In February 2005, she learned that an eighth grade student had received several anonymous death threats.  J.H. suspected that a seventh grade student, M.T., either knew about the death threats or was responsible for them.  J.H. questioned M.T. about the death threats on numerous occasions, including a two-hour interview in the presence of other adults and uniformed police officers.  During this latter interview, J.H. asked M.T. to link pinkies with her across the table, believing that this would help M.T. focus.  This “pinky promise” lasted for twenty minutes.  The day after the two-hour interview with police, J.H. learned of a “suicide note” that M.T. had written several months earlier, and she decided that M.T. needed a mental health evaluation.  J.H. informed M.T. of the upcoming mental health screening, and she then began questioning M.T. again about the death threats.  She was overheard yelling at M.T. and using profanity.  M.T. apparently confessed during this interview but she later retracted her confession.

Licensing sanctions were deemed improper as the principal had been denied due process. Prior to any suspension, the accused is entitled to notice of the charges and a hearing on the merits. The board had improperly withheld the license of the principal for 14 months and provided no basis for any additional sanctions. (Mike Frisch)

Reciprocal Discipline For Dentists

The full Massachusetts Supreme Judicial Court considered a series of  questions relating to the proposed reciprocal discipline of a dentist in light of actions taken in Rhode Island. The court remanded the matter to a single justice of the court, holding:

We hold that the board has the authority to impose reciprocal discipline in this case, and in the absence of other material issues pending before the single justice, we proceed to consider the discipline imposed by the board. The board revoked Anusavice's license to practice dentistry in Massachusetts, a level of discipline substantially greater than that imposed in Rhode Island. While in other circumstances this disparity might raise a concern, it does not do so here because the extent of the discipline was based not only the discipline imposed in Rhode Island, but also on Anusavice's history of discipline and regulatory noncompliance in Massachusetts, as well as his criminal misconduct.

The board has broad latitude in shaping appropriate sanctions in each case, and we defer to the board's expertise in making those determinations. Birudavol v. Board of Registration in Med., 448 Mass. 1031, 1033 (2007), quoting Sugarman v. Board of Registration in Med., 422 Mass. 338, 347 (1996). We review the sanction imposed for abuse of discretion. Kvitka v. Board of Registration in Med., 407 Mass. 140, 143 (1990). Here, we find no abuse of discretion. The decision was accompanied by a statement of reasons. Those reasons were supported by substantial evidence, and "the petitioner has not demonstrated any 'extraordinary ... circumstances' that would justify our interference in the board's exercise of its discretion in terms of the sanction." Kobrin v. Board of Registration in Med., 444 Mass. 837, 850 (2005), quoting Weinberg v. Board of Registration in Med., 443 Mass. 679, 687 (2005).

The case is Anusavice v. Board of Registration in Dentistry, decided July 11, 2008. (Mike Frisch)

Imputed Misconduct Justifies License Denial

An accountant who had been convicted of wire fraud arranged to be a 49% shareholder of a public accounting firm while there was a pending proceeding to revoke his license. The Missouri Supreme Court held that the Board of Accountancy properly exercised its discretion not to grant a license to the firm. It was not error to impute the prior individual misconduct to the new entity:

...the Commission further held that because the relevant conduct occurred prior to IFS's formation as a corporate entity, the Board could not consider it. This reasoning is flawed because a new firm applying for an initial permit has no history and, so, to require the Board to issue the permit, regardless of the background and character of the corporate owners, would frustrate the intent of section 326.310. Reading the statutes together, the authority of the Board to deny a permit under section 326.310 by imputing the past misconduct of the owners to the new firm is at least implicit, if not express. Kossmeyer is a convicted felon who has been found unfit to practice accountancy in the state of Missouri, and his conduct reflects no less poorly on the fitness of IFS as a public accountancy firm simply because it occurred before the entity's formation.

(Mike Frisch)

No Fiduciary Breach

The New York Court of Appeals today held that a lawsuit alleging, among other things, breach of fiduciary duty against an Orthodox rabbi by a women with whom he was alleged to have had a 3 1/2 year intimate affair failed to establish a viable cause of action. The complaint contended that the defendant had counseled the plaintiff on personal and other issues relating to her desire to marry and have children. the defendant allegedly claimed to be "as close to God as anyone could get" and "that he was, in fact 'the Messiah.' "

The court concluded that a fiduciary relationship requires de facto control and dominance. the plaintiff had "voluntarily consented to the 3 1/2 year intimate relationship with [defendant] because she subjectively believed that the 'therapy' he suggested would help her find a husband... no cause of action can be maintained for an extended voluntary sexual affair between consenting adults, even if [plaintiff] could prove that her acquiesence was obtained through lies, manipulation or other morally opprobrious conduct." (Mike Frisch)

No ADA Claim For Dishonesty Dismissal From Medical School

The Vermont Supreme Court affirmed the grant of summary judgment to the University of Vermont, rejecting a claim that the University discriminated against a medical student based on a disability. A faculty member had discovered that the fouth-year student had falsified an evaluation for a pediatric-surgery rotation. At a hearing, the student admitted the conduct and claimed it was an isolated incident. He was not dismissed but was subject to less serious sanctions.

The school later discovered two other falsified evaluations as well as a falsely altered diploma (to support a magna cum laude claim). At a second hearing, the student claimed the misconduct was caused by Tourette's Syndrome and a related obsessive-complusive behavior disorder. Expert testimony supported the contention. Nonetheless, he was dismissed from the University. He then sought treatment and petitioned for reinstatement, which was denied. He completed his studies elsewhere and sued the University for equitable relief, either the award of his degree or reinstatement.

The court here "recognize[d] that we are dealing with an academic institution about the ethical and academic standards applicable to its students." The university acted "for multiple purposes:to enforce academic standards, to protect patients being treated by students, to maintain trust between students and others, and to produce students who can go on to residencies and a profession practicing medecine." He never sought accomodation but only raised the disability issue to avoid sanction.

The court held:

   For multiple reasons, we conclude on this record that the undisputed facts show that plaintiff lacks a prima facie case, and the superior court properly dismissed the action. First, plaintiff cannot show that he met the essential qualifications for graduating from medical school, even with reasonable accommodations.  As the Dean emphasized, “[d]eception, dishonesty and perpetration of fraud are absolutely unacceptable, irrespective of cause.”  The College has the academic discretion to make honesty and personal accountability essential qualifications for its students.  See Falcone, 388 F.3d at 659.  As a matter of law, it would fundamentally alter the nature of the College if those actions by students were tolerated by the College and the student was allowed to enter the profession.  See Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 793 (1st Cir. 1992) (where university reached the “rationally justifiable conclusion that the available alternatives would result either in lowering academic standards or requiring substantial program alteration, the court could rule as a matter of law that the institution had met its duty”); Doe v. Attorney Discipline Bd., 78 F.3d 584, 1996 WL 78312, at *3 (6th Cir. 1996) (unpublished table decision) (in bar discipline case under Title II of the ADA, “ADA does not require that we hold Doe to a lesser standard of conduct than any other attorney, it merely precludes Doe from being denied an opportunity to practice law because of his disability.  Since Doe’s disability . . . has precluded him from satisfying the most basic ethical requirements of his profession, he is not qualified under the provisions of the ADA.”).

Further:

In essence, plaintiff seeks to wipe the slate clean and to obtain a second chance—in this case a third chance—to meet the academic and ethical requirements of the College.  He has requested as a remedy that he be given a medical degree or that he be reinstated to the fourth year medical class.  In essence, his record of misconduct would be eliminated, as if his disability was a full and complete defense to that misconduct.  The College would be required to ignore that the misconduct, however egregious, ever occurred.

      Decisions from other jurisdictions are clear, however, that the purpose of the ADA is not to give a second or third chance to one who commits misconduct.

(Mike Frisch)