Friday, October 7, 2016

Virginia Considering Streamlining Advertising Rules

Also posted on the Virginia State Bar web page

September 30, 2016

VSB Seeking Comments on Proposed Amendments to Lawyer Advertising Rules

The Virginia State Bar’s Standing Committee on Legal Ethics is seeking comments from its membership on proposed amendments to Rules 7.1 - 7.5 of the Rules of Professional Conduct that govern lawyer advertising.

The proposed changes come from a study by a committee of the Association of Professional Responsibility Lawyers (APRL) that determined that current rules do not account for the rise of Internet marketing and advertising.  Additionally, the study found that although current rules generate a predominance of technical complaints by competing attorneys, they may not be necessary to protect the public. Lastly, a number of case decisions in the last ten years have struck down rules governing lawyer advertising and raised First Amendment as well as antitrust concerns when rules are carried out by lawyers who also have a competitive market interest.

The Committee decided based on all factors that the best option is to streamline lawyer advertising rules and to focus on those that prevent false and misleading speech.

The full report on proposed amendments as well as the current rule may be accessed here.

You are invited to comment on the topic by November 4, 2016 by e-mailing Karen A. Gould, the Executive Director of the Virginia State Bar, at

(Mike Frisch)

October 7, 2016 in Current Affairs | Permalink | Comments (0)

Client Perjury Rules Clarified In Virginia

A recent notice on the web page of the Virginia State Bar

September 30, 2016

Supreme Court of Virginia Approves Rule Changes and Legal Ethics Opinion 1884

The Supreme Court of Virginia has approved amendments to Rules 1.6: Confidentiality of Information and 3.3: Candor Toward the Tribunal, as well as Legal Ethics Opinion 1884.

Effective December 1, 2016, the Supreme Court of Virginia has approved amendments to Rules 1.6: Confidentiality of Information and 3.3: Candor Toward the Tribunal.

The amendments clarify a lawyer’s obligations when a client discloses an intent to commit perjury well in advance of trial, and when the lawyer can withdraw from the representation before the client’s intended perjury occurs. The order may be found here.

Effective immediately, the Supreme Court of Virginia has approved Legal Ethics Opinion 1884: Conflicts arising from a lawyer-legislator’s employment with a consulting firm owned by a law firm.

The opinion addresses a situation where a lawyer who is a member of the Virginia General Assembly joins a consulting firm. The lawyer asks whether the lawyers and non-lawyers in the consulting firm would be barred from lobbying the General Assembly and whether that bar would extend to members of the law firm as well. In this opinion, the Committee concluded that both lawyers and non-lawyers in the consulting firm, as well as the lawyers in the law firm that own the consulting firm, would be barred from representing clients or otherwise lobbying before the General Assembly. The order may be found here.

(Mike Frisch)

October 7, 2016 in Bar Discipline & Process, Clients, Current Affairs, Ethics | Permalink | Comments (0)

Thursday, September 1, 2016

Citing Costanza v. Seinfeld

Lindsay Lohan and Karen Gravano lost their attempt to sue a video game when the New York Appellate Division for the First Judicial Department affirmed dismissal

In these appeals, each plaintiff alleges that defendants violated her right to privacy under New York Civil Rights Law § 51 by misappropriating her likeness for use in the video game "Grand Theft Auto V." This video game takes place in the fictional city "Los Santos," which itself is in a fictional American state of "San Andreas." Players control one of several main characters at various points in the game, engaging in approximately 80 main story missions as well as many optional random events. Plaintiffs allege that during certain optional random events, the player encounters characters that are depictions of plaintiffs.

Gravano alleges that in one of the optional random events in the video game, the character Andrea Bottino is introduced, and that her image, portrait, voice, and likeness are incorporated in this character. Specifically, Gravano argues that the character uses the same phrases she uses; that the character's father mirrors Gravano's own father; that the character's story about moving out west to safe houses mirrors Gravano's fear of being ripped out of her former life and being sent to Nebraska; that the character's story about dealing with the character's father cooperating with the state government is the same as Gravano dealing with the repercussions of her father's cooperation; and that the character's father not letting the character do a reality show is the same as Gravano's father publicly decrying her doing a reality show.

Lohan alleges that defendants used a look-alike model to evoke Lohan's persona and image. Further, Lohan argues that defendants purposefully used Lohan's bikini, shoulder-length blonde hair, jewelry, cell phone, and "signature peace sign' pose" in one image, and used Lohan's likeness in another image by appropriating facial features, body type, physical appearance, hair, hat, sunglasses, jean shorts, and loose white top. Finally, Lohan argues that defendants used her portraits and voice impersonation in a character that is introduced to the player in a "side mission."

Both Gravano's and Lohan's respective causes of action under Civil Rights Law § 51 "must fail because defendants did not use [plaintiffs'] name, portrait, or picture'" (see Costanza v Seinfeld , 279 AD2d 255, 255 [1st Dept 2001], citing Wojtowicz v Delacorte Press , 43 NY2d 858, 860 [1978]). Despite Gravano's contention that the video game depicts her, defendants never referred to Gravano by name or used her actual name in the video game, never used Gravano herself as an actor for the video game, and never used a photograph of her (see Costanza at 255; see generally Wojtowicz at 860). As to Lohan's claim that an avatar in the video game is she and that her image is used in various images, defendants also never referred to Lohan by name or used her actual name in the video game, never used Lohan herself as an actor for the video game, and never used a photograph of Lohan (see Costanza at 255).

Even if we accept plaintiffs' contentions that the video game depictions are close enough to be considered representations of the respective plaintiffs, plaintiffs' claims should be dismissed because this video game does not fall under the statutory definitions of "advertising" or "trade" (see Costanza at 255, citing Hampton v Guare, 195 AD2d 366, 366 [1st Dept 1993], lv denied 82 NY2d 659 [1993] [stating that "works of fiction and satire do not fall within the narrow scope of the statutory phrases advertising' and trade'"]; see generally Brown v Entertainment Merchants Assn. , 564 US 786, 790 [2011] ["(l)ike the protected books, plays, and movies that preceded them, video games communicate ideas . . ." and deserve First Amendment protection]). This video game's unique story, characters, dialogue, and environment, combined with the player's ability to choose how to proceed in the game, render it a work of fiction and satire.

Further, Lohan's claim that her image was used in advertising materials for the video game should also be dismissed. The images are not of Lohan herself, but merely the avatar in the game that Lohan claims is a depiction of her (see Costanza at 255 [the "use of the character in advertising was incidental or ancillary to the permitted use[,]" and therefore was not commercial]).

In view of the foregoing, it is unnecessary to address defendants' remaining grounds for dismissal.

(Mike Frisch)

September 1, 2016 in Current Affairs | Permalink | Comments (0)

Sunday, August 21, 2016

No Class

An opinion from the United States  Court of Appeals for the Third Circuit affirms the denial of class certification to students suing Widener Law

This is an interlocutory appeal of a denial of class certification in a suit alleging that Widener University School of Law defrauded a putative class of law students by publishing misleading statistics about its graduates’ employment, which caused the students to pay “inflated” tuition. The District Court found, among other things, that the plaintiffs failed to meet the requirement in Rule 23(b)(3) of the Federal Rules of Civil Procedure that common questions predominate over individual questions in order for a class to be certified. We conclude that, although the District Court labored under a few misconceptions about the plaintiffs’ theory of the case, the errors were harmless and the court ultimately reached the correct result. Even when properly characterized, the plaintiffs’ theory is insufficiently supported by class-wide evidence, and therefore the plaintiffs have not established that common questions will predominate. For that reason, we will affirm.

The allegations

they allege the following. Between 2005 and 2011, Widener reported that 90-97% of its students were employed after graduation. These numbers were widely and deliberately advertised in print and online publications, along with oral presentations, targeting prospective students. But in reality, only 50-70% of Widener graduates ended up in fulltime legal positions, which Widener knew. The school was including non-legal and part-time positions in its published statistics without reporting the breakdown. When Widener did provide a breakdown in its materials, it was a breakdown by employer type (private firm, business and industry, etc.) within the category of full-time legal employment, further misleading prospective students into believing that the 90- 97% number represented full-time legal employment. Beginning in 2011, Widener improved its reporting somewhat, by including a breakdown that distinguished between full-time legal positions and other jobs. But, according to the plaintiffs, Widener continued to gather information about its graduates in a manner that distorted the statistics by, for example, crediting unreliable secondhand accounts of graduates’ employment and avoiding responses from unemployed graduates.

The plaintiffs claim that publishing misleading employment statistics enabled Widener to charge its students “inflated” tuition — that is, higher tuition than what Widener would have received if full and accurate statistics were published instead. Joint Appendix (“J.A.”) 90 (Amended Compl. ¶ 1). And they seek damages equal to the amount of tuition that students allegedly overpaid. Widener moved to dismiss the case, but the motion was denied on March 20, 2013. The parties then engaged in discovery related to class certification.

As to class action 

The plaintiffs have...failed to propose a cognizable theory of damages that is sufficiently supported by class-wide evidence. And because the fact of damages (an “ascertainable loss” having a “causal relationship” with Widener’s conduct) is a crucial issue in the case, the inability to resolve it in class-wide fashion will cause individual questions to predominate over common ones, which precludes class certification.

August 21, 2016 in Current Affairs | Permalink | Comments (0)

Friday, August 5, 2016

A Serendipitous Result: Jailhouse Lawyering Not Unauthorized Practice In Vermont

The Vermont Supreme Court rejected the contention that a "jailhouse lawyer" violated unauthorized practice restrictions

This case calls upon us to consider the applicability of the prohibition against the unauthorized practice of law to the activities of a “jailhouse lawyer.” In February 2016, the State filed an information in this Court against Serendipity Morales, an inmate at the Marble Valley Regional Correctional Center, alleging she engaged in the unauthorized practice of law by helping fellow inmates in their cases, including performing legal research and drafting motions. In this probable cause review, we consider whether there is probable cause to believe that defendant has committed the alleged offenses. We conclude that there is not and accordingly dismiss the State’s information without prejudice.

The evidence that led to criminal charges

In support of these charges, the State included an affidavit from Sergeant Lloyd Dean, an officer for the Bennington County Sheriff’s Department. In that affidavit, Sergeant Dean alleges that Morales prepared court filings for five fellow inmates. These inmates reported to Dean that: (1) they had heard Morales was familiar with the legal process; (2) they asked Morales for assistance in reviewing and preparing various legal filings on their behalf; (3) Morales assisted each of them, including drafting handwritten motions which the respective inmates reviewed and signed; and (4) Morales did not request or accept any payment for these services. Sergeant Dean further alleged that each of the five inmates was represented by counsel in the matters in question, and that Morales is not a licensed attorney in the State of Vermont. The State does not allege that Morales ever signed pleadings on behalf of the other inmates, held herself out as a licensed attorney, or received any payment for her services.

The court

This Court has historically defined the unauthorized practice of law broadly, to include not merely holding oneself out as an attorney, but also providing services that require legal knowledge or skill such as drafting legal documents and giving legal advice—at least when one charges a fee for those services. More recent social and legal developments reflect a trend toward a somewhat more purpose-driven approach to defining the scope of the unauthorized practice of law.

After a survey of relevant caselaw

Although the above caselaw articulates an expansive definition of the practice of law, as the Attorney General has argued in this case, “This decades-old definition does not reflect the reality of practice in Vermont and does not provide sufficient guidance to prosecutors, practitioners, and the public.” Notwithstanding the above broad definitions of the unauthorized practice, this Court has allowed nonlawyers to appear in court in certain specified circumstances, as have some administrative agencies. In its prosecutorial role, the Attorney General has likewise taken a narrower view of the unauthorized practice. These legal developments have tempered the breadth of the unauthorized practice prohibition, and reflect a recognition that the unauthorized practice prohibition should be applied consistent with its underlying purposes of public protection.

Jailhouse lawyering

we are guided in this case by two factors particular to the inmate context. First, “jailhouse lawyers” who give legal assistance to fellow inmates but are not themselves licensed or formally law trained, are a well-established fixture in the justice system. Second, incarcerated inmates face particular challenges in accessing legal advice, and those challenges raise serious public policy, and in some circumstances, constitutional concerns...

Vermont’s courts have not actively sought to discourage inmates from helping one another with legal issues. In fact, in this appeal, Morales provided us with a transcript of a hearing in which the trial court urged a defendant to seek the help of other inmates who have successfully filed motions on their own behalf while awaiting a decision from the Defender General as to whether counsel will be appointed.

In this context, although there may be some limits on the ways in which an inmate can give legal help to another, we are wary of adopting a definition of unauthorized practice of law that would subject individuals to a finding of criminal contempt for engaging in conduct that has been tolerated and arguably even supported by the State.

The second factor particular to the context of this case is that incarcerated inmates are especially disadvantaged in trying to get legal information and advice. The United States Supreme Court has recognized that “[j]ails and penitentiaries include among their inmates a high percentage of persons who are totally or functionally illiterate, whose educational attainments are slight, and whose intelligence is limited.” Johnson v. Avery, 393 U.S. 483, 487 (1969). A significant number of inmates do not have the wherewithal to determine their rights and advocate for themselves due to limited education and literacy, and in some cases language barriers. These constraints give rise to considerable policy concerns, and perhaps constitutional ones.

Given these considerations, the court found that Morales had not engaged in unauthorized practice. (Mike Frisch)

August 5, 2016 in Bar Discipline & Process, Current Affairs | Permalink | Comments (0)

Tuesday, July 26, 2016

Right To Appointed Counsel Upheld In Termination Of Parental Rights Case

The New Jersey Supreme Court has held that an indigent parent has the right to appointed counsel in a matter involving termination of parental rights.

From the headnotes

On August 1, 2013, with the agency’s consent, J.E.V. and D.G.V. filed a complaint for adoption. The court entered an order scheduling a hearing and directing that L.A. receive notice. The order stated, among other things, that L.A. had “the right to appear, object, file written objections, [and] have counsel or court-appointed counsel, if unable to afford counsel.” The notice advised L.A. as follows: “If you are unable to obtain an attorney, you may communicate with the New Jersey Bar Association by calling (732) 249-5000. You may also contact the Lawyer Referral Services of the Essex County Bar Association at (973) 533-6775, if you cannot afford an attorney, you may contact the Essex County Legal Aid Society at (973) 622-0063 or the Essex County Surrogate’s Court at (973) 621- 4900. If you qualify, the Court will appoint counsel for you free of charge.” On October 31, 2013, at the case management conference, the trial court briefly raised the topic of representation with L.A., but did not tell her that a lawyer would be appointed to represent her if she could not afford one.

The court presided over a two-day trial in February and March 2014. J.E.V. and D.G.V. were ably represented by counsel; L.A. appeared pro se. L.A. was confused about several aspects of the trial process, the role of expert psychologists, and the legal standards that applied to the case. Petitioners called eight witnesses to testify, including an expert psychologist; L.A. declined to cross-examine most of them. L.A. testified but did not call an expert or any other witnesses. L.A. also declined to make a closing statement. At the close of the trial, the court concluded that the statutory requirements had been met and terminated L.A.’s parental rights.

L.A. appealed, and the Appellate Division appointed counsel to represent her. The panel reversed and remanded for a new trial, holding “that L.A. had a constitutional and statutory right to court-appointed counsel beginning before trial, when the private adoption agency first determined to proceed with an adoption over her objection.” 442 N.J. Super. 472, 474-75 (App. Div. 2015)...

HELD: Indigent parents who face termination of parental rights in contested proceedings under the Adoption Act, N.J.S.A. 9:3-37 to -56, are entitled to counsel under Article I, Paragraph 1 of the State Constitution...

The Court holds that an indigent parent who faces termination of parental rights in a contested private adoption proceeding has a right to appointed counsel. A poor parent who seeks to protect the fundamental right to raise a child, at a contested hearing under the Adoption Act, is entitled to counsel under the due process guarantee of the New Jersey Constitution. In so holding, the Court draws on certain common principles from B.R. and the Mathews test to analyze the due process issue. The termination of one’s parental rights plainly “implicates a fundamental liberty interest.” B.R., supra, 192 N.J. at 305. When parental rights are terminated, the tie between parent and child is severed completely and permanently. That is true whether the State files a petition to terminate or a prospective adoptive parent proceeds under the Adoption Act. Without the assistance of counsel to prepare for and participate in the hearing, the risk of an erroneous outcome is high. The parties are best served when both sides present arguments with the help of able attorneys; the outcome not only protects the parent’s rights and the child’s welfare, but also helps bring finality to an adoption proceeding. (pp. 24-27)

(Mike Frisch)

July 26, 2016 in Current Affairs | Permalink | Comments (0)

Wednesday, July 20, 2016

E-Discovery Company Co-CEO Sanctioned For Gross E-Discovery Violations And Other Misconduct

The Delaware Court of Chancery imposed significant sanctions for destruction of evidence and lying under oath in a partnership dispute

 Elizabeth Elting and Philip Shawe are the co-founders and co-CEOs of TransPerfect Global, Inc. (“TPG” or the “Company”). As chronicled in a post-trial decision issued last year, their management of the corporation devolved into a state of dysfunction. Emblematic of the deep divisions and fundamental distrust between them, virtually every aspect of this litigation has been turbulent, with each side filing motions for sanctions against the other. This decision resolves the sanctions motion Elting filed against Shawe based on an evidentiary hearing that was held earlier this year. 

As explained below, clear evidence adduced at the sanctions hearing establishes that Shawe acted in bad faith and vexatiously during the course of the litigation in three respects: (1) by intentionally seeking to destroy information on his laptop computer after the Court had entered an order requiring him to provide the laptop for forensic discovery; (2) by, at a minimum, recklessly failing to take reasonable measures to safeguard evidence on his phone, which he regularly used to exchange text messages with employees and which was another important source of discovery; and (3) by repeatedly lying under oath—in interrogatory responses, at deposition, at trial, and in a post-trial affidavit—to cover up aspects of his secret deletion of information from his laptop computer and extraction of information from the hard drive of Elting’s computer.

Shawe’s actions obstructed discovery, concealed the truth, and impeded the administration of justice. He needlessly complicated and protracted these proceedings to Elting’s prejudice, all while wasting scarce resources of the Court. Accordingly, Elting’s motion for sanctions is granted. Shawe will be required to pay a significant portion of her attorneys’ fees and expenses...

Some background

In October 2013, Elting hired Kramer Levin Naftalis & Frankel LLP to try to negotiate a resolution of the increasingly acrimonious disputes that had been brewing between Shawe and Elting for some time over their management of the Company. This enraged Shawe. Rather than hire his own counsel and engage in a mature dialogue, Shawe undertook a campaign to spy on Elting in pursuit of what had become a personal battle in which Shawe was determined to get his way over Elting at all costs, even if (to use Shawe’s words) it meant “shutting down” or “dismantling” the Company.

Shawe initially directed employees to intercept Elting’s regular mail, including her correspondence with Kramer Levin, and to monitor her phone calls. By the end of December 2013, Shawe’s surreptitious monitoring of Elting had expanded to include her private emails, including those with her counsel.

What follows is a tale of corporate espionage that is almost cinema-worthy and which, among other things, led to improper access to over 12,000 privileged emails.


The record also shows that Shawe has a demonstrated propensity to use subordinates firmly under his control to do dirty work for (and with) him in secret, off the grid, and usually late at night. He turned to Wudke late on New Year’s Eve (and other occasions) to extract files from Elting’s hard drive and told him not to document what he was doing even though he insists it was part of a legitimate “corporate” investigation. He hired Richards as his “personal paralegal” at the princely rate of $30,000 per month despite having a number of reputable law firms with vast resources at his disposal, and immediately tasked him with photographing Elting’s office and removing documents from it in the wee hours of the morning. When it came to his iPhone, he turned to another trusted subordinate, Campbell, who sits next to him in the same office in New York. Given Shawe’s modus operandi and Campbell’s farcical explanation of what happened to the phone when Elting was pressing for discovery of Shawe’s text messages, it is more likely that Shawe told or otherwise made it clear to Campbell to get rid of the phone. In any event, whether Shawe did so or not is of no moment because, at a bare minimum, he recklessly failed to take appropriate measures to preserve the phone so that genuine efforts to recover information from it could have been utilized.

One rather notable aspect of this mess

Shawe is the co-CEO of a company specializing in e-discovery, which employs personnel qualified to conduct forensic recovery of damaged devices, and which has relationships with other professionals who can assist if needed.  Shawe was represented by an able team of counsel, who engaged a forensic computer expert and who easily could have engaged an expert in data recovery if Shawe had been genuinely interested in trying to recover evidence on his phone. Faced with an embarrassment of riches in terms of professionals to whom he could turn to recover data from his phone, Shawe instead inexplicably chose to give the phone to a subordinate under his control who had no forensic training in retrieving data from a phone. Campbell’s sole experience is that his own phone once fell into a toilet and it worked after he let it dry. To top it off, Shawe gave the phone to Campbell without providing him even minimal instructions about why he wanted him to attempt to revive the phone, the need to preserve the evidence given the pending litigations, or even about ensuring an appropriate chain of custody.

Crain's New York Business provides details on the co- CEO relationship and its fallout, which they called The TransPerfect Storm

Shawe and Elting started the company in 1992 in their New York University dorm room. In 1996, the pair got engaged, but Elting called it off a year later and married someone else in 1999. (Shawe married in 2011.) The two split their business 50-50 and built one of the nation’s leading translation companies, with 92 offices in 86 countries housing 3,500 full-time employees, plus a network of 10,000 translators, editors and proofreaders working in about 170 languages.

All was sweetness and light in public between Shawe and Elting, but behind the scenes the former lovers came to loathe one another. They frequently cursed each other out in f-bomb-laden emails, and Elting once ended a meeting by dumping a pitcher of water onto Shawe. "Don't call me in ... and start f--king with me for no reason!" Shawe growled in one email to Elting, who fired back, "If sharing feedback on a potential acquisition is no reason, you’re a f--king idiot." People who know them say Elting and Shawe cursed each other out as their way of communicating.

(Mike Frisch)

July 20, 2016 in Current Affairs | Permalink | Comments (1)

Monday, July 11, 2016

Office, Not Chief, May Properly Be Appointed As Counsel

The Virgin Islands Supreme Court vacated an order appointing the Chief Territorial Public Defender as counsel in a complex criminal case. The trial court may appoint the Office to a case but may not designate the particular attorney assigned.

The defendant initially had retained counsel 

In 2008, Miller was charged with a litany of offenses, including violations of the Criminally Influenced and Corrupt Organizations Act, 14 V.I.C. § 600 et seq. (“CICO”). Miller’s trial on these crimes commenced in May 2011, in which he was represented by the law firm of Dudley Clark & Chan, LLP. Following five days of deliberations, the jury was unable to reach a unanimous verdict, which resulted in the trial court declaring a mistrial on June 24, 2011.

The firm was thereafter permitted to withdraw for nonpayment of fees.

A public defender was appointed but withdrew due to a claimed conflict of interest.

The court did not find an actual conflict of interest, but nevertheless relieved Attorney Leycock from the case because it concluded that there existed a potential for a conflict of interest which warranted Attorney Leycock’s withdrawal. The court simultaneously ordered, “Chief Public Defender Samuel Joseph, Esq., is appointed to personally represent Defendant Miller.” (JA at 154.) Lastly, the court directed Attorney Joseph to create an “ethical wall” within the Office of the Territorial Public Defender to ensure that Miller received conflict-free representation.

At the beginning of the following year, on January 27 and 28, 2014, Attorney Joseph filed two motions to be relieved as counsel, raising substantially the same two issues. First, Attorney Joseph challenged the legal efficacy of the “ethical wall” which had been ordered by the court. Attorney Joseph argued that members of the Public Defender Administration Board and employees of the Office of the Territorial Public Defender had relationships with related defendants which gave rise to conflicts of interest, and he posited that those conflicts were imputed to the entire office. Attorney Joseph also contended that, under 5 V.I.C. § 3503(a), the Superior Court lacked the requisite authority to select an individual public defender to represent an indigent defendant, adding that such an order was disruptive to the operation processes of the Office of the Territorial Public Defender.

 The court decided the appeal on its merits

In his brief, Attorney Joseph informs that Attorney Leycock is no longer employed by the Office of the Territorial Public Defender, and concedes that the conflict-of-interest issue pertaining to Attorney Leycock’s representation of Miller is now moot. (Appellant’s Br. at 15.) Therefore, we proceed to address the sole remaining issue submitted for this Court’s review: whether the Superior Court exceeded its authority by specifically assigning Attorney Joseph to represent Miller in the criminal proceedings attendant to this appeal.

The trial court exceeded its authority by appointed the Chief rather than the Office

Admittedly, the trial court was justified in being concerned about the history of counsel involved in the representation of Miller, and we acknowledge the Superior Court’s emphasis on providing conflict-free representation for Miller. Nevertheless, choosing a specific public defender was not the appropriate solution for addressing the court’s concerns, as the order superseded the role of the Chief Public Defender and violated the separation of powers doctrine. See State ex rel. Robinson, 48 S.W.3d at 69-70 (while the trial court had a legitimate interest in “break[ing] the chain of continuances made by withdrawing defenders,” and ensuring that defendant’s case proceeded to trial without further delays, “[t]he trial court acted in excess of its authority” when it appointed specific public defenders to represent the defendant). It is the Chief Public Defender—and not the court—who possesses statutory managerial authority, and is best positioned to assess the Office’s resources and experience of its lawyers, in achieving effective case management...

Upon a finding of a defendant’s indigence, the Superior Court may appoint the Office of the Territorial Public Defender as counsel. However, the court lacks the statutory authority to order that a specific public defender be assigned to represent a defendant. Accordingly, we vacate the court’s orders appointing Attorney Joseph to represent Miller in the underlying criminal proceedings and remand this case so that the Superior Court may appoint the Office of the Territorial Public Defender, leaving the determination as to the specific attorney to be assigned to Miller to be made within the discretion of the Chief Public Defender.

(Mike Frisch)

July 11, 2016 in Clients, Current Affairs, Hot Topics | Permalink | Comments (0)

Firm Liable For Unpaid Court Reporter Fee

The Connecticut Appellate Court upheld judgment against a law firm LLC but not an individual attorney in an action brought by a court reporting services for non-payment of its bill for three depositions in a federal court action.

The court expressed concern over the defendant attorney's reliance on purported New York law

Perhaps more troubling than the lack of legal analysis is the apparent mischaracterization of New York law. According to the defendants, in all judicial departments of the Appellate Division of the New York Supreme Court, with the exception of the First Department, the law is that the client is responsible for court reporting costs unless those costs are specifically acknowledged and assumed by the attorney. In the First Department, the defendants state that the responsibility for payment lies with the attorney unless disclaimed. The case relied on by the defendants, however, in support of their proposition that, in all but the First Department, an attorney’s client generally is responsible for paying for court reporting services, Sullivan v. Greene & Zinner, P.C., 283 App. Div. 2d 420, 723 N.Y.S.2d 869 (2001), is no longer good law. Its holding has been superseded by New York General Business Law § 399-cc (McKinney 2012), which is now the applicable law in all New York jurisdictions. Section 399-cc provides in relevant part: ‘‘Notwithstanding any other provision of law to the contrary, when an attorney of record orders or requests either orally or in writing that a stenographic record be made of any judicial proceeding, deposition, statement or interview of a party in a proceeding or of a witness related to such proceeding, it shall be the responsibility of such attorney to pay for the services and the costs of such record except where . . . the attorney expressly disclaims responsibility for payment of the stenographic service or record in writing at the time the attorney orders or requests that the record be made.’’ (Emphasis added.) As previously discussed, the court found that the defendants failed expressly to disclaim responsibility for payment at the time services were requested. Accordingly, even if the court had applied New York law as the defendants requested, it is unlikely to have altered the court’s decision in this case.

But only the firm is liable

Our review of the record and the findings of the trial court reveals no evidence indicating that [attorney] Lovejoy acted in his individual capacity rather than as a member of the law firm. Although each of the deposition notices was signed by Lovejoy, his signature appears after the name of the law firm, which is identified as the entity representing Ensign Yachts and, therefore, the law firm noticing the deposition. Accordingly, to the extent that the deposition notice represents an offer to enter into a contractual agreement, the evidence tended to show that offer was extended to the plaintiff by the law firm, not by Lovejoy individually. The court in its decision makes no factual findings on which it could have imposed individual liability. The court’s decision is completely silent as to whether the court believed that Lovejoy had acted in such a way as to suggest he was contracting in his individual capacity or that it was appropriate under the facts of this case to somehow ‘‘pierce the corporate veil.’’ The plaintiff states that Lovejoy is a sole practitioner and that he and the law firm are ‘‘one and the same.’’ That fact alone, however, simply cannot support the imposition of individual liability in contravention of § 34-133. Because there appears to be insufficient evidence to support the court’s decision to hold Lovejoy personally liable for acts taken on behalf of his law firm, that decision cannot stand.

(Mike Frisch)

July 11, 2016 in Billable Hours, Current Affairs | Permalink | Comments (0)

Thursday, June 23, 2016

Forced Apology In Juvenile Case Does Not Violate First Amendment

The Washington State Supreme Court today held that a convicted juvenile defendant who continued to maintain his innocence can be compelled to write a letter of apology to the victim.

A letter of apology demonstrates a recognition and acceptance of responsibility for harmful actions. Such a condition is reasonably necessary for K.H.-H. to recognize what he did was wrong and to acknowledge his behavior.

Additionally, an apology letter recognizes the victim's interest in receiving an apology from the perpetrator. An apology allows the victim to hear an acceptance of responsibility from the very person who inflicted the harm. This is particularly important where both the victim and perpetrator are juveniles, and demonstrates to both the significance of giving and receiving an apology for wrongful acts. This further advances the rehabilitative goals of the statute.

The outward manifestation of accepting and apologizing for the consequences of one's actions is a rehabilitative step that attempts to improve K.H.-H.'s character and outlook. Such a condition is reasonably related to the purpose of K.H.-H. 's rehabilitation and the crime here.

One must face the consequences of a conviction, which often include the loss or lessening of constitutional rights. There is a whole range of constitutional rights that can be affected by a conviction, not the least of which is a loss of liberty. There may be a limitation on the degree to which First Amendment rights may be restricted for those convicted of crimes, but an apology letter condition does not approach that limit. We affirm.

There is a dissent from Justice McCloud

The juvenile court's forced apology condition fails under any First Amendment test other than the majority's highly deferential, rational-relationship test borrowed from language in Clark. Under the Supreme Court's test in Martinez, the government cannot restrict the content of a prison inmate's speech in this context unless the restriction "further[ s] an important or substantial governmental interest" and is narrowly tailored so that it infringes on "no greater [speech] than is necessary or essential to the protection of the particular governmental interest involved." 416 U.S. at 413. The compelled confession and apology in this case fails that narrow tailoring requirement. Under the test we articulated in Bahl, the condition must be '"reasonably necessary to accomplish the essential needs of the state and public order."' Bahl, 164 Wn.2d at 757 (internal quotations marks omitted) (quoting Riley, 121 Wn.2d at 37-38). The compelled confession and apology in this case fails that requirement also. In fact, under controlling Supreme Court precedent, compelled speeches and pledges are probably the worst ways to teach remorse or anything else: "A person gets from a symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's jest and scorn." Barnette, 319 U.S. at 632-33. I respectfully dissent.

June 23, 2016 in Current Affairs | Permalink | Comments (0)

Tuesday, June 21, 2016

Ohio Supremes Hold Chesley May Not Relitigate Kentucky Judgment

The Ohio Supreme Court weighs in on the seemingly endless saga of Stanley Chesley

The Boone County, Kentucky, Circuit Court has entered a multimillion dollar judgment against former attorney Stanley M. Chesley. Denied relief from the judgment by the Kentucky courts, Chesley has turned to the courts of Ohio to thwart collection of the judgment and relitigate the case. And Chesley has found a receptive audience in the respondent, Hamilton County Common Pleas Court Judge Robert Ruehlman. In Chesley v. Ford, Hamilton C.P. No. A1500067, Judge Ruehlman has repeatedly acted to shield Chesley and his assets from creditors, despite a patent lack of jurisdiction.

Relator, Angela M. Ford, seeks a writ of prohibition to preclude Judge Ruehlman from continuing to exercise jurisdiction over the Hamilton County case. Chesley and his former law firm, as intervenors, oppose this request on the merits and also based on a claim of mootness. We grant a peremptory writ of prohibition and order Judge Ruehlman to vacate his orders. We deny Ford’s request for a writ of mandamus.

The court was highly critical of the Ohio judge's pro-Chesley rulings

 Chesley’s complaint asked the court to impose conditions on Ford, as attorney for the judgment creditors, for domesticating the Kentucky judgment that far exceed the statutory requirements. The Ohio Enforcement of Foreign Judgments Act does not require judgment creditors to calculate and disclose their respective shares of the judgment, detail the amounts and dates on which they recovered money from other sources, or disclose the amount of money retained by their attorney. But Chesley requested all these disclosures and more as a precondition to allowing Ford and her clients to even file their judgment in Ohio. And whereas the act provides a 30-day grace period after the foreign judgment is filed, Chesley demanded a 90-day halt to collection efforts after all these reports were provided. There is no statutory authority for any of this relief.

Despite his patent lack of authority, Judge Ruehlman granted this relief and more. Whereas Chesley sought to impose preconditions on the filing of the foreign judgment, Judge Ruehlman’s preliminary injunction order barred Ford and the creditors from filing the judgment in Ohio altogether, with no mention at all of any conditions that, if satisfied, would lift the prohibition.

We see no basis whatsoever for Judge Ruehlman’s assertion of jurisdiction to inject himself into the collection process. A common pleas court has jurisdiction over a foreign judgment “once that judgment is filed in accordance with R.C. 2329.022.” Doser v. Savage Mfg. & Sales, Inc., 54 Ohio App.3d 22, 560 N.E.2d 782 (8th Dist.1988), syllabus. But the Abbott creditors had not yet filed the judgment in Ohio; in fact, they were forbidden to do so by Judge Ruehlman. And now that this court has stayed Judge Ruelhman’s order, the claimants have domesticated their judgment and the case has been assigned to Judge Martin.

Justice Pfeifer dissented

I dissent because there were two more appropriate remedies available to relator, Angela M. Ford.

First, she could have filed an affidavit of disqualification against Judge Ruehlman with Chief Justice O’Connor. Second, having failed to do that, she should have been required to seek a remedy by way of appeal after a final, appealable order had been rendered.

The court's order is linked here. had this earlier report. They also had an editorial in March 2014 that took the judge to task in an unrelated matter. (Mike Frisch)

June 21, 2016 in Current Affairs | Permalink | Comments (1)

Saturday, June 18, 2016

New Chief Judge For D.C. Superior Court

The web page of the District of Columbia Courts announces

The District of Columbia Judicial Nomination Commission (JNC) has designated Judge Robert E. Morin to serve as Chief Judge of the Superior Court of the District of Columbia. Judge Morin will assume the office on October 1, 2016.  

In addition to Judge Morin, the Commission considered four other candidates, including Judge Judith Bartnoff, Judge Erik P. Christian, Judge Hiram Puig-Lugo, and Judge Lee F. Satterfield, who currently serves as the D.C. Superior Court chief judge.

Judge Morin's career has been diverse, serving both in private practice as well as in numerous public interest organizations, including D.C. Law Students in Court Program, the Southern Center for Human Rights, and the Office of the Public Defender for the State of Maryland. In 1996 he was nominated by President Clinton and appointed to the D.C. Superior Court.   

During his 20 years on the court, Judge Morin has served in the criminal division, civil division, and family court, and was the presiding and deputy presiding judge of the criminal division. He was responsible for the reform and management of the Criminal Justice Act Panel of attorneys, which helped significantly improve the quality of legal representation of indigent persons. In addition Judge Morin served on and led numerous court committees.

In making the designation, the JNC reviewed the results of background investigations, interviews, public comments, and each candidate’s statement of interest, experience, qualifications, and judicial temperament. It also considered interest and experience in court administration, ethics, commitment to diversity, leadership skills, ability to advocate for and promote confidence in the court system, intellectual leadership, and their visions for the court, including plans for addressing the challenges facing the court in the next four years.  

The JNC received an unprecedented 700-plus letters, evaluations, and calls from a diverse group of members from the bench, bar, and public on the fitness of the candidates.

Read the JNC's full statement on the designation of Judge Morin. 

There are a number of significant changes in personnel about to take place in the District of Columbia Bar (more to follow on this subject). 

In my view, Judge Morin will perform his duties as Chief Judge in a manner that will reflect great credit on the city judiciary. A great choice. (Mike Frisch)

June 18, 2016 in Current Affairs | Permalink | Comments (0)

Thursday, May 26, 2016

FOIA Feud Continues Over Attorney Emails

"With some dismay." the District of Columbia Court of Appeals has remanded and directed mediation of a FOIA claim by the Fraternal Order of Police ("FOP") against the District that had been dismissed as fulfilled by the trial judge.

On September 24, 2010, FOP submitted a FOIA request to both the Metropolitan Police Department ("MPD") and the Office of the Chief Technology Officer ("OCTO"). FOP requested three categories of documents in the possession, custody and/or control‖ of either entity: (1) all email sent to or from Mark Tuohey, including, but not limited to, all email sent to or from his email addresses at two law firms, Brown Rudnick LLP and Vinson & Elkins LLP, and one email address at the Washington D.C. Police Foundation; (2) all email sent to or from Eric Holder, including, but not limited to, all email sent to or from his email address at the law firm Covington & Burling LLP; (3) all email referencing or mentioning the Washington D.C. Police Foundation. FOP stated that it sought documents from these categories generated over a four-year period, from November 1, 2006 to present.

The court

And even though MPD ultimately produced two sets of responsive documents, it did so in a manner apparently designed to ensure defects in production. MPD claimed that its initial production comprised 1,400 pages of documents, but it presented no records to substantiate this claim, even when FOP asserted that MPD had turned over only a few hundred pages. And MPD‘s second production inexplicably took paper form, even though all responsive documents were electronic and could have been produced in that form (as they ultimately were). MPD then divided these hard copies—some 16,000 pages of documents into 25 to 35 envelopes,which it mailed to FOP without advance notice, tracking, delivery confirmation, or proof of mailing. Actions like these suggest that the District, like FOP, is more interested in gamesmanship than in FOIA compliance.

While the text of the D.C. FOIA statute does not require the District and frequent FOIA requesters like FOP to consult in good faith, the course of this litigation illustrates the imperative to do so. We cannot order FOP and the District to end their FOIA feuds, but we can require them to engage in mediation so that they might determine whether settlement is possible, or at least narrow the areas of dispute, before resuming litigation. See D.C. Code § 17-306 (2013 Repl.) (authorizing this court, in the disposition of an appeal, to direct the entry of such appropriate order, judgment, or decision, or require such further proceedings to be had, as is just in the circumstances).

The court rejected the District's interpretation of its FOIA obligations

we reject the District‘s argument that FOP could not challenge in court the adequacy of the District‘s search and production because FOP‘s FOIA request was "void for volume." Instead we conclude that FOP submitted a request that reasonably described the documents it sought, triggering MPD‘s and OCTO‘s obligations under D.C. FOIA to identify and produce responsive material.

And held insufficient the effort to comply

Turning to OCTO, we know even less—nothing, actually—about its steps to fulfill FOP‘s FOIA request, and thus we cannot evaluate the reasonableness of its efforts in this case... Given the paucity of information provided by the District about its searches, we conclude that the District has failed to carry its burden to win summary judgment with respect to the adequacy of its search.

Associate Judge Easterly authored the opinion, joined by Associate Judge Fisher and Senior Judge Nebeker. (Mike Frisch)

May 26, 2016 in Current Affairs | Permalink | Comments (0)

Friday, May 20, 2016

Freddie Gray Opinion Released

The Maryland Court of Appeals has issued its opinion in the Freddie Gray matter

On April 12, 2015, Freddie Gray suffered an injury while in police custody; one week later, he died from those injuries. The State charged six Baltimore City police officers with crimes in connection with the events leading up to Mr. Gray’s death—Officer William Porter, Officer Caesar Goodson, Sergeant Alicia White, Lieutenant Brian Rice, Officer Edward Nero, and Officer Garrett Miller. The first of those officers to face trial was Officer Porter. His trial began on November 30, 2015, and, after the jurors could not reach a verdict, it ended in a mistrial on December 16, 2015. At the heart of this appeal is whether Officer Porter, who the State has indicated it will retry, can now be compelled by the State, before his retrial, to provide immunized testimony against the remaining officers. In the cases of Officer Goodson and Sergeant White, the trial court granted the State’s motion to compel Officer Porter’s testimony. In the cases of Lieutenant Rice, Officer Nero, and Officer Miller, the trial court denied that same motion.

On March 8, 2016, we issued two Per Curiam Orders affirming the judgments of the Circuit Court in Officer Goodson’s and Sergeant White’s cases; reversing the judgments of the Circuit Court in the cases of Lieutenant Rice, Officer Nero, and Officer Miller; and lifting the stays in each case to allow the trials to move forward. We now explain our reasons for those Orders. We hold that the State’s compelling Officer Porter to testify in the trials of his fellow officers, under the grant of use and derivative use immunity, does not violate Officer Porter’s privilege against compelled self-incrimination under the Fifth Amendment to the United States Constitution and Article 22 of the Maryland Declaration of Rights. We further hold that the trial court lacks the discretion to deny a properly pled motion to compel immunized testimony and that the denial of such a motion constitutes a final judgment from which the State can appeal immediately. ..

To summarize, we hold that Officer Porter is the proper party to the State’s appeal because he, not the defendants in the underlying trials, is the party interested in the subject matter of the State’s motion to compel the witness’s immunized testimony. Accordingly, we hold that, because a motion to compel immunized testimony concerns only the State and the witness whose testimony is sought, the denial of the State’s motion constitutes a final appealable order. We further hold that a trial court is required to grant a motion to compel immunized testimony that complies with the statutory pleading requirements; consequently, the court lacks the discretion to question the State’s Attorney’s public interest determination. Finally, we hold that compelling Officer Porter’s testimony in exchange for use and derivative use immunity is coextensive with the scope of his Fifth Amendment privilege against compelled self-incrimination, as well as that privilege also guaranteed by Article 22 of the Maryland Declaration of Rights. For these reasons, we entered Per Curiam Orders on March 8, 2016, affirming the judgments of the Circuit Court in the cases of Officer Goodson and Sergeant White and reversing the judgments of the Circuit Court in those of Lieutenant Rice, Officer Nero, and Officer Miller.

The opinion is authored by Judge Judge Barbera. (Mike Frisch)

May 20, 2016 in Current Affairs | Permalink | Comments (0)

Wednesday, March 30, 2016

Basket Case Survives

A majority of the Wisconsin Supreme Court has held that the operator of a hot air balloon ride did not enjoy recreational immunity in a claim by a plaintiff injured in line waiting for a ride.

We conclude that Sundog is not entitled to recreational immunity pursuant to Wis. Stat. § 895.52 because it is not an owner under the statute. Sundog was not an "occupier" of the land and the hot air balloon was not "property" because it was not a "structure." Finally, we determine that Sundog's waiver of liability form violates public policy and is unenforceable as a matter of law. Accordingly, we reverse the court of appeals and remand to the circuit court for further proceedings.

The story

Patti J. Roberts was injured at a charity event sponsored by Green Valley Enterprises ("Green Valley"). Beaver Dam Conservationists, LLC ("the Conservationists") owned the shooting range where the charity event was held.

Sundog Ballooning, LLC was the owner and operator of a hot air balloon providing tethered rides at the event. Kerry and Jodi Hanson, the owners of Sundog, donated hot air balloon rides to promote Green Valley's charity event.

On the day of the event, Sundog set up a display, a sign-up table and a waiting area for the ride. The hot air balloon was tethered to two trees and a pick-up truck. During rides, the balloon operator raised the balloon to the length of the ropes and then lowered it back to the ground.

Patti Roberts and her family watched the balloon rides and then entered the line to take a ride. While in line, Sundog gave Roberts a waiver of liability form that she was required to sign prior to riding in the hot air balloon. Roberts signed the waiver form, but never returned it to Sundog. The signed waiver form was found on the event grounds after Roberts sustained her injuries...

 After signing the form, Roberts waited in line for 20 to 30 minutes. During this time, strong winds caused one of the balloon's tether lines to snap. As a result, the untethered balloon moved toward the spectators in line. Roberts was injured when she was struck by the balloon's basket and knocked to the ground.

Justice Ann Walsh Bradley wrote the opinion. It being Wisconsin, there are a concurring/dissenting and dissenting opinions. (Mike Frisch)

March 30, 2016 in Current Affairs | Permalink | Comments (0)

Monday, March 28, 2016

New Status For Ohio Lawyers

Stephanie Beougher has a story on the Ohio Supreme Court web page

Ohio will soon have a new attorney registration status. The Ohio Supreme Court announced today new rules that will allow non-active attorneys to engage in limited legal practice to provide pro bono service.

The changes to Rule VI of the Rules for the Government of the Bar of Ohio will take effect on Sept. 15, and come from recommendations made by the Supreme Court Task Force on Access to Justice, which was charged with identifying gaps in and obstacles to accessing the civil justice system in Ohio.

After taking public comments into consideration, the Supreme Court revised the original proposal, including:

  • Eliminating the requirement that an attorney be 65 years or older in order to qualify for emeritus status and instead only require he or she have practiced for a minimum of 15 years
  • Adding a biennial registration requirement and a $75 registration fee
  • Requiring an emeritus pro bono attorney, upon expiration or revocation of the attorney’s status, to file for either active or inactive attorney status.

The emeritus pro bono status will be available to an attorney admitted to practice law in Ohio and associated with a law school clinic, legal aid, approved legal services organization, public defender’s office, or other legal services organization. The attorney will be required to have supervision from an active-status attorney to appear before a court, administrative board, or agency. Routine legal services won’t require supervision. The emeritus attorney won’t be allowed to receive compensation beyond reimbursement for expenses from the pro bono organization.

(Mike Frisch)

March 28, 2016 in Current Affairs | Permalink | Comments (0)

Tuesday, March 15, 2016

Don't Go By Metro But Please Join Us

In a shameless plug for an event that helps fund the Washington Legal Clinic for the Homeless, please feel free to enjoy basketball between Members of Congress and Georgetown Law faculty tomorrow evening.  

Game information from Georgetown Law's web page:

29th Annual Home Court Charity Basketball Game

February 25, 2016 —


Hill’s Angels vs. Hoya Lawyas: 29th Annual Home Court Charity Basketball Game, with members of Congress facing off against Georgetown Law faculty and staff. 


The 2016 Congressional team, the Hill’s Angels, will be led by Sen. Robert P. Casey (D-Pa.), Rep. Tim Huelskamp (R-Kan.) and Rep. Ben Ray Luján (D-NM). The Hoya Lawyas will be led by Georgetown Law Dean William Treanor, Dean of Students Mitch Bailin and Adjunct Professor and Ethics Counsel Michael Frisch. 


Wednesday, March 16, 2016

Doors open at 7 p.m., Tip-off at 8:00 p.m.


Gonzaga College High School

19 I Street, NW

Washington, D.C. 20001


Started by a group of Georgetown Law students in 1988, Home Court has grown into the most significant fundraiser for The Washington Legal Clinic for the Homeless. In 28 years, the event has raised more than $7 million. For more information, please visit or contact

Tickets are $15, or $20 with a t-shirt. They will be sold at the door or can be reserved in advance here.

The student leaders - Amanda June Gargus, Genevieve Fugare and Stephanie Ritter - have done a great job managing the event. Thanks also to Andy Kaplan for setting up and helping run the practices. (Mike Frisch)

March 15, 2016 in Current Affairs | Permalink | Comments (0)

Friday, March 11, 2016

See You Next Friday

I encourage any interested ethicists, practitioners and other warm bodies to attend next Friday's Georgetown Journal of Legal Ethics symposium. 

As set forth in this invite, the event promises to be address fundamental issues facing the legal profession.


The legal profession faces a steady stream of criticisms and suggestions for change. Two of the most significant calls for change are the specialization of the legal ethics codes and the commercialization of the legal profession. The Georgetown Journal of Legal Ethics cordially invites you to attend its Volume XXIX Symposium, "Remaining Ethical Lawyers in a Changing Profession." The symposium will consist of three panels. The morning panelists will focus on whether specialized ethics codes are necessary, the afternoon panelists will delve into the ethics of the commercialization of the legal profession, and the lunch panelists will bridge these two topics by proposing that the profession focus on being not only ethical but also relational.


Friday, March 18, 2016


Gewirz Student Center

12th Floor

120 F. St. NW

Washington, DC 20001

The journal staff has done excellent work in putting this together. As co-advisor with my colleague Mitt Regan, I am grateful for their efforts. 

Mitt has a new textbook coming out with John Villa that will be of great interest to legal ethics professors focusing on entity clients.

This unique professional responsibility textbook is focused upon the practical and ethical challenges of representing modern business organizations. All topics are organized around problems that require the exercise of sophisticated professional judgment. While the text covers the ethical standards addressed in typical professional responsibility courses, it also gives particular attention to the increasingly important interaction of ethical rules and other sources of law that define the lawyer’s duties in representing business organizations in an increasingly complex world. In addition, the book serves as the first major casebook that can be used for a course on in-house legal practice, which one of the authors has taught for fifteen years. Chapters that can be used in such a course include those that cover communicating outside the company, dealing with employees and auditors, shareholder derivative demands, whistleblowers, multinational regulation, employment rights of inside counsel, overseeing the defense of criminal investigations, selection of outside counsel, and other topics. A detailed Teacher's Manual provides guidance on how to organize and teach the material in a two- or three-credit course, as well as instruction on how to use a hands-on exercise organized as a moot board meeting as the basis for the final exam. The book is co-authored by a nationally recognized litigator who is experienced in legal ethics and a leading scholar in the field.

(Mike Frisch)

March 11, 2016 in Conferences & Symposia, Current Affairs | Permalink | Comments (0)

Monday, March 7, 2016

More Whistling In The Wind

The District of Columbia Bar has dedicated much of the February 2016 issue of its Washington Lawyer magazine to congratulating itself for its wonderful decision to build a building and charge it off to the membership.

Without a hint or recognition of the irony, the Bar leadership has also posted a short Youtube video on the building move with the title Giving Members What They Want.

If they actually cared about what dues-paying members think and want, they would have put this hugely consequential building issue to a vote of the membership. 

My friend Paul Pearlstein commented recently on a post in which I questioned this grossly inappropriate and dangerous use of mandatory bar dues. 

I fear that the next generation of District of Columbia lawyers will pay a steep price for the Bar's ill-founded confidence in itself as an investor in downtown Washington real estate.

The core purpose of mandatory dues is to fund the operation of the disciplinary system. We justify self-regulation through the process of rigorous investigation of complaints alleging misconduct and, where appropriate, prosecution of attorneys who fail to meet minimum standards of competence and integrity.

The Bar's 2015-16 budget shows a cost of $8,883, 500 allocated to the D.C. disciplinary system.

One nice piece of transparency is the Bar's disciplinary decisions web page. There one can easily take a snapshot to evaluate the efficiency of the dues-funded system.

In just a few clicks, I was able to review every Board on Professional Responsibility report in original (non-reciprocal) matters from March 4, 2015 to March 4, 2016.

The results:

The BPR issued 15 reports in the past  year.

Seven of the 15 were simple approvals of consents to disbarment.

Two had involved referrals in criminal convictions.

Six involved  original prosecutions initiated through  a petition filed by the Office of Disciplinary Counsel.

It apparently costs more than a million dollars to generate a single disciplinary prosecution. 

The Office of Disciplinary Counsel employs 17 full-time attorneys. The Board on Professional Responsibility's Office of the Executive Attorney employs six.

Go to the web pages of the Illinois and North Carolina disciplinary systems to gauge the comparative productivity of other disciplinary offices.

As of today, North Carolina is prosecuting 28 active matters. Illinois files more charges in a month than D.C. does in a year.

Are D.C. lawyers just far more ethical than those in other jurisdictions?

Functioning adults know the answer to the question.  (Mike Frisch)

March 7, 2016 in Bar Discipline & Process, Current Affairs | Permalink | Comments (0)

Saturday, March 5, 2016

Sanction Not Sustained For Limited Scope Representation

The Kentucky Supreme Court recently held  that sanctions imposed against attorneys who provided services but did not sign pleadings as part of a limited scope representation could not stand.

Sarah Jackson and David Thomas, of Owensboro, individually retained Appellants Persels & Associates, LLC (“Persels”) to defend them in their debt collection cases that were pending before the Daviess Circuit Court.  Persels is a national law firm organized in Maryland and engaged primarily in unsecured debt collection cases such as credit card debt.  Here, Persels attempted to negotiate with the credit card companies on behalf of its clients.  To assist in negotiations, Persels retained Kentucky attorneys K. David Bradley of Salt Lick, Kentucky, and Robert Gillispie of Leesburg, Virginia, to provide limited representation.  Mr. Bradley was assigned to “assist” Sarah Jackson;  and Mr. Gillispie was assigned to “assist” David Thomas.

The terms of Jackson's and Thomas's limited-representation agreements with Persels were confined to drafting and consultation services.  The agreements specifically provided that neither Kentucky lawyer was required to sign pleadings, enter an appearance, or attend court proceedings.  Therefore, it appears that the defendants were nominally pro se.  They either signed the documents that were prepared for them, or were at least instructed to do so by counsel.  In 2011, however, the Daviess Circuit Court ordered Attorneys Bradley and Gillispie to appear and show cause as to why they should not be held in contempt for their failure to enter their appearances and sign documents filed with the court.  The trial court consolidated the two cases and permitted Persels to intervene as a third party respondent.

Sanctions under Kentucky's Rule 11 were imposed and affirmed by the Court of Appeals.

The rationale behind CR 11 is to regulate the litigation process so that pleadings are valid for everyone – indigent or not. Second, pro se clients, indigent or not, must follow the rules of civil procedure, too. Unfortunately, the solution for providing legal service for indigent clients is much broader and more complex than this case. Undoubtedly, a decision to authorize limited representation through unbundled legal services in Kentucky would likely necessitate a review of the rules of practice, and perhaps, amendments to the civil rules. Such a course of action is not impeded or prevented by the actions of the Daviess Circuit Court in enforcing CR 11.

In conclusion, the trial court was not clearly erroneous in its findings nor did it abuse its discretion in the imposition of its sanction. In sum, we concur with the legal reasoning of the trial court and hold that pleadings prepared with the assistance of an attorney in the Commonwealth must be signed by the attorney.

The court here disagreed and considered the policy implications of limited scope representation agreements.

Kentucky Supreme Court Rule (“SCR”) 3.130 (Rule 1.2) governs the scope of representation and allocation of authority between client and lawyer. It provides in part:  “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” SCR 3.130(1.2)(c).  Comment 6 further defines the nature and scope of limited representation agreements and provides in part:

A limited representation may be appropriate because the client has limited objectives for the representation.  In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client's objectives.  Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent...

There is a significant portion of the population comprised of individuals who are not indigent yet do not possess the means to afford full and rigorous representation of counsel.  See Cristina L. Underwood, Comment, Balancing Consumer Interests in a Digital Age:  A New Approach to Regulating the Unauthorized Practice of Law, 79 Wash. L.Rev. 437, 442 (2004) (“Many low- and moderate-income households simply cannot afford the cost of personal legal services.”). Indeed, “[s]ubstantial evidence indicates the existence of a latent marketplace for personal civil legal services to those of low and moderate incomes.”  Accordingly, many of our citizens cannot afford the full breadth of legal representation but are nevertheless in need of representation of some degree.

We encourage lawyers to take on cases that service the less fortunate.

The image of our profession is enhanced by these admirable efforts.  Therefore, it is clear that limited-representation agreements are necessary to some extent.  However, we acknowledge that these types of arrangements may be abused to the detriment of the litigants and the courts.

These policy concerns lead to this conclusion

In keeping with the letter and spirit of SCR 3.130 (Rule 1.2) and its accompanying commentary, we authorize agreements that limit the scope of legal assistance or that limit representation to discrete legal tasks, so long as they are reasonable under the circumstances and the client gives informed consent.  See Rochelle Klempner, Unbundled Legal Services in New York State Litigated Matters:  A Proposal to Test the Efficacy Through Law School Clinics, 30 N.Y.U. Rev. L. & Soc. Change 653, 654 (2006). This includes limitations on services provided in furtherance of traditional litigation as well as alternative dispute resolution methods.

Agreements that limit representation to distinct stages of litigation may also be reasonable under the circumstances.  The monumental increase in pro se and nominal pro se domestic filings provides a particularly apt example of the need for this unique type of limited-representation. For instance, family law practitioners may provide comprehensive representation during property division proceedings but not provide representation in any form during child custody proceedings, or vice versa.  However, these types of agreements must be carefully tailored to avoid abuse and confusion from the perspective of the client and the court.

To clarify, in addition to being reasonable under the circumstances, all agreements which limit representation must be in writing, require the informed consent of the client(s), and must comport with our rules, including the rules of professional conduct.

However, we do not adopt a strict rule requiring drafting attorneys to sign the documents they prepare pursuant to limited-representation agreements.  An attorney involved in the preparation of initial pleadings (complaint, answer, cross-claims and counter-claims), must indicate that the document has been prepared by or with the assistance of counsel by providing “Prepared By or With Assistance of Counsel” on the document concerned. See Bhojani, 65 SMU L.Rev. at 680 (“since the court is not being misled as to the fact of the drafting assistance, the attorney is not violating the duty of candor and not deceiving the court.”).  Of course, in cases where there is one or more attorneys of record, at least one attorney of record must sign documents presented to the court and provide their address in accordance with CR 11.  Pro se litigants must also satisfy the signature and address requirements of CR 11.

Furthermore, active assistance by counsel must be disclosed to the presiding tribunal and adversaries.  Active assistance includes drafting documents in furtherance of litigation that extend beyond initial pleadings. Notice of active assistance shall include the name, address, and telephone number of the attorney(s) working on the case, and the nature of the limited representation agreement at issue.  However, such disclosures do not constitute an appearance by counsel, nor do they require the drafting attorney to appear in court on behalf of the litigant receiving limited representation unless the court or the surrounding circumstances dictate otherwise.  For example, cases involving expedited or emergency relief may justify comprehensive representation, or at least a limited appearance of counsel, for the purpose of resolving the expedited matter.

In all cases, attorneys providing limited-representation are required to adequately investigate the facts to ensure that the pleadings or other documents drafted in furtherance of litigation are tendered in good faith.  See Rule 3.1.  Moreover, attorneys providing limited-representation of any kind may not deceptively engage in a more complete role.  See Rule 8.4.

Lastly, limited representation does not require proof of indigence.  Although the financial means of litigants pursuing limited-representation may be considered by courts as relevant to the overall reasonableness of the agreement, a litigant's financial status is not a dispositive factor.  On this issue, deference should be afforded in favor of the litigant seeking limited representation.


...whether the agreement is reasonable also goes to the question whether it is ethical And because it is an agreement entered into by an attorney, if it is unreasonable, for example as to the fees charged, then the attorney may have committed an ethical violation by negotiating an unreasonable contract with his client.  Certainly, if a trial court becomes aware of such unreasonable aspects of a limited-representation agreement, then the court has a duty to file a bar complaint against the offending attorney, as does opposing counsel who may become aware of the situation.  Indeed, the party to the agreement may do likewise.  But collateral contract disputes or ethical violations are not proper issues for a trial court to address with CR 11 sanctions merely because a pleading is not signed by the attorney who drafted the document.

To clarify, we do not limit the authority of courts to impose other appropriate remedies that are necessary to maintain order and the integrity of the legal profession.  For example, if the court determines that a limited representation agreement is unreasonable, the court may order counsel to cease providing legal assistance of any kind to the client.  If an attorney continues to provide legal assistance for a client in violation of the court's order, the court may exercise its contempt authority in order to enforce its order.

The court remanded for a hearing on the reasonableness of the limited scope representation of the clients.

This is a decision of potential significance.  (Mike Frisch)

March 5, 2016 in Clients, Current Affairs, Law & Business, Law & Society | Permalink | Comments (0)