Legal Profession Blog

Clerk In Hot Water

After sanctioning a circuit court clerk for failure to comply with civil rule requirements, the Mississippi Supreme Court discovered further lapses and ordered the clerk to show cause why additional sanctions should not imposed. The court then imposed a $5,000 sanction but afforded the court clerk the opportunity to mitigate the penalty by "report[ing] to [the court] on remedial measures in her two offices that would be expected to prevent recurrence of the same or similar errors."

The clerk filed a statement and, in an opinion issued today, the court found that she "has fallen far short of providing this Court any reason to believe a reduction in our most recent sanction...to be appropriate."

The clerk must also pay the sanction from personal funds and provide documentary proof that she has repaid the public account from which the sanction was paid. She also must file a "detailed, written narrative, under oath, meticulously describing what, if any, procedures and practices she has implemented" to assure future rule compliance.

An article from MS Litigation Review linked here provides details about the monetary sanction that had been imposed. (Mike Frisch)

The Writing On The Wall

The New Appellate Division for the Second Judicial Department affirmed an order dismissing claims by a legal writing professor at Hofstra:

Beginning in July 2000, the petitioner was employed as a legal writing teacher at the Hofstra University School of Law (hereinafter the law school). In the fall of 2008, he submitted an application for reappointment and for a five-year contract as a member of the legal writing faculty. The petitioner's application was subsequently denied on the ground that there was a significant decline in his teaching performance since the execution of his last contract.

The petitioner commenced this proceeding to review the denial of his application for reappointment and for a five-year contract. The petition alleged, among other things, that the decision not to offer him a five-year contract was arbitrary and capricious and was made in violation of the rules of the law school, which set forth the procedure to be followed when considering applications for reappointment. The Supreme Court denied the petition and dismissed the proceeding. We affirm.

"One of the most sensitive functions of the university administration is the appointment, promotion and retention of the faculty" (New York Inst. of Tech. v State Div. of Human Rights, 40 NY2d 316, 322). Courts will "only rarely assume academic oversight, except with the greatest caution and restraint, in such sensitive areas as faculty appointment, promotion, and tenure, especially in institutions of higher learning" (Matter of Pace Coll. v Commission on Human Rights of City of N.Y., 38 NY2d 28, 38).

Accordingly, "judicial review of a determination of an educational institution with respect to the appointment, promotion and retention of faculty is limited" (Matter of Perinpanayagam v University at Buffalo, 39 AD3d 1220, 1221). "In reviewing such a determination, a court, which must not substitute its judgment for that of the university, must determine whether the determination was made in violation of the university's rules, or is arbitrary and capricious" (Matter of Lipsky v New York Inst. of Tech., 69 AD3d 725, 725-726; see Gertler v Goodgold, 107 AD2d 481, 487, affd 66 NY2d 946; see also Matter of Gray v Canisius Coll. of Buffalo, 76 AD2d 30, 36-37).

Contrary to the petitioner's contention, the determination that there was a significant decline in his teaching performance since the execution of his last contract was not made without sound basis in reason or regard to the facts, and the petitioner failed to demonstrate that the determination to deny his application was arbitrary or capricious (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231). Moreover, even if the law school's Committee on Appointment, Reappointment, and Promotion of Clinical Skills, Legal Writing, and Academic Support Faculty (hereinafter the Committee) failed to conduct the exact number of classroom and student conference observations outlined in the rules promulgated by the law school, we conclude that the observations undertaken by the Committee constituted substantial compliance under the circumstances (see Gurstein v Bard Coll., 280 AD2d 264; Matter of Loebl v New York Univ., 255 AD2d 257, 258-259; see also Tedeschi v Wagner Coll., 49 NY2d 652, 660-661).

Furthermore, the petitioner's contention that the reappointment process failed to include a decision by "the Law School Faculty" does not require reversal. The record discloses a rational basis upon which the respondents could have concluded that the petitioner waived his right to this portion of the reappointment process (see Matter of Lipsky v New York Inst. of Tech., 69 AD3d at 725-726), especially given his failure to raise this issue in the context of the administrative appeal which was provided to him at his request (see Matter of Nicoletta v New York State Div. of Parole, 74 AD3d 1609, 1610).

(Mike Frisch)

Data on the "Employed at Graduation" U.S. News Rankings Input

By Bill Henderson & Andrew Morriss

Yesterday, Bob Morse of U.S. News published a blog post in which he signaled a change in the law school rankings methodology, specifically with regard to employment.  The prevailing view on the law school administrator list-serves (which nearly a dozen people have forwarded to us) is that U.S. News will be increasing the weighting of "employed at graduation," presumably because U.S. News Editor Brian Kelly sent a letter to law school deans--reprinted in Bob's blog post--discussing the importance of employed-at-graduation as a metric.

We have zero inside information, but we are willing to bet a substantial sum that any methodology change will be in a completely different direction.  Here is why.  Over the last decade, fewer and fewer schools have been supplying U.S. News with employed-at-graduation data.  Employment at graduation is not a statistic required or collected by the ABA; as such, its accuracy cannot be checked through cross-reference to the annual ABA-LSAC Official Guide. 

But much more significantly, when a school fails to provide this data, U.S. News has--up until now--imputed the figure based on employment at 9 months.  (Kudos to Ted Seto for unraveling this mystery.  See Understanding the U.S. News Law School Rankings.)  Crudely speaking, the magazine applied a roughly 30% discount rate on the employed at 9 months figure.   Earlier this year, Paul Caron suggested that if a school's employed-at-graduation rate is more than 30% lower than its employed at 9 month rate, it is "rankings malpractice" to supply U.S. News with the data.

As readers can see from the above chart (generated by Paul Caron in his rankings malpractice post), a large proportion of law schools have figured out the payoffs.  Over the last decade, the percentage of non-reporting schools has skyrocketed. With this information in mind, Bob Morse's blog post may seem less cryptic: [after the jump]

In an effort to make our law school employment data more reflective of the current state of legal employment, U.S. News has modified how we calculate the employment rates that are used in the new law school rankings.  ...

U.S. News agrees with the efforts of Law School Transparency to improve employment information from law schools and make the data more widely available.

If the goal is (a) to utilize data that better reflect reality, and (b) provide greater transparency and access to such data, it makes no sense to increase the weight of an input (employed-at-graduation) that is either withheld by law schools or is heavily gamed.  This latter point is made by U.S. News Editor Brian Kelly in his letter to the deans:

[E]mployment after graduation is relevant data that prospective students and other consumers should be entitled to.  Many graduate business schools are meticulous about collecting such data, even having it audited. The entire law school sector is perceived to be less than candid because it does not pursue a similar, disciplined approach to data collection and reporting.

At U.S. News, we work to make meaningful and fair comparisons, based on industry-accepted data. ...

To eliminate some of the gaming that seems to be taking place, we have changed the way we compute employment rates for the rankings due out March 15.  In addition, we will also be publishing more career data than we have in the past in an effort to help students more completely understand the current state of legal employment. We think more still needs to be done.

So Kelly is saying that employed at graduation data are important, and the magazine is tired of being gamed.  Therefore, we think two methodogical changes have a good chance of being implemented:

• U.S. News is likely to heavily penalized schools that withhold the employed at graduation data.  Going forward,  the imputation may be far more negative than -30% off of employed at 9 months.  A drop in rankings will stop in its tracks the non-response problem.

• Regarding perceptions of gaming, it is possible that U.S. News has formulated a way to quantify how many jobs at graduation map onto full-time professional jobs that require a law degree.  For example, the ABA Official Guide provides lots of comparable data by practice setting.  Law firms, judicial clerks, and government jobs could be weighted more heavily than business or academic jobs.  Unknown may also be treated as 100% unemployed rather than the current 25% presumption of employment.  Such changes would have the law schools scrambling to report better numbers in higher weighted categories rather than just finding ways to goose up the employed-at-graduation and employed-at-9 months figures.  Remember that Bob Morse explicitly endorsed the Law School Transparency movement.

We would like to suggest to our colleagues in the legal academy that we are approaching an endgame.  Here is the reality:  prospective students are not being given an accurate picture of their future employment prospects.  Why? Because we are all focused on filling next year's class with as many high credential students as possible, thereby protecting our school's place in the pecking order.  Our focus is so shockingly narrow that, from the outside looking in, it appears that our intent is to deceive incoming students.  Brian Kelly's letter to the deans essentially makes that point--law schools fall short on candor and ethical behavior.

The numbers that get submitted to U.S. News include many graduates who are technically employed but often significantly underemployed, often at positions that don't require law degrees.  Finer grained data get reported to NALP, but they are never published on a school-by-school basis.  If these data were released, prospective students may not fully process the information--that is an argument that we often hear law professors make.  But that does not alter our duty to provide "basic consumer information ...  published in a fair and accurate manner reflective of actual practice."  ABA Accreditation Standard 509.

At some point, all our lawyerly rationalizations will come to a bad end because a governmental agency or a court is going to challenge our right to self-regulation, thus ushering in a truly disgraceful chapter in the history of American legal education.  

Now is one of the very few moments in our careers as academics where we have to make hard choices and demonstrate that we warrant the trust and respect of our tenured positions.   Through our governance organizations (ABA, LSAC, NALP, AALS), we need to implement a system of complete transparency on employment outcomes.  If the system has real teeth, it will force us all to work very hard to ensure we are delivering value commensurate with the tuition dollars we collect.

It's the end of the road.  We likely have one last chance to get it right.

Defense Attorney Arranges Drug Buy To "Impeach" Informant; Criminal Conviction Affirmed

The Indiana Court of Appeals has affirmed a criminal conviction for attempted possession of marijuana by a criminal defense attorney who had claimed his actions were legally justified in defense of a client. It is quite a tale.

The attorney was defending a case involving felony methamphetamine dealing charges. He knew the identity of the state's confidential informant. His plan was to destroy the informant's credibility by showing that he was still dealing drugs. He arranged for two juveniles to purchase marijuana from the informant and assured the two that the conduct was legal.

He provided the juveniles with $200 to fund the purchase, recorded the serial numbers and arranged to tape the buy. The buy went down, but the juveniles were not totally trustworthy. They used $50 to buy a smaller amount of marijuana and used the rest for their own purposes. The attorney did not take possession of the drugs, but told the juveniles to hold the evidence. Once again they proved less than trustworthy. They smoked it instead.

The attorney sought the $200 from the client's mother, telling her that it was a litigation cost.

The attorney called upon the police and a prosecutor to take possesion of the marijuana, bringing the conduct to light. As a result, he was charged with the crime.

The court rejected a number of contentions. The attorney did not stand on the same footing as a law enorcement official conducting an undercover drug buy:

In sum, [the attorney] asks this court to grant him the same “legal footing” as law enforcement officers for the purpose of conducting an illegal drug buy in an effort to discredit a witness against his client. The legislature has clearly identified those persons legally authorized to engage in law enforcement, and defense attorneys are not included....An attorney is not exempt from the criminal law even if his only purpose is the defense [of] his client...This is not a close case."

Thanks to Don Lundberg for sending this along. (Mike Frisch)

New York Amends Rules Regarding Legal Services in A Major Disaster

The New York Court of Appeals recently adopted rules regarding the provision of legal services in the wake of a major disaster. The amended rule governs the provision of pro bono legal services on a pro hac vice basis after the Governor or other authority declares that a disaster has occurred. (Mike Frisch)

Old Law Still Good Law

A recent opinion from the Legal Ethics Committee of the D.C.Bar is summarized below:

D.C. Legal Ethics Opinion 31 (1977) concluded that it was a violation of the former Code of Professional Responsibility for a congressional staff lawyer to require a witness to appear before a congressional committee when the committee has been informed that the witness will invoke the self-incrimination privilege as to all substantive questions “and the sole effect of the summons will be to pillory the witness.” The committee declines a request to vacate Opinion 31 but notes that under the D.C. Rules of Professional Conduct, as under the former Code of Professional Responsibility, a violation occurs only where the summons serves no substantial purpose “other than to embarrass, delay, or burden” the witness.

A final footnote:

We express no opinion on the propriety of a witness invoking an opinion of this committee as a basis for refusing to comply with a congressional subpoena.

As you might imagine, there is no District of Columbia case imposing discipline for such a violation. Good luck proving that the "sole effect...will be to pillory the witness." (Mike Frisch)

Extra! Extra!

The Winter 2011 edition of the Georgetown Journal of Legal Ethics has just hit the streets. Among the highlights are an analysis of the value of U.S. legal education in the global services market by Professor Carole Silver and an article on interference with law school clinics from Professors Robert Kuehn and Bridget McCormack.

The edition may be ordered through this link.

As co-faculty advisor (with Professor Mitt Regan) to the journal, my thanks to the editors for their fine contribution to the profession. (Mike Frisch)

Limited Legal Services

The Mississippi Supreme Court has adopted amendments to Rules 1.1, 1.2 and 1.16 in conjunction with new Rule 6.5:

(a) A lawyer who, under the auspices of a program sponsored by a nonprofit organization
or court, provides short-term limited pro bono legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter:
(1) is subject to Rules 1.7 and 1.9(a) only if the lawyer knows that the representation of the
client involves a conflict of interest; and
(2) is subject to Rule 1.10 only if the lawyer knows that another lawyer associated with the
lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a) with respect to the matter.
(b) Except as provided in paragraph (a)(2), Rule 1.10 is inapplicable to a representation
governed by this Rule.

(Mike Frisch)

Withdrawal Granted For Substantial Fianancial Hardship

From the web page of the Rhode Island Supreme Court:

NAIAD Inflatables of Newport, Inc. (NAIAD), engaged the law firm of Duffy & Sweeney, Ltd. (D&S) to defend it in a civil lawsuit brought in 2005 by the plaintiff, Stafford J. King, III.  Soon, however, NAIAD became delinquent in its financial obligations to D&S.  Concerned with both a large receivable and a looming trial date, D&S filed a motion to withdraw from the case.  This motion was unopposed by the client or by opposing counsel.  A justice of the Superior Court denied the firm’s motion.  On the grounds of abuse of discretion by the hearing justice, the law firm timely appealed.

 D&S filed a motion to withdraw based upon NAIAD’s failure to fulfill its financial obligations under the engagement agreement.  Supported by an affidavit of counsel, the motion was properly certified and forwarded to all parties of interest in compliance with the Rules of Civil Procedure.  Providing its client with ample notice, D&S made numerous requests for payments, sent reminder invoices, and warned NAIAD that D&S—based on a signed engagement agreement between the parties—would seek to withdraw as counsel if the client failed to bring the balance current.  Further, D&S informed NAIAD that it would have the right to object before the Superior Court in the event that such a motion was filed.  Denying the unopposed motion, the hearing justice cited Article V, Rule 1.16 of the Supreme Court Rules of Professional Conduct, and ruled that granting the motion would have a “materially adverse effect” on the interests of the clients.

In reversing the Superior Court’s denial of counsel’s motion to withdraw, the Supreme Court said that the hearing justice did not accord adequate weight to the hardship and substantial financial burden that would befall D&S if the law firm were required to continue in its representation of a nonpaying client.  Moreover, the Court was of the opinion that the law firm’s request to withdraw was not presented at such a critical point in the litigation process that withdrawal would be detrimental to either the court or the client.

The opinion is linked here. (Mike Frisch)

Brave New World

The National Organization of Bar Counsel has posted the final recommendations of the Critical Issues Summit entitled Equipping Our Lawyers: Law School education, Continuing Legal education, and Legal Practice in the 21st Century. The summit was sponsored by ALI-ABA Continuing Professional Education and the Association for Continuing Legal Education.

The mission of the Summit (held in October 2009) was to "study and respond to the challenges of equipping lawyers to practice in a rapidly changing world. (Mike Frisch)

Rutgers Clinic Subject To Open Records Act

The New Jersey Appellate Division has reversed a trial court decision that the Rutgers Environmental Law Clinic was not subject to the state's Open Public Records Act ("OPRA").

The plaintiffs had sought documents relating to the clinic's finances and its representation of two private citizens' groups that were opposing the proposed development of an outlet mall.

The court here concluded that the trial court erred in exempting the clinic from OPRA and remanded to the trial court for a determination whether specific documents are exempt from disclosure under the definition of "public records." The trial court also must determine if records should be disclosed under a common lasw right to access. (Mike Frisch)

No License Required

An investigative reporter with 30 years of experience was denied the right to renew her license from law authorities to work as a death penalty mitigation specialist. An administrative law judge concluded that her work did not require her to have a license as a private investigator. The South Carolina Court of Appeals affirmed the decision.

The facts:

In 2001, following a thirty-year career as an investigative reporter covering high profile stories and court cases, O'Shea began working as a death penalty mitigation specialist.  Based on advice that a professional license would be a good credential for obtaining work in her new field, she applied to SLED [South Carolina Law Enforcement Division]for a private investigator's license.

Currently, there are about six individuals doing death penalty mitigation work, four or five of which are licensed as private investigators.  According to O'Shea, her work as a death penalty mitigation specialist includes: compiling social histories, gathering documents and other information, interviewing family members of clients and other individuals, and analyzing the material she acquires to help attorneys for capital defendants develop strategies.  Although her work is geared toward the penalty phase of a capital case, she occasionally participates in the guilt phase.  She rarely, if ever, testifies.

O'Shea described herself as "self-employed," with death penalty mitigation work as her primary job.  She is usually contacted directly by an attorney desiring her services.  If she agrees to take the case, counsel then requests the presiding judge to appoint her.  She charges by the hour according to the fee approved by the presiding judge.  The approved fees are paid by the Office of Indigent Defense.  It is undisputed that O'Shea does not work exclusively for any one attorney or law firm.  Nevertheless, she considers herself part of each defense litigation team that uses her services.

In 2007, after she had worked as a death penalty mitigation specialist for about six years, O'Shea was unable to renew her private investigator's license because of financial problems resulting mainly from medical problems that prevented her from working.  As a result, her license lapsed on September 16, 2007.  When she was able to resume working, she did not renew her license; however, she notified SLED that she was working on only one case and was not gathering any new information.

Later, however, a SLED agent contacted O'Shea to arrange an inspection of her records, explaining this was a routine procedure that should have been done every two years.  O'Shea initially intended to comply with the request until SLED demanded access to all of her records for the past year.  O'Shea refused to comply with this demand because of the volume of paper involved.  She contacted the attorneys with whom she had worked in the past year, all of whom took the position that the files in her possession belonged to counsel and were protected by the work product doctrine.  O'Shea offered to provide invoices with names redacted, but SLED did not respond to this offer.

On October 24, 2007, O'Shea applied to renew her license.  SLED refused to authorize the renewal for several reasons, among them O'Shea's prior refusal to allow an inspection of her records.  In December 2007, O'Shea, now represented by counsel, filed this action in the ALC, seeking an order directing SLED to renew her license or, in the alternative, an order declaring that death penalty mitigation specialists were not subject to the licensure requirements that applied to private investigators.

(Mike Frisch)

Can Stanford Be #1 in the US News Rankings? The Data

[posted by Bill Henderson]

In a recent story in the San Jose Mercury News, the dean of Stanford Law School, Larry Kramer, announced his intention to make Stanford the #1 law school in the country.  As noted by Brian Leiter, the story did not quote Kramer as saying that he wanted Stanford to be #1 in the U.S. News rankings.  The reporter, nonetheless, inevitably gravitated to this dominant measure. As noted by Dan Filler, most students, alumni, employers, and bystanders, cannot get their heads around the meaning or usefulness of alternative measures. 

Fortunately, Larry Kramer's comments have served up an opportunity to grasp some of the limitations and folly of the current dominant method of ranking law schools. (And by the way, I am certain that Larry Kramer knows most of what I am about to write--he definitely understands the math.  He was making comments for public consumption.  Like Kramer, I am trying to make Indiana Law #1 in the nation, albeit not in US News sense. Every faculty member at every law school ought to share this aspiration.)

The Research Question: What will it take for Stanford Law School to be ranked #1 in the U.S. News Law School rankings?

Andy Morriss and I annually construct a simulation model of the US News rankings.  It routinely explains 99.5% of the variance in the actual rankings, and it enables us to test endless "what if" scenarios.  So let's load the dice and make some really extravagant assumptions:

• Academic Reputation (25% of the input formula).  Increase Stanford's Academic Reputation from 4.7 to a perfect 5.0 (surpassing Harvard and Yale, who languish at 4.8). 
• Lawyer/Judge Reputation (15%). Increase the Lawyer/Judge Reputation from 4.8 to a perfect 5.0 (breaking their current 4.8 tie with Harvard and Yale).
• UGPA (10%).  Increase median UGPA from 3.88 to 4.0 (Harvard and Yale are at 3.89 and 3.9 respectively).
• LSAT (12.5%).  Increase the median LSAT from 170 to 180 (blowing past the 173 medians at Harvard and Yale).  This assumption is somewhat absurd because there are not enough perfect 180 scores to produce this median at any law school.

Surely, giving Stanford a perfect score on 62.5% of the US News weighting formula will make Stanford #1, right?  It turns out, the answer is no.  Yale still beats out Stanford by a hair.  Stanford would, however, finally muscle ahead of Harvard for #2.

It is fair to ask, what is it about the US News ranking formula that produces these peculiar outcomes?  The answer is standardization of the underlying inputs. In order to make things like library books, LSAT scores, and employment figures commensurable, US News converts the underlying arrays into standard deviation units where the mean is roughly equal to zero and approximately 66% of the input scores fall within one standard deviation above or below the mean.  The US News weighting formula is then applied to each USN input and the weighted inputs are summed to produce the final US News score.

Many of the underlying input distributions, however, do not reflect a typical normal distribution (i.e., bell curve).  They are skewed.  The reputation variables are roughly normal, and therefore they are unimportant--or, more accurately, unlikely to strongly influence school movement.  Likewise, UGPA and LSAT have a natural cap (4.0 and 180) that limits outlier scores.  And outliers are what skew distributions.

The biggest "uncapped" input variable is direct per student expenses at 9.75% of the input formula.  In theory, there is no limit to how expensive legal education can be.  Yale, it turns out, spends over $100,000 per student, not counting financial aid, which is a separate variable accounting for 1.5% of the input formula.  In contrast, Harvard and Stanford spend only $80K+ per year per student.  In standard deviation units, that translates into 5.8 for Yale versus 4.2 for Harvard and 4.5 for Stanford.  So Stanford has a 1.3 standard deviation gap to close.  Reputation, LSAT, and UGPA are not enough to overcome this deficit.

Implications

My back of the envelope calculations suggest that a check for $350 million ought to be enough to produce enough endowment income to eclipse Yale in the US News rankings.  This assumes that the money is used for things like books, more faculty, and higher salaries for everyone.  If the money is spent on student scholarships, however, Stanford would need a check for roughly $1.8 billion to be #1.  Again, these are the idiosyncrasies of the dominant method of law school rankings.

Stanford alumni are well heeled.  And, like all of us, they want to be #1. But here is my my advice: Before you write your check to give Stanford faculty a big pay raise and a lower teaching load, or give some rich kid with a 180 LSAT a free legal education, including living expenses, consider other investment opportunities. $350 million would go a long way to solving the AIDS epidemic an Africa.  $1.8 billion could provide life-altering educational opportunities for children mired in poverty.

The legal profession, especially our students, have some big problems at the moment.  And society's are even larger.  The best law school is one that prepares its students to solve these problems.  This requires a careful balance of innovative teaching and scholarship.  The U.S. News rankings don't capture these metrics.  In fact, they obscure them and create incentives for truly destructive behavior.  By and large the deans are trapped.  From my own perspective, I don't think even one law school in the US News Tier 1 has reached even 10% of its potential to educate and solve problems.  Too many one-professor silos.  Too much ego.

I am sorry to moralize.  But someone needed to say it.  Let's focus on some problems worth solving.  At the end of the day, it will be worth it.

Arbitration Decision To Reinstate Fired Executive General Counsel Overturned

The Wisconsin Supreme Court (with its typical 4-3 split) has held that an arbitration panel exceeded its authority by ordering the reinstatement of the dismissed general counsel of a corporation:

We agree with Menard [the corporation] that the panel exceeded its authority.  An arbitration panel exceeds its authority when its award violates strong public policy.  An attorney owes a fiduciary duty of loyalty to her clients, a duty so replete in our cases and in the Rules of Professional Conduct as to be axiomatic.  Such a duty is deeply rooted in our laws and embodies the strong public policy of the State of Wisconsin.  In this case, we conclude that by accepting reinstatement, Sands [the attorney] would be forced to violate her ethical obligations as an attorney.  Thus, we vacate the panel's award of reinstatement on the grounds that it is void as a violation of strong public policy.  Under the applicable employment discrimination laws, front pay is a substitute for reinstatement.  Accordingly, we vacate the panel's award of reinstatement and remand to the circuit court to determine an appropriate award of front pay.

The court majority explains:

Sands also made clear her views of Menard's leadership——her clients if reinstatement were upheld.  In her briefing before the arbitration panel, Sands stated that John Menard's conduct was "so monstrous and reprehensible that it shocks the conscience"; that he is a "reckless, callous actor who care[s] nothing about anyone else's rights or reputation"; that he "is a man with no parameters, no limits, no respect for the law and obviously, no self-discipline to control or limit his own behavior——nor does he see any need to"; that his honesty and integrity are "completely illusory"; and that his "dishonesty is serious and overwhelming."

Let there be no mistake——the mutual animosity and distrust between Sands and the executive leadership of Menard, the very people to whom her absolute loyalty would be owed, continued throughout the arbitration hearing and shows no signs of abating today.  Sands was right.  No reasonable person would consider reinstatement a possibility in this situation.  No one could have assessed this situation and determined that reinstatement could lead to a productive setting where both Sands and Menard would benefit.  Trust has been completely broken; nothing good could possibly come from reinstatement.  In view of this especially bitter litigation marked by personal and professional animosity, we see no way Sands could now return to Menard and serve the company in conformity with her ethical obligations.

If the level of hostility alone was not enough, Sands performed an unusually high-level and sensitive role at Menard.  She was the Executive General Counsel, heading up the in-house legal operations and supervising the legal work for all of Menard.  She also served as Menard's spokesperson and was a public representative to the community.  More than most attorneys, her position required a high degree of confidence and trust and a close relationship with Menard's executive leadership.  In order to perform her role, Sands had to represent the company's best interests with outside partners, attorneys, and the media.  Sands' unique and significant role at Menard required the highest level of good faith, loyalty, and mutual trust.

The facts recounted in the majority opinion tell a real horror story of the clients abusing their in-house attorney. The attorney met John Menard when he dated her sister. She had about five years experience when she was asked to serve as a corporate attorney and other functions. She was hired at an hourly rate and required to punch a time clock.

She later assumed the duties of the departing general counsel and was paid a fraction of his salary. She put up with it for a couple of years. When she pressed for a raise, she was threatened, humiliated, and fired. The panel described the termination, which came in the wake of her suggestion that she just might have claims against the corporation:

...on the evening of Tuesday, March 14, 2006, Sands was preparing for a meeting in her office when John Menard stepped in.  "This isn't working, is it," he said.  "I'm sick to death of your not getting back to Charlie and you don't respond and your threats."  John Menard then instructed Sands to work out an agreement with Charlie Menard by the end of business the next day or she would be "all done."  Then he left her office.

Moments later, John Menard returned and declared, "[Y]ou know what, you're all done right now.  Pick your shit up; I want your ass out of here.  You've got five minutes."  Sands asked if he was firing her.  John Menard stated that he was placing her on administrative leave.  Sands asked for a clarification and stated that Menard did not have an administrative leave policy.  John Menard repeated that Sands was on administrative leave, that she had better get moving, and that she now had only four minutes.  "[D]o you understand what you're doing right now is unlawful?"  Sands asked.  "I don't care," John Menard replied.  "I want your ass out of here."

At some point during this encounter, Sands turned to her computer in an attempt to log off.  John Menard saw this, approached her from the other side of her desk with his hand in a fist, and ordered her to get away from the computer.  He then continued to tell Sands to get "[her] ass out of there" and that he wanted "[her] ass gone."  Sands collected a few personal items, and left with John Menard following her out of the building.

John Menard threatened the attorney's sister to discourage her from testifying in the arbitration, saying that he would "hate to see her obituary anytime soon."

 The arbitration panel awarded damages of nearly $1.8 million that were not affected by the decision here. The panel had ordered reinstatement notwithstanding the attorney's decision not to seek that remedy.

The dissent would give deference to the arbitration panel's conclusions and result:

Although the majority's conclusions about a public policy are indeterminate, there is no doubt that attorneys have fiduciary and ethical duties and obligations of professional conduct.  Other employees also have fiduciary and ethical obligations to their employers.

The problem is that the majority is unable to pin down a particular rule, duty, or obligation or offer more than its own repeated assertions that if the award stands, a violation of ethical obligations would be the necessary result.  The majority claims that because the panel did not affirmatively discuss Sands' ethical duties as an attorney, this necessarily implies that the panel "never examined whether Sands could ethically perform her role if it awarded reinstatement." ...

The majority parlays this supposition into the conclusion that the award of reinstatement "would have the practical effect of forcing Sands to violate her ethical obligations."  Majority op., ¶65.  Both the claim and the observation are at best speculative and moreover are belied by the record

There is no reason to believe, much less to affirmatively conclude as the majority has done, that the arbitration panel did not consider the applicability of Sands' ethical obligations as an attorney.  It is no secret that Sands is an attorney.  Through its 49-page factual review, legal analysis, and ultimate findings, the panel was amply aware of Sands' professional role and her responsibilities toward the Menard corporation, its officers, and the individuals representing the corporation.  The panel explicitly acknowledged the "difficult[y]" of the "hostile" relationship between the parties.  In doing so they necessarily assessed the dynamic between attorney and client and the issues inherent therein.  Even if there were uncertainty as to what law the panel did or did not consider, the majority oversteps its bounds in review of an arbitration award when it construes ambivalence or silence in the record to justify overturning a result it disfavors.   As the majority recognizes, the party seeking to overturn the panel award bears the burden of proof.

Significantly, Sands and Menard explicitly stipulated that each member of the panel would be an attorney.  Each of the arbitrators was an experienced and successful attorney, themselves bound by the Rules of Professional Conduct and bound to be versed in those rules, which the majority opinion invokes to justify its result in the present case.

The opinion of the Wisconsin Court of Appeals is linked here. The company owns a large chain of home improvement store located throughout the Midwest. Forbes reports that John Menard is worth $7.3 billion and is the richest person in Wisconsin. (Mike Frisch)

 

 

Federal Standards of Review, new edition, and Holmes' The Common Law

Posted by Alan Childress

Because you cannot spell blogger without either ego or bore, I use this forum to announce June publication, by LexisNexis, of the 4th edition of a book on appellate and federal review which I coauthor with Martha Davis, called Federal Standards of Review.  It is in 3 volumes, for civil, criminal, and administrative appeals; previous editions were cited in some 350 cases including four Supreme Court opinions.  Justice Ginsburg once wrote me a sweet note about it (by hand!).  The new edition is expanded and thoroughly updated.  You may want to ask your law library to get one.

Today, I published to Amazon Kindle a digital ebook of Oliver Wendell Holmes, Jr., The Common Law.  It has my new Foreword and bio section of this great work from that great man.  That would seem to be no large accomplishment, other than my  trivially interesting Foreword, except that this is now the only online or ebook version of Holmes' masterpiece that actually uses Holmes' words.  All of the prior versions  -- free or paid, old version or Gutenberg's "2006 corrected" one -- are derived from ONE old scan from "Patient Zero," a book that was not held down on the copier so words from the inside margins are missing.  Thus on most right-hand pages, every eighth word disappeared.  That makes Holmes even tougher to read than normal.  Plus he apparently uses words like "docs" and "modem," being ahead of his time!  He uses "tiling" for "thing" and "ease" for "case"  and other poor scan vestiges.  You would think there would have been someone to have rescanned this and proofread it before posting to Kindle or Gutenberg, or online, but no.  Plus I linked and numbered the footnotes (the others have 250 instances of footnote "1"!).  No doubt, however, their book docs one tiling that no modem version of Holmes docs--it brings the eases to life for the reacling pubic.  And you saved S bucks!

I think it is unethical Reverse Plagiarism to stick Holmes' name onto a work he did not write that way.  HE did not leave out marginal words and sound like an idiot. (BTW, as to non-idiot, he delivered this as 12 lectures in 1880, without notes.)  HE did not think a right-of-way is a "casement."  One edition pronounces him Chief Justice of the Supreme Court. Taft would not appreciate that.  Holmes even looks unhappy on my cover about all this.

Consider a worse example: for $30, you can buy on Amazon a paperback purportedly of the late Philip Selznick's fantastic study, TVA and the Grass Roots.  And read this, supposedly by the author, "The jocation of administrative control in the area of operations, with the Authority as a weole, in relation 10 tha fmdfl IJOVCrflffietit, taken as an example".  If you know someone at U of California Press, please ask them to fix this.  (This is not one they produced, but they have not forced it down either, despite my telling them.  Why?  Because it is out of print?)  People should not be allowed to sell books that are in effect very good passwords for your medical records.

I just noticed that the price is the same for both my announced books, except the decimal place.  For individual purchase you should stick with Holmes, at $3.99.  I priced it less than other versions that are not proofread or linked in the notes.  If you do not have the Amazon app for PC, Mac, blackberry, iPad, etc., I offer a related version at Smashwords in epub, PDF (with active footnotes, clickable), rtf, and Sony reader formats.  More on the other versions to come.  Anyone with a computer can read it, as I explain here.

UPDATE:  a thoroughly ANNOTATED and thus decoded edition of The Common Law now available on Kindle and Smashwords, and soon on Nook, Sony and Apple iTunes.  It also uses the correct words.

Class Actions Alleging Unauthorized Practice Dismissed

The Florida Supreme Court has affirmed the dismissal of two class actions brought against Merrill Lynch Credit Corporation that sought return of document preparation fees on a theory that the corporation had engaged in the unauthorized practice of law. The court majority concluded that it had exclusive authority to regulate the unauthorized practice of law. While Florida statutes allow a private litigant to recover fees for legal services paid to non-lawyers, the plaintiffs here had failed to identify and plead facts sufficient to establish unauthorized practice by Merrill Lynch. This element may be proven by a prior court injunction or controlling opinion that the conduct at issue crossed the line.

Justice Canady dissented: "Neither the majority nor the respondents have identified any precedent in any other area of the law for the assertion of what amounts to exclusive issue-of-first-impression jurisdiction...I would quash the decision [below] and remand for further proceedings on the merits of the plaintiffs' claim of unauthorized practice." (Mike Frisch)

Public Policy, Punitive Damages And Fee Awards

The web page of the Ohio Supreme Court reports:

The Supreme Court of Ohio ruled today that an award of attorney fees in a civil lawsuit is distinct from an award of punitive damages, and the public policy of the state does not prevent an insurance policy from providing coverage for attorney fees when they are awarded solely as a result of an award for punitive damages.

Applying that analysis to a Cuyahoga County personal injury case, the Court found that an auto insurance policy issued to Linda Lahman provided coverage for a jury’s award of attorney fees to another motorist, Kimberly Neal-Pettit, who was injured in an auto accident caused by Lahman. The court’s 4-2 majority decision was authored by Justice Judith Ann Lanzinger.

Neal-Pettit was injured in 2003 when her vehicle was hit by Lahman, who was driving while intoxicated and fleeing the scene of an earlier collision. Neal-Pettit sued Lahman for damages arising from her injuries.

A jury awarded Neal-Pettit compensatory damages of $113,800 and an additional $75,000 in punitive damages. Based on a finding that Lahman had acted “with malice” in causing Neal Pettit’s injuries, the jury also awarded Neal-Pettit attorney fees that the court later set at $46,825 along with an additional sum for litigation expenses. Lahman’s insurance company, Allstate, paid Neal-Pettit the amounts awarded as compensatory damages, interest and expenses, but denied any coverage under its policy for either the punitive damages or attorney fees awarded by the jury.

Neal-Pettit filed suit against Allstate in the Cuyahoga County Court of Common Pleas seeking payment for the attorney fee portion of the jury verdict.  The trial court granted summary judgment in favor of Neal-Pettit.  Allstate appealed, arguing that it had not contracted to pay attorney fees and that an attorney-fee award is an element of punitive damages, which public policy prevents an insurer from covering. The 8^th District Court of Appeals affirmed the trial court’s decision, holding that attorney fees are “conceptually distinct” from punitive damages and that attorney fees were not expressly excluded from coverage by the language of the Allstate policy issued to Lahman. Allstate sought and was granted Supreme Court review of the 8^th District’s decision.

In today’s decision affirming the 8^th District, Justice Lanzinger rejected Allstate’s argument that the attorney fee award is an element of the jury’s award of punitive damages because both types of relief are based on a finding that the defendant acted “with malice.” Quoting from the Supreme Court of Ohio’s 1859 decision in Roberts v. Mason, she wrote:  “(T)he fact that the awards have similar bases is irrelevant. We have recognized that attorney-fee awards and punitive-damages awards are distinct: ‘In an action to recover damages for a tort which involves the ingredients of fraud, malice, or insult, a jury may go beyond the rule of mere compensation to the party aggrieved, and award exemplary or punitive damages ...  In such a case, the jury may, in their estimate of compensatory damages, take into consideration and include reasonable fees of counsel employed by the plaintiff in the prosecution of his action.’”

With regard to an exclusion of coverage in Lahman’s policy for “punitive or exemplary damages, fines or penalties,” Justice Lanzinger wrote:  “(T)he exclusion does not refer in any way to attorney fees or litigation expenses.  It specifically mentions only punitive or exemplary damages, which, as we have discussed, are conceptually distinct from attorney fees. Therefore, the term ‘punitive or exemplary damages’ does not clearly and unambiguously encompass an award of attorney fees. We decline to read such language into the contract.  We instead construe the policy strictly against the insurer.  ... Allstate, as the drafter, is responsible for ensuring that the policy states clearly what it does and does not cover.”

Finally, the Court disagreed with Allstate’s claim that it would be against public policy for an insurer to pay attorney fees on behalf of a policyholder when those fees are awarded solely as a result of a punitive damages award. 

Justice Lanzinger wrote: “It is true that public policy prevents insurance contracts from insuring against claims for punitive damages based upon an insured’s malicious conduct. … In addition, R.C. 3937.182(B) prohibits insurance coverage of punitive damages:  ‘No policy of automobile or motor vehicle insurance  ...  shall provide coverage for judgments or claims against an insured for punitive or exemplary damages.’  But R.C. 3937.182(B) mentions only punitive and exemplary damages, not attorney fees.  The General Assembly chose not to mention attorney fees when it drafted the statute, and we decline to add them. ...  Our holding will not encourage wrongful behavior merely because it permits insurers to cover attorney fees for which tortfeasors become liable. The tortfeasors remain liable for punitive damages awarded for their malicious actions, and these punitive damages remain uninsurable.  Payment by the insurer of an attorney-fee award violates neither public policy nor R.C. 3937.182(B).”

Justice Lanzinger’s opinion was joined by Justices Paul E. Pfeifer, Maureen O’Connor and Robert R. Cupp.

Justice Evelyn Lundberg Stratton entered a dissenting opinion, joined by Justice Terrence O’Donnell, in which she disputed the majority’s conclusion that an award of attorney fees that is based solely on an award of punitive damages is nevertheless separate and distinct from those punitive damages.

Justice Stratton wrote: “The Allstate policy here agrees to pay for damages because of bodily injury and property damage. The policy excludes coverage for ‘punitive or exemplary damages, fines or penalties.’  There is an attorney-fee award in this case only because of the punitive-damages award; thus, the attorney-fee award is a ‘penalty’ designed to punish.  The attorney fees are not compensable damages ‘because of bodily injury.’  I believe that the award is punitive in nature and is expressly excluded by the Allstate policy. Because of the punitive nature of an attorney-fee award, I also believe that it is against public policy for an insurer to pay attorney fees on behalf of its insured when the fees are awarded in connection with and as a direct result of a punitive-damages award.”

Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.

The decision is linked here. (Mike Frisch)

Damages For Sullied Reputation

A case decided on May 3 by the Massachusetts Supreme Judicial Court affirmed abuse of process and malicious prosecution claims brought by an attorney who had represented a divorce client. The attorney had been sued by the opposing husband, his business partner, and their corporation. the court summarized the facts: 

The defendants-in-counterclaim, Millennium Equity Holdings, LLC (Millennium), and two of its partners, David Rabinovitz and Joseph P. Zoppo (collectively defendants), appeal from the decision of a Superior Court judge holding them liable for abuse of process and the malicious prosecution of Attorney Edward M. Mahlowitz. The underlying dispute in this bitter litigation arose when Mahlowitz, representing Rabinovitz's wife in her divorce action against Rabinovitz, obtained an attachment on her behalf in the Probate and Family Court on Rabinovitz's interest in property owned by Millennium. The attachment was secured after the wife discovered by happenstance that Rabinovitz was concealing from her the imminent sale of the property.

The defendants made no attempt to dissolve or modify the attachment in the Probate and Family Court, despite ample opportunity and specific court rules permitting them to do so. Rather, eighteen months after the attachment had issued, and approximately one year after the attachment had been dissolved, Rabinovitz, Zoppo, and Millennium brought suit against Mahlowitz for abuse of process, malicious prosecution, and interference with contractual rights for obtaining the attachment. After failing to secure dismissal of the lawsuit, Mahlowitz counterclaimed against the defendants for abuse of process and malicious prosecution in connection with their suit against him.

After an eight-day, jury-waived trial in the Superior Court on the defendants' abuse of process claim, and on Mahlowitz's counterclaims, the judge ruled in favor of Mahlowitz both on the defendants' claims against him and on his counterclaims against them, awarding damages to Mahlowitz for the latter. She denied Mahlowitz's motion for sanctions pursuant to Mass. R. Civ. P. 11, 365 Mass. 753 (1974), against Robert S. Sinsheimer, the attorney representing Rabinovitz, and Isaac H. Peres, the attorney representing both Zoppo and Millennium at trial.

The Appeals Court reversed the judgment in favor of Mahlowitz on his counterclaims; it otherwise affirmed the trial judge in all respects. Millennium Equity Holdings, LLC v. Mahlowitz, 73 Mass.App.Ct. 29 (2008). None of the defendants sought further appellate review. We granted Mahlowitz's application for further appellate review on his counterclaims against the defendants, as well as the judge's order denying his request for sanctions.

Contrary to the defendants' assertion that the judge's findings were replete with error, we first conclude that the record supports Mahlowitz's claim of abuse of process against Rabinovitz. Specifically, the evidence, including the reasonable inferences therefrom, supports the judge's conclusion that the only motivation Rabinovitz had in bringing his lawsuit against Mahlowitz was to cause the removal of Mahlowitz as counsel for his wife in their divorce action. The judge also acted within proper bounds as a finder of fact in concluding that Zoppo and Millennium acted in concert with Rabinovitz to that same end. We thus affirm Mahlowitz's abuse of process claim against all of the defendants.

Mahlowitz's malicious prosecution claim is substantially similar to his abuse of process claim, and his damages under each are identical. Because we affirm the judgment on the abuse of process claim, we need not and do not reach Mahlowitz's malicious prosecution claim against the defendants.

As to damages, we conclude that the judge made errors in her evaluation of some aspects of the damages that require remand for recalculation of two discrete issues pertaining to damages alone. Last, we agree with the judge that Mahlowitz has not met his burden of proving that Peres and Sinsheimer acted in bad faith in representing the defendants in their claims against Mahlowitz, and that he is not entitled to sanctions against them.

Among other things, the court affirmed the award for damages to the attorney's reputation:

We are in full accord with the judge's observation that "an attorney is not much more than his reputation and that once sullied it is very difficult ... to undo the tarnish." The judge found that several pieces published about the lawsuit in Massachusetts Lawyers Weekly, "damaged Mr. Mahlowitz, both in the esteem with which he is held in the community of divorce lawyers and judges in the Probate Court." In particular, Mahlowitz testified that since the appearance of the Massachusetts Lawyers Weekly items, he had not received any appointments from Probate and Family Court judges in Middlesex County, who had often appointed him in the past. This evidence alone is compelling: we cannot imagine a more damaging result for an attorney than the loss of his credibility on the part of judges before whom he routinely must appear.

The judge additionally found, and we agree, that the publications in Massachusetts Lawyers Weekly were a foreseeable consequence of the lawsuit, and that the adverse publicity against Mahlowitz was "orchestrated," at least in part, by Rabinovitz. Among the four items published in that newspaper, one was a letter to the editor from Rabinovitz that sharply criticized Mahlowitz's conduct as dishonest, and suggested that he had lied to a judge in the Probate and Family Court. Although one article was arguably in favor of Mahlowitz-- remarking that it was "scary" that lawyers could be sued for abuse of process when placing ordinary liens in the course of divorce proceedings--the judge's finding that the widespread publicity about the case in the legal community damaged Mahlowitz's reputation is well supported.

The defendants nevertheless assert that Mahlowitz cannot recover for harm to reputation because he did not prove "real business loss" or other pecuniary harm resulting from damage to his reputation. We do not discern authority for such a requirement in this context, nor have the defendants directed us to any relevant source. In the context of defamation, we have explained that actual injury is "not limited to out-of-pocket loss" but instead includes "impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering."...Here, Mahlowitz can recover for intangible harm to his reputation separate from and in addition to any loss of business or other pecuniary harm he may have suffered. There was no error. (citations and footnotes omitted)

The case is Millenium Equity Holdings LLC and others v. Mahlowitz. (Mike Frisch)

"A Serious Blow to Legal Education": La. to Effectively End Clinics? (Or Dialysis Patients Will Suffer?!)

Posted by Alan Childress

Law School clinics in several states, notably in Maryland and Louisiana now, are under fire.  Real people may be hurt beyond imagination -- from indigent clients and neighborhood assocations to law students and ordinary medical patients (the latter because the pending La. bill would cut off funding for their treatments at Tulane).  Here is the story by Nick Marinello at Tulane about a pending bill in La. which would effectively kill most clinics at our four law schools.

A pending bill in the Louisiana Legislature that would restrict the roles of university law clinics could "deal a serious blow to legal education in our state," according to a letter written by law school deans from Tulane and Loyola universities to members of the state senate. In that letter, Tulane Law School interim dean Stephen Griffin and Loyola University Law School dean Brian Bromberger describe the essential role of clinical legal education and decry the chilling effect that the bill would have on university law clinics.  

The bill purports to regulate legal clinics but would in fact cripple them, write Griffin and Bromberger.  
Senate Bill 549 by Sen. Robert Adley, R-Benton, would prohibit law clinics at any state or private university that receives state funding from suing government agencies. In addition, the bill would forbid clinics from suing individuals and businesses for financial damages and curtail the ability to raise constitutional challenges.  

As stipulated in the bill, any violation of the law will "result in the forfeiture of all state funding to the university for that fiscal year."  

In an interview, Griffin said that he believes the restrictive language of the bill is targeting a particular clinic. "Although the bill is aimed at the Environmental Law Clinic, the target it actually hits is far more broad and affects nearly all of our clinics negatively, which would severely hurt our curriculum and our ability to serve the community by providing access to justice."  

Along with the Environmental Law Clinic, Tulane Law School operates clinics representing indigent clients in civil litigation, criminal law, domestic violence, juvenile law and legislative and administrative advocacy.  

According to Griffin, SB 549's prohibition of suing the government and restriction on raising constitutional issues would have a profound and negative impact on the attorney-client relationship.  "You can't say, 'yes I'll represent you but, by the way, I can't make an argument based on a state constitutional challenge'," said Griffin.  

The legislation also calls for all university law clinics to be subject to oversight by the House Committee on Commerce and the Senate Committee on Commerce, Consumer Protection and International Affairs. Currently, the Louisiana Supreme Court supervises law clinics.  

"Clinics have always been supervised by the courts," said Griffin. "They operate under the strictest limitations in the country. More regulation is simply unnecessary."  

Currently the bill is under review before the Senate Commerce Committee. Griffin encourages anyone interested in the welfare of clinical legal education to contact members of the committee to voice their concern.

The law deans' letter appears here [Download Deansletter].  Contact info for the Committee, in case you can share your view. What a sad way to celebrate the second week of JazzFest:  resisting a bill that may be targeted by petrochemical industries at our environmental clinic -- this, ironically, while the fishing industry tries to salvage its shrimp bed from oil -- but really will end one of the best things about legal education and about Loyola and Tulane.  Have they no shame?  And will this effort stop at La. and Md.?

Update:  letter from SALT opposing bill, here.

Ohio Changes Criminal Discovery Rules

The web page of the Ohio Supreme Court announced yesterday changes in criminal discovery rules:

The Supreme Court of Ohio today filed with the Ohio General Assembly final amendments to the annual update of the Rules of Practice and Procedure, including changes to the criminal discovery process that were developed through a collaborative process led by the late Chief Justice Thomas J. Moyer and including the criminal defense bar and prosecutors.

The amendments concern changes to the rules of criminal procedure and the rules of appellate procedure. Specifically, the amendments to Criminal Rule 16 call for a more open discovery process, and the revision of several rules of appellate procedure implements a procedure for en banc consideration in courts of appeals when separate three-judge panels within the same court of appeals reach conflicting decisions on the same matter of law.

The new discovery process would allow defense counsel access to materials that, under the current rule, prosecutors did not have to divulge. Changes in Crim.R. 16 also call for establishing a defendant’s reciprocal duty of disclosure and seek to protect victims and witnesses from potential harassment.

The discovery reforms were developed through an extraordinary cooperative process that involved leaders of the Ohio Prosecuting Attorneys Association and Ohio Association of Criminal Defense Lawyers. Chief Justice Moyer had urged them to collectively develop proposed rules that would be considered for adoption by the Supreme Court.

“The patience and spirit of cooperation required to realize these important and necessary changes to the discovery process speak volumes about Chief Justice Moyer’s collaborative, collegial nature,” said Justice Paul E. Pfeifer. “His vision and persistence and, finally, his stubbornness in supporting a just cause, led to this remarkable achievement for our legal system. For well over a decade, he worked for this change, and we have been through numerous starts and stops. But today, we stand in a great place – the proposed Crim.R. 16 emerged from this court by a unanimous vote, has the support of prosecutors and defense attorneys, and, we think, bipartisan support in the General Assembly. All of that is the direct result of Tom’s stewardship.”

The en banc provisions of the appellate procedure rules result from the Supreme Court’s decision in McFadden v. Cleveland State Univ. The Court held that “if the judges of a court of appeals determine that two or more decisions of the court on which they sit are in conflict, they must convene en banc to resolve the conflict.” Language was also added to the proposed amendments to ensure that an order or entry in reconsideration that results in an intra-district conflict also could be subject to en banc consideration.

Other changes to the criminal procedure rules include amending Crim. R. 12(K) to accommodate the new interlocutory appeal to review a trial court’s ruling on a prosecutor’s non-disclosure of material granted under proposed Crim. R. 16(F)(2). Amendments to Crim. R. 41 permit applications and approvals of search warrants to be accomplished by electronic means, including facsimile transmission.

The amendments were adopted unanimously by the seven Justices of the Supreme Court, with the exception of Crim. R. 41, which was adopted 6-1 with Justice Terrence O’Donnell voting no.

According to the Ohio Constitution, amendments to rules of procedure must be filed with the General Assembly. After the initial filing, which must occur before Jan. 15, there was a period of public comment; the Court revised the amendments and filed final versions with the General Assembly before the constitutionally mandated deadline of May 1. The amendments take effect on July 1, unless before that date the General Assembly adopts a concurrent resolution of disapproval. The process also included another public comment period after the amendments were first published last October.

The text of the rule change is available through this link. (Mike Frisch)