Monday, April 5, 2010
The District of Columbia Bar Legal Ethics Committee has recently opined on the practice by immigration attorneys of executing affidavits of support for their clients. The conclusion:
Lawyers in immigration matters may not execute an Affidavit of Support (U.S. Citizenship and Immigration Services Form I-864) on the immigrant’s behalf as a joint–sponsor while continuing to represent the immigrant in the matter. Typically, a person who signs an Affidavit of Support agrees to support the immigrant at an annual income that is not less than 125% of the federal poverty level so that the immigrant will not become a public charge. The ensuing contractual obligations continue for years after the immigrant is admitted on the basis of the Affidavit of Support. The Affidavit of Support is a guarantee of financial assistance to a client. Such guarantees are generally prohibited by Rule 1.8(d). Because the obligations continue long after the completion of the immigration proceeding, the undertaking does not fit within the narrow safe harbor of Rule 1.8(d)(2), which allows, but does not require, financial support strictly necessary to sustain the client during a proceeding. An Affidavit of Support undertaking by a lawyer to a client is also fraught with peril under Rule 1.7(b)(4) (conflicts of interest). Thus, a lawyer who wishes to serve as a joint sponsor for an immigration client by executing an Affidavit of Support on the immigrant’s behalf must withdraw from the representation of that client before doing so.
Wednesday, March 31, 2010
The Florida Judicial Ethics Advisory Committee has now weighed in on a series of questions concerning "friending. " Judicial assistants may friend so long as they do so in conformance with this opinion:
Several opinions clearly hold that judicial assistants are not subject to the Code of JudicialaConduct. See JEAC Op. 95-12 (where a majority of the Committee believed that the Code of Judicial Conduct did not apply to judicial assistants for seeking donations and fund-raising activities outside the courthouse and outside their administrative duties); Op. 93-45 (law clerks not bound by Code of Judicial Conduct when engaged in partisan political activity during their personal time).
While the Code may not apply directly to judicial assistants, it may indirectly impact them and their duties. In JEAC Op. 00-08, the Committee recommended that the judge direct its court employees, including judicial assistants, to not accept gifts. The Committee explained that “the acceptance of such gifts places the fidelity and the integrity of the court into serious question.” JEAC Op. 00-08; see also Canon 3C(2), Fla. Code of Jud. Conduct. Furthermore, in Op. 06-32, the Committee opined that a judicial assistant should not accept employment cleaning offices of attorneys who have appeared or were likely to appear before the judge. That conduct, coupled with the monetary implications, “gives an appearance of impropriety and has an adverse impact on the public perception of the integrity of the court system.” JEAC Op. 06-32; see also Canon 2B, Fla. Code of Jud. Conduct.
In JEAC Op. 09-20, the Committee recommended that a judge not add lawyers who may appear before the judge as “friends” on a social networking site, nor allow lawyers to add the judge as their “friend.” The Committee believed “that listing lawyers who may appear before the judge as ‘friends’ on a judge’s social networking page reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.” Canon 2B.
The concern presented in this inquiry is whether a judicial assistant adding a lawyer as a “friend” on a social networking site indirectly conveys the message that the attorney, who may appear before the judge, has a special position to influence the judge. The mere fact that personal information is being disseminated between the judicial assistant and a lawyer on the social networking site does not adversely impact the public perception nor compromise the integrity of the court system. Prohibiting the judicial assistant from expressing himself/herself outside the courthouse infringes upon his/her First Amendment freedoms. This form of expression by judicial assistants is not contemplated in our Canons and therefore not a violation of Canon 2B.
As long as a judicial assistant utilizes the social networking site outside of the judicial assistant’s administrative responsibilities and independent of the judge, thereby making no reference to the judge or the judge’s office, this Committee believes that there is no prohibition for a judicial assistant to add lawyers who may appear before the judge as “friends” on a social networking site.
However, a judge would continue to have the responsibility under Canon 3C(2) to “require staff, court officials, and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge. . . .” Therefore, in the unlikely event that a lawyer attempts an ex-parte communication through the social networking site, the judge should direct the judicial assistant to immediately “de-friend” the lawyer and to immediately report it to the judge.
The committee also opines that a candidate for an elected judgeship and lawyers who may appear before the judge if elected may "friend' each other.
Finally, there is this opinion:
(1) Whether the Code of Judicial Conduct requires a judge who is a member of a voluntary bar association to “de-friend” lawyers who are also members on that organization’s Facebook page and who use Facebook to communicate among themselves about that organization and other non-legal matters.
(2) Whether a judge may allow an attorney access to the judge’s personal social networking page as a “friend” if the judge sends a communication to all attorney “friends” or posts a permanent, prominent disclaimer on the judge’s Facebook profile page that the term “friend” should be interpreted to simply mean that the person is an acquaintance of the judge, not a “friend” in the traditional sense.
(3) If a judge accepts as “friends” all attorneys who request to be included or all persons whose names the judge recognizes, and others whose names the judge does not recognize but who share a number of common friends, whether attorneys who may appear before the judge may be accepted by the judge as “friends” on the judge’s Facebook page.
Wednesday, March 24, 2010
Posted by Jeff Lipshaw
In the gym today, I was reading an article in Outside that reminds me of a Law & Order plot's back story. I don't know anything about family law, but I do write about judgment, and while I'm generally loathe to second-guess reasonable ones, and have a fairly strong libertarian streak, this one seems to call out for - well, if not the Department of Social Services, then maybe some friends' intervention? If that's possible.
The story is about 13 year old Jordan Romero, who with his somewhat wacko sounding father, and his father's more grounded sounding partner, has climbed five of the Seven Summits - the highest peaks on each continent - and is planning an Everest expedition this May from the Tibet side, and without professional guides. (Some of the exchanges with the kid and his parents reminded me of that L&O episode with the totally dominating father who controls everybody in the family.) As far as I could tell, not a single mountaineering professional thought this was a good idea - but it sounds like "hockey parents" gone mad. (I may be influenced by the fact that I am not a climber but I am a climbing story aficionado, likely brought on by the fact that one of my former law partners, Lou Kasischke, was a participant and minor character in the tragic 1996 Everest climb that Jon Krakauer wrote about in Into Thin Air.)
I don't know diddly about family law, or how the state goes about protecting children from really dumb parents, so I don't know how much leeway is given, or whether this is even controversial from a legal standpoint. I invite comments. But I'm willing to take a stand and say, even if the young man returns safely, this is really stupid! If he wants to climb Everest when he's 21, more power to him! But there is no reason that a child needs to be doing this, and you can't persuade me that he's made the decision to do it as a knowing and consenting adult.
Tuesday, March 16, 2010
[Posted by Bill Henderson]
The American Bar Foundation invites scholars to join the intellectual community of the ABF for the 2010-2011 academic year (8/31/10 to 6/30/11).
For visitors, the ABF offers an office, phone, and computer but no stipend. The ABF encourages national and international scholars on leave or sabbatical to take advantage of the ABF's diverse intellectual community and excellent facilities.
Preference will be given to visitors whose scholarship coincides with the research agenda of the ABF and who will be in residence fulltime. Visitors will participate in the intellectual life of the ABF, including participation in seminars.
If you have an interest in this opportunity, please send an email to Robert Nelson at email@example.com, subject line: Visiting Scholars Program, which states (1) the topic on which you are working, (2) the preferred dates for residence, and (3) the days each week you would expect to be at the ABF, (4) attach a CV. Applications should be received by April 1, 2010 though later applications will be considered as space allows. The ABF Appointments Committee will review applications and prospective visitors will be notified in late Spring 2010.
Saturday, March 13, 2010
Posted by Jeff Lipshaw
My article on financial bubbles and earthquakes, The Epistemology of the Financial Crisis, is due out any moment in the Southern California Interdisciplinary Law Journal. In it, I suggest there are parallels between the science of earthquakes and the science of financial booms and busts and the epistemological crises that I claim ensued when the workings of the world managed to burst the bubble of faith in predictive sciences with respect to each of them. What interested me as a lawyer in particular, as discussed in the piece, is the lawyerly equation of causation with blame. I had a friendly debate a few weeks ago with one of my faculty colleagues who said she did assess this last bubble correctly before it burst. I have no doubt she's right, but proving it's anything more than luck is far more difficult because of the counter-factuality problem - otherwise known as 20-20 hindsight - in historical causation.
It turns out I'm not the only person who has a dual interest in bubbles and earthquakes. The Wall Street Journal has an article this morning about Professor Didier Sornette, the director of the Financial Crisis Observatory at the Swiss Federal Institute of Technology in Zurich. As a geophysics professor at UCLA, he has studied earthquakes, which he concludes are more difficult to predict than anything else. As a professor of finance, he tries to predict market bubbles, having now made several predictions and locked them away in encrypted files.
Once again, the counter-factuality problem raises its ugly head. Even if it turns out he's right, it won't prove much. Sporadic evidence confirming a theory doesn't carry much weight, even if we accord a lot of weight to theories (like quantum mechanics) that haven't been falsified, but have been confirmed in thousands of experiments and applications. Nor will being wrong, I suspect, damage his career, the case in point being Ed Yardeni, who made his name for several years predicting the collapse of the world because of the Y2K problem.
Friday, March 5, 2010
The Maine Supreme Court has again denied Husson University's request for permission to allow its future Juris Doctor graduates to sit for the bar examination. The court found that the renewed request detailed "a program largely identical to that proposed in its [denied] 2007 submisions." The court had conducted a hearing and received statements from a variety of groups including its Board of Bar Examiners.
The renewed request had sought the court's "preliminary approval of a blueprint of its proposed law school program" rather than blanket approval for its graduates. The court expressed concern that the University has apparently decided not to apply for ABA accreditation and has not yet begun operations:
Like any other nascent law school, and in the absence of any other existing accrediting body, Husson may apply to the ABA for provisional accreditation after it has been in operation for one year...It could then demonstrate its compliance with all the other ABA standards while the ABA is reviewing its position on the issue of tenure. If, at the conclusion of the evaluative processes, Husson has met all of the other criteria, and the ABA decides not to change its standards on tenure, Husson must then decide whether to revisit its own policy on tenure.
Husson's faculty had voted to eradicate the faculty tenure system more than 15 years ago. (Mike Frisch)
Thursday, February 18, 2010
The New Jersey Appellate Division has held that an agreement between an attorney and three defendants (two individuals and a corporation) that the attorney would not represent parties in litigation adverse to the defendants was void.
The agreement was entered into while the attorney was negotiating with defendants on behalf of clients and also was tied to a provision by which the defendants waived conflict of interest claims against the attorney. The attorney had previously provided legal services to an entity in which some of the defendants were principals.
The attorney then sought a court determination that the agreement violated New Jersey RPC 5.6(b)(restriction on right to practice) in order to bring suit against a corporation owned by the individual defendants.
The court here held the agreement void as a violation of public policy and refused to enforce it on grounds of equitable estoppel. The ethical provision exists for the benefit of the public and "that purpose would be thwarted if equitable estoppel principles allowed the [agreement] to stand." (Mike Frisch)
Saturday, February 6, 2010
This is your political ad on drugs. Any questions?
It gets even more bizarre at the end.
By the way, Jeff, that breed of sheep on the pedestal at about 22 seconds into it is a Suffolk.
Sunday, January 31, 2010
Posted by Alan Childress
And send cease and desist letters to Mom & Pop tshirt shops who for years have been selling clothing asking that two-word question? Why, the NFL of course. And the timing seems to be now because the Saints are in the Superbowl -- no one in the Front Office (wherever the NFL is) seemed to care when the team was just losers.
Never mind that the Who Dat phrase was actually invented for other local teams like St. Augustine High School and later borrowed for the Saints by fans. And used in 1983 as associated with the Saints in a copyrighted recording, by players and Aaron Neville, who apparently are not getting any tshirt royalties out of all this (nor the Marx Brothers, who used the two words in a movie, borrowing from vaudeville). And that the "Saints" name as a football team was used by lots of local high schools, including my son's St. Martin's Episcopal School, long before the NFL ever thought to place an awful franchise in the city. Who stole from whom?
The NFL is targeting designs without the Saints or NFL logo or name on them -- just
anything associated with the Saints and that two-word phrase. (Espn image right, from an AP photo.) And in this specific case that other emblem is simply the fleur de lis.
The fleur de lis? THE FLEUR DE LIS? The NFL makes claim to the FLEUR DE LIS? That has been around as a symbol for New Orleans since, oh, like 1713??? Or for that matter the flags of Quebec, Nova Scotia, Louisville, Detroit, St. Louis, Baton Rouge, and Lafayette! And Bosnia. And a city in Finland called Liljendal (ironically named since our Governor Bobby Jindal is now being asked to sue the NFL over this lily, the official state symbol). And the Boy Scouts.
I hope that relatives of Jean-Baptiste Le Moyne, Sieur de Bienville send a cease and desist letter to the NFL. I just hate it when my neighbor borrows the antique family-heirloom lawnmower and then files an injunction to claim it was his all along.
Wednesday, January 27, 2010
Posted by Alan Childress
The New Orleans Saints are going to the Superbowl on February 7. Jury trial is scheduled for February 1. It is basically the irresistible force versus the utterly movable object. As my colleague Tania Tetlow wrote in sending this to us, "A wise decision from a local judge."The judge ordered today:
The Court takes judicial notice that Saintsmania permeates the City of New Orleans. Many prospective jurors for the Parish of Orleans, several attorneys involved in this litigation and Court personnel plan on traveling to the promised land -- the Superbowl in Miami, Florida. The Court recognizes that this pilgrimage enhances the chances of the Who Dat Nation to acquire the long sought after Holy Grail -- the Vince Lombardi trophy.With that, the jury trial scheduled for February 1 was re-set for February 9 (in pdf here: Download Order_Trial_Continued_Saints_to_Superbowl). And my son's school sent me a similar email canceling school on Monday, February 8. All this in the middle of Carnival!
Posted by Alan Childress
And a commenter at the Huffington Post worries that the upgraded version will be named the Max iPad.
But seriously it is not a Kindle killer -- I am a big fan of the Kindles and tout their advantages and tips elsewhere -- as long as the Apple pad uses backlit LCD, has relatively short battery life, and iBooks cost $15.
Thursday, January 21, 2010
The New Jersey Supreme Court upheld a trial court decision finding that parties to a discrimination case did not reach a settlement through a mediator. The court lifted a bar "placed on public interest attorneys and defendants from simultaneously negotiating merits and attorneys fees in Consumer Fraud Act cases." Such negotiations are now allowed. The defendants in such matters may not insist upon fee waivers or dictate to plaintiffs and their counsel concerning the fee division between lawyer and client. The court concludes that a defendant "has no legitimate interest in how the plaintiff and attorney divvy up the settlement." The court adopted the approach suggested by Justice Brennan in his dissent in Evans v. Jeff D.
Justice Albin authored the opinion for a unanimous court. (Mike Frisch)
Friday, January 15, 2010
An attorney was retained by a surviving spouse on her own behalf and on behalf of her two children to prosecute a wrongful death action. The complaint was not timely served and the case was dismissed. The client hired new counsel to sue for legal malpractice and that case was dismissed on statute of limitations grounds.
The Nebraska Supreme Court held that the claims of the children were not time-barred, as the statute was tolled until they reach the age of majority. The court held that the privity requirement is not absolute in a legal malpractice action. Rather, the attorney had an independent duty to the children. (Mike Frisch)
Thursday, January 14, 2010
The District of Columbia Court of Appeals affirmed the grant of summary judgment against an attorney-plaintiff who had challenged an act adopted by the City Council that made it unlawful for professionals (including lawyers) to solicit business within 21 days of a motor vehicle accident "with the intent to seek benefits under a contract of insurance or to assert a claim against an insured, a governmental entity, or an insurer on behalf of any person arising out of the accident." The court rejected the attorney's First Amendment challenge to the provision, applying the analysis of the U.S. Supreme Court's precedents. The court in particular relied on Florida Bar v. Went For It.
The court noted that the act contains several exemptions from the 21 day ban, including immediate solicitation of legal business through the mail. The court also noted that there was evidence that victims are inundated with solitications in the wake of an accident. The court also rejected the contention that the act interfered with its authority to regulate the practice of law. (Mike Frisch)
Monday, January 11, 2010
Friday, January 8, 2010
The dismissal of claims brought against a law firm was ordered by the New York Appellate Division for the First Judicial Department:
This case involves professional services surrounding the design and implementation of a tax driven, sophisticated, individual private pension plan costing millions of dollars. The parties had various professionals in the form of accountants and lawyers representing them. Plaintiff describes himself, not as a member of the consuming public, but as a sophisticated entity, to wit: "a commodities trader on the New York Mercantile Exchange" who "operated [his] business as a sole proprietor." Therefore, this transaction was "not the modest' type of transaction the statute was primarily intended to reach" (id. [internal citations omitted]). Plaintiff also recognizes that "the target market of the Pendulum Plan' was for businesses, (such as mine) with a stable cash flow and minimal number of ancillary employees" rather than the consuming public in general.
Moreover, as plaintiff admits in his affidavit, it was not the form of the Pendulum Plan in general that ran afoul of IRS regulations, but rather the operation of plaintiff's particular plan that used life insurance as a tax shelter "in amounts that greatly exceeded both IRS imposed limits and the terms of the plan document prepared by Bryan Cave and approved by the IRS." As it was the operation of plaintiff's particular plan that caused the problems with the IRS, this is essentially a private dispute among the parties relating to advice that plaintiff received and his particular plan structure, rather than conduct affecting the consuming public at large.
The court found that claims of unjust enrichment, legal malpractice and negligence were not established:
The allegations do not support the claims for unjust enrichment against Bryan Cave and Smith and Hartstein. Whatever benefits they may have received were too attenuated from the conduct alleged and from their relationships with plaintiff. The claim is also not viable as against Bankers, and Thornhill as Banker's agent, because the express terms of plaintiff's valid insurance contracts govern Bankers' obligations to plaintiff.
The motion court should have dismissed the legal malpractice claims against Bryan Cave and Smith because no attorney-client relationship existed in 2002. The motion court was correct that the tax opinion letter was insufficient to support an attorney- client relationship, considering the letter stated it was for ECI solely and contained disclaimers cautioning readers to procure tax advice tailored to their specific plan. The motion court was also correct that the limited power of attorney was insufficient to show an attorney-client relationship as that document could also have authorized nonattorneys to act on behalf of plaintiff. The limited power of attorney only authorized Bryan Cave to represent "Robert A. Dennenberg, a Sole Proprietorship Defined Benefit Pension Plan" before the IRS and only for "Form 5307," which was the application submitted to the IRS for it to determine whether to approve the Plan. Plaintiff does not contend that Bryan Cave was negligent in submitting the Form 5307.
However, the motion court improperly relied on plaintiff's entirely conclusory allegations that plaintiff retained the services of Bryan Cave in 2001 to support the legal malpractice claim. Plaintiff points to no communications with Bryan Cave for legal advice about implementation of the Plan. Plaintiff offers no objective facts or actions to show the existence of an attorney-client relationship or the parties' mutual agreement that Bryan Cave would perform ongoing legal services for plaintiff.
In a last ditch attempt to hold Bryan Cave responsible, plaintiff claims Bryan Cave was negligent in defending him during his 2004 audit before the IRS, until October 25, 2005 when plaintiff retained new counsel. However, plaintiff points to no damage relating to Bryan Cave's alleged negligence during the audit period. Rather, according to plaintiff's allegations, all of plaintiff's injury stems from the implementation of the Plan, not from any actions the attorneys took during the audit period. Accordingly, the court should have dismissed the cause of action for legal malpractice. (citations and headers omitted)
Saturday, January 2, 2010
Monday, December 21, 2009
Friday, December 18, 2009
Posted by Jeff Lipshaw
I was an Avatar skeptic, but having read the reviews this morning and watched the trailer (available through the link), I'm going to see it. What about avatar lawyers? As part of my business lawyering judgment project, and I've been surveying the literature on artificial intelligence and the law. Could a computer (or an avatar lawyer) ever make a difficult judgment? I want quickly to summarize the field (over-simply, no doubt) and make one central observation. I think the answer to that question is "yes," but it's probably not the kind of "yes" that makes us comfortable. [See Update below on my incorrect use of Avatar Lawyer. If it makes you feel better, think "Robo-Lawyer."
First, let me pose a prototypical problem at the magnitude of difficulty (or complexity) I want to address (this is an excerpt from an in-process piece):
A small manufacturing firm makes plastic electrical connectors. It sells five million of them a year to the automotive industry at a price of fifty cents a unit. The firm's gross revenues are thus $2.5 million. The form purchase order from the automobile manufacturer provides that the supplier is responsible for all losses, including consequential damages, arising from any defect. If the connectors turned out to be defective, their replacement would require two hours of time from a service mechanics (roughly $100). The automobile manufacturer refuses to modify the form warranty provision. Should the firm sell the connectors?
Note the number of business and legal issues this hypothetical presents. It requires a lawyer (human or avatar) to understand the default rules under Section 2-207 of the Uniform Commercial Code, the negotiated alternatives to that statute, to predict possible legal outcomes and weigh the legal risks against a business opportunity with a known payoff, taking into account risk averseness and cognitive biases.
We now need to sort through different kinds of reasoning and their amenability to being replicable in a computer (our avatar lawyer). There's a certain aspect to this that is purely deductive, and capable of being programmed, even by a dolt like me. When I've taught UCC 2-207, I've used a flow chart to chart the deductive system it incorporates. From a given set of assumptions, using another set of rules of inference, the program tells you whether you have a contract and on what specific terms. (See flow chart left.) Embedded within the flow chart, however, are questions the answers to which are "yes" or "no", but the reasoning to which involves something other than deduction. For example, the deductive system requires an assessment at Step 8 whether the terms in the expression of acceptance are "different from" or "additional to" those in the offer. That assessment is not deductive. It may be analogical - we look at other instances of terms being different or additional and decide whether our case is closer to the ones in which the answer was "yes" than to ones in which the answer was "no." Or we could say, perhaps, that the assessment is inductive. Here we are going to look at all the past cases interpreting "different from" and derive a general rule that distinguishes "yes" cases from "no" cases. (Kant referred to this, by the way, as "reflective judgment." I will get to why it's a judgment in a moment.) The other piece of the inductive process would be to take the rule thus derived and determine whether our case falls within the rule. (That's what Kant referred to as "determinant judgment.") We see the principle of "garbage in - garbage out" at work here; if the analogical or inductive reasoning along the way is poor, the deductive process of the flow chart isn't going to be very helpful.
More below the fold.
Thursday, November 19, 2009
Posted by Alan Childress
Rating law schools by the number of "SuperLawyers" as alum is not a ranking of any kind. It is flat wrong for anyone to treat this seriously. It is a publicity stunt by a commercial enterprise. Surely law school deans will have the good sense and ethical mettle to ignore this charade.
Well, no. In addition to actually addressing the "ranking," the dean at Northwestern has gone so far as to rewrite its [non]methodology to suit his school's purported image, combining it with the top 14 by USNews and adjusting for class size. Story here, with a twist: the writer's editorial view that essentially all's fair in war and rankings. Well, no -- again.
As John Steele has written on several occasions, how can we teach ethics to law students if we are not acting ethically as regards to ratings and reputation? Actually he said it better: "I think that law schools are teaching by example that cooking the books is what lawyers do."
Update: combining the top 50 of USNews with the metric of number of alum over age 45 who have attended at least two Jazzfests, Tulane is the #1 law school in the country!
Update 2: Brian Leiter on the specious methodology used by SuperLawyers Inc.
Update 3: Jeff Lipshaw on the hoax here.
Update 4: our prior post on Attorney Man and lawyer portrayals in comics.