Monday, February 14, 2011
Posted by Jeff Lipshaw
For those of you out in the practice world who are curious about how academic legal theory and first year contract law pedagogy might be combined with real world intuitions and experience, I've posted a new article, Metaphors, Models, and Meaning in Contract Law , on SSRN.
The gist of it is this: the dominant metaphor for contract in practice and the academy is "contract as model." One upshot of this metaphor is an article of faith (among lawyers at least) about the rational linkage between what is going on before the fact in the creation of the contract, and what gets litigated after the fact. Sometimes the metaphor is appropriate, and sometimes it is not. I've played with my intuition and admitted casual empiricism that the contract, even in a heavily negotiated deal, is as often the "thing" that Arthur Leff conceptualized in his iconic 1964 American University Law Review article as it is a model or map of the transaction . I've proposed an alternative metaphor of "journey" in which the objectification of an agreement in the contract (a milestone, metaphorically speaking) is often as important as the content itself. The piece contains illustrations I use in class (see Wood v. Lucy, Lady Duff-Gordon, above, but you have to read the article to get the context), as well as a discussion of how I use the fundamentals of metaphor theory to explain hard cases in which the parties assert, and judges must choose between, competing legal "algorithms".
Why does there seem to be such a wide gap between the subject matter of the usual first-year contracts course and what practitioners (particularly transactional lawyers) actually experience? My claim is that it is the result of a powerful theoretical system whose hallmark is a closed linguistic system—in the coinage of one noted scholar, “an epistemic trap.” The subject matter of contract law requires dealing with legal truth not just as a coherent body of doctrine, but also correspondent in some way to actual self-legislation of the parties. I propose escaping the trap with a turn to metaphor theory. The underlying metaphor common to prevailing conceptions of contract law, and which demands some form of correspondent truth from the contract (and contract law), is “contract as model of the transaction.” I suggest alternative metaphors of categories as containers, ideas (including “the meeting of the minds”) as objects, and the transaction life cycle as a journey. The goal is to focus on the “subjective to objective” process of the transactional life cycle, and to consider the perspectives of the participants in or observers of the transactional life cycle, and the models and metaphors that shape the conceptual frames from within which those participants and observers perceive and make use of the legal doctrine.
February 14, 2011 in Abstracts Highlights - Academic Articles on the Legal Profession, Law & Business, Law & Society, Lipshaw, Teaching & Curriculum, The Practice | Permalink | Comments (0) | TrackBack (0)
Thursday, December 30, 2010
Posted by Jeff Lipshaw
The "Small Business" section of the New York Times has an article this morning about models small and entrepreneurial businesses are using to hire law firms, and strategies the firms are using to serve them. I'm not sure there's anything really new in here, but it does bring up a point that legal educators and young lawyers need to appreciate, particularly for those law grads who aren't headed to the traditional big law associate posting. Lawyers to small businesses are often the first and only outside adviser the firm has ever had. Listen to some of these snippets: "Make sure the attorneys understand your business - who your customers are, what your biggest areas of risk are, and so on." "One issue is a traditional distrust of lawyers shared by many entrepreneurs: 'They see the lawyer as saying no to daring business moves." "I needed access to a trusted source and only to pay for it when I use it, like weekends and so forth. I use my attorney also to brainstorm ideas."
This is consistent with my view that business lawyers (or at least effective or successful one) can't simply give clients the law and expect them to make the integrated business/legal decision. For more on this from a theoretical standpoint (with practical examples), see The Venn Diagram of Business Lawyering Judgments: Toward a Theory of Practical Metadisciplinarity, 46 Seton Hall L. Rev. 1 (2011).
Monday, November 29, 2010
The Utah Supreme Court found that a district court had abused its discretion by denying a plaintiff leave to amend his complaint against his former employer and supervisor. Those allegations included:
...[the supervisor] had engaged in numerous questionable management practices. Specifically, when an employee did not meet performance goals, [the supervisor] would draw a mustache on the employee using permanent marker or he would remove the employee's chair...he would patrol the employees' work area with a wooden paddle, which he would use to strike desks and tabletops. [The employer] was aware of [his] actions and encouraged his behavior because it led to increased revenue."
Could things get worse?
You bet, according to the complaint. The supervisor asked for volunteers for "a new motivational exercise." The exercise was waterboarding, after which the plaintiff alleges that he was told that he and his co-workers "should work as hard at making sales as [he] had worked at trying to breathe."
The case was remanded for further proceedings.
Wired has information about the suit here. (Mike Frisch)
Friday, November 19, 2010
The Nevada Supreme Court affirmed the grant of summary judgment to a law firm defendant because the plaintiff had already achieved a full recovery in a claim against a departed firm partner. The court lays out the facts:
Elyousef, a client of the O’Reilly firm, entered into a business transaction with his attorney, C. Dean Homayouni, who was employed by O’Reilly during the early stages of the transaction. The transaction resulted in Homayouni obtaining Elyousef’s interest in Nevada Oil and Land Development, LLC (NOLD), which in turn owns a gas station in Las Vegas. Homayouni left O’Reilly because the law firm opposed the transaction due to a conflict of interest between Homayouni and the firm’s client, Elyousef.
When the business relationship soured, Homayouni sued Elyousef. Elyousef filed a counterclaim against Homayouni, alleging that Homayouni negligently caused him to lose his interest in NOLD. The district court awarded Elyousef $150,000 in damages plus $225,631.22 in costs and fees. Homayouni subsequently settled with Elyousef for $50,000 plus the return of his interest in NOLD. Elyousef then sued O’Reilly for breach of fiduciary duty, negligence and legal malpractice, negligent supervision, respondeat superior, breach of contract, and breach of implied covenant of good faith and fair dealing. The district court granted summary judgment in O’Reilly’s favor, concluding that the doctrines of double recovery and issue preclusion barred Elyousef’s ability to recover from O’Reilly. On appeal, Elyousef maintains that neither doctrine bars him from further recovery.
Monday, October 11, 2010
Posted by Jeff Lipshaw
Imagine how difficult public debate in these partisan times can be for someone like me whose motto is "extremism in the pursuit of moderation is no vice." I haven't seen Inside Job, but I have read the reviews, good and bad, and I think I get the point. I confess to never having seen a Michael Moore "documentary," A Civil Action, or Erin Brockovitch. But this is from a reviewer, Keith Uhlich in TimeOut New York, who liked it, and it doesn't inspire me to fork over the twelve bucks: "Ferguson uses innumerable tricks of the slick-doc trade (pop-music montages; gotcha smash cuts; celebrity narration—in this case, Matt Damon). Even the title is a loaded, tragedy-invoking provocation." Nor am I enticed by the appeal to post-partisanship in the pursuit of outrage, as Uhlich describes it: "Ferguson’s trying to move beyond the political dichotomies that divide us into bellowing factions and show how rampant greed screws us all."
Since I'm about to fly off to Minneapolis to give a milk-toasty response (see above motto) to the question "Did Capitalism Fail?" (my answer: Capitalism Didn't Fail, But the Metaphors Got a "C"), I decided I ought to think for a little bit this morning whether I was wrong, and director Ferguson was right. I thought that particularly because my friend Frank Pasquale at Concurring Opinions also liked the movie a lot, and that means I have to take it seriously, if for no other reason that Frank has taught me so much on other issues. As I expected, Frank gets past the slick doc stuff (I cringe at the idea of watching the 60 Minutes-style "did you stop beating your wife?" questions) and suggests there are four arguments being made: (1) Wall Street compensation is loopy; (2) the Obama administration hasn't done anything to create reform, instead relying on the same bankers as the Bush administration; (3) the Obama administration is as taken with the revolving door cabal of "Goldman Sach alums and fail-upward regulators" in which it is no longer possible to determine who captured whom; and (4) the U.S. has turned into a financial (rather than mechanical, civil, bio, or electrical) engineering power bound to lose out to China and others in the long run. I also think Frank's review is honest in describing its own position (see contra my motto above): "I’ll be looking beyond the core of the economics profession for a compelling account of a fair and just society. When it comes to finance, progressives should also realize they have few friends in the current administration."
I realize, however, that my milk-toasty approach hasn't quite failed me (I can't speak for others). My essay is about the relationship between causation, as scientists would explore it, and meaning, as the rest of us would derive it. The approach of Inside Job is less an explanation of what happened than a narrative of its meaning. I'm still agnostic on the question whether "rampant greed screws us all" mainly because I like my MacBook and my iPhone, and I think they are the products of rampant greed. On the other hand, I recently turned down the opportunity to invest in a derivative akin to a synthetic CDO in part because the idea of it bugged me, even though I had no good response to my broker why it was any worse than investing in the underlying market.* As I note in the essay, one way to interpret events for their meaning is to decide whether misfortune is the result of gods or demons, and sometimes it is. Sometimes, however, it is "stuff happens." (I decided I wanted this post printable someday in a family newspaper.) We are, however, imbued with a tendency to teleology, that is, the seeing of purpose (even if purpose is no more than "function") when things like solar systems, automobiles, and macro-economies seem to work with a predictability regularity. I like graphs, however, and I came up with this one as I was walking to the T this morning:
As you can see, I had no problem placing the Salem "witches," Saddam Hussein, and Andrew Fastow, one of the architects of the Enron scam, on the continuum. In the spirit of the movie, however, I wasn't quite sure where to place the rest of these names (or the myriad others - like God, the boogie-man, the Trilateral Commission, or the Bohemian Grove - that occurred to me).
My point is not that there are never culpable demons, but that sometimes those who we think are culpable demons are not. I have not yet been persuaded by the level of public discourse (Ann Coulter? Sarah Palin? Michael Moore? Glenn Beck? Jon Stewart? Stephen Colbert?) that we can say we've reached a level of rationality such that witch trials were then, and now is now. What is comforting is that at least I can have a reasoned and civil discussion with Frank, without the sound bites, even if we don't agree!
*UPDATE: Actually, I did come up with a reason or rationalization but it's almost as complicated as the investment vehicle, so I won't bother explaining it.
Monday, August 2, 2010
The New Jersey Supreme Court has held that a title insurance company is not liable for an attorney's theft of funds involved in the real estate transaction. The attorney had already stolen the entrusted funds when the transaction was completed. The court found that there was no agency relationship between the title insurer and the attorney.
The clients had filed a complaint against both the attorney and the title insurance company with the Lawyers' Fund for Client Protection. The fund sought to enforce the award that it had made to the clients, but the claim was dismissed by the trial court as to the company. The Appellate Division reversed the trial court on agency grounds.
Here, the court held that the evidence did not establish liability on the company's part. (Mike Frisch)
Wednesday, July 28, 2010
The New York Appellate Division for the First Judicial Department affirmed the denial of a motion to move a legal malpractice action to Texas. The case involves allegations that the defendant law firm identified the wrong entity entitled to payment from the client, causing the client to pay the wrong entity.
A dissent makes a powerful argument in favor of Texas, recounted in part below:
The motion court never expressly applied the factors that go into deciding a forum non conveniens motion but seemed to recognize that this case had little connection to New York. Instead, the court denied the motion because the parties represented that the Texas statute of limitations was shorter than New York's and defendant did not agree to the application of the borrowing statute. Nevertheless, this case clearly does not belong in New York. Defendant maintains an office here, but none of the attorneys at the New York office were involved in the events underlying this case. Plaintiffs' principal places of business are now in Connecticut and virtually all the underlying events occurred, for the most part, after plaintiffs had moved their offices. That plaintiffs previously maintained places of business in New York is not relevant, because the documents and witnesses are no longer within this jurisdiction.
More important, there will likely be a need for testimony from non-party witnesses, such as individuals from the two Apollo entities, who are located in Texas. Plaintiff argues that there will be no need to call anyone from Apollo. I cannot agree. Rather, testimony from Apollo witnesses may be integral to determine whether defendant law firm was negligent in confusing the Apollo entities. For instance, the determination could depend on what someone at one of the Apollo entities communicated to defendant. The lead attorney on the underlying transaction, who lives in Texas, no longer works for defendant, and as with the Apollo witnesses, it is unlikely a New York court itself can compel his live testimony without assistance from a Texas court. This case thus represents an unnecessary burden on the New York courts. In addition, all records that either Apollo entity has are located in Texas. Further, the events pertinent to this case all occurred outside New York, the documents are in Texas and, as this case concerns what defendant did or did not do, all of the relevant witnesses are in Texas. Finally, Texas certainly has an overriding interest in regulating the conduct of the lawyers admitted in that state. (citation omitted)
Thursday, June 24, 2010
An order denying the disqualification of Buchanan Ingersoll based on a former client conflict was reversed by the West Virginia Supreme Court, which granted a writ of prohibition. The court recited the following facts:
Bluestone Coal and Bluestone Coal Sales, the petitioners herein, are companies engaged in the production and sale of coal. Both Bluestone companies are part of a conglomerate of twenty-nine affiliated closely-held companies owned and operated by James C. Justice, II (hereinafter “Mr. Justice”). These affiliated companies share one common General Counsel, Mr. Stephen W. Ball (hereinafter “Mr. Ball”), and the majority of these companies, including the two Bluestone companies involved in this case, are headquartered in the same office building in Beckley, West Virginia.
Mountain State, one of the respondents herein, owns and operates a coke plant in Follansbee, West Virginia, and purchases coal to convert into coke; Mountain State's principal place of business is in Wheeling, West Virginia. On October 5, 2007, Mountain State and Bluestone Coal Sales entered into a coal supply agreement whereby Bluestone Coal Sales agreed to supply all of the coal required by Mountain State's Follansbee coke operations. Bluestone Coal served as the guarantor for Bluestone Coal Sales' obligations under this agreement. When Bluestone Coal Sales failed to deliver the requisite amount of coal in accordance with the agreement's terms, Mountain State filed suit against both Bluestone Coal Sales and Bluestone Coal in the Circuit Court of Ohio County on September 9, 2008.
The law firm representing Mountain State in the underlying litigation, whose disqualification the Bluestone companies seek, is Buchanan Ingersoll. Buchanan Ingersoll is a large, nationwide, law firm, whose principal place of business is in Pittsburgh, Pennsylvania. At various times, Buchanan Ingersoll has been retained as counsel for certain of Mr. Justice's companies, including Dynamic Energy, Inc.; Harlan Development Corporation; James C. Justice Companies LLC; and Sequoia Energy, LLC, for which representations engagement letters were signed. Buchanan Ingersoll also has either directly represented or provided legal counsel to both Bluestone Coal and Bluestone Coal Sales; however, the exact nature of the relationship between Buchanan Ingersoll and the Bluestone companies, as well as whether there currently exists an attorney-client relationship between these entities, is disputed by the parties and will be discussed in further detail in Section III.B. of this opinion. See Section III.B., infra. It appears that Buchanan Ingersoll began
providing legal services for both Mountain State and Mr. Justice's companies in approximately 2005.
Following Buchanan Ingersoll's institution of Mountain State's Ohio County lawsuit, the Bluestone companies moved the circuit court to disqualify Buchanan Ingersoll from continuing its representation of Mountain State. In support of their motion, the Bluestone companies variously contended that they were current clients of Buchanan Ingersoll such that continued representation of Mountain State in an adverse capacity would violate Rule 1.7 of the West Virginia Rules of Professional Conduct; that they were former clients of the law firm such that continued representation would violate Rule 1.9; and that, because certain, individual attorneys had formerly represented the Bluestone companies, their disqualification should be imputed to the entire law firm in accordance with Rule 1.10. By order entered November 20, 2009, the circuit court denied the Bluestone companies' motion to disqualify Buchanan Ingersoll, ruling that “no disqualifying conflict exists with respect to Buchanan Ingersoll & Rooney, LLP's representation of Mountain State Carbon, LLC, Plaintiff, in this action.”
The court found the matters substantially related:
...it is apparent that the nature of Buchanan Ingersoll's representation of Mountain State in the underlying proceedings is “substantially related” to its prior representation of Bluestone Coal insofar as both the former and subsequent representations concern the Bluestone companies' performance, or lack thereof, under coal supply agreements under the factual, circumstantial, and legal contexts of the two cases.
Factually, the two representations are virtually the same. Both the Coal Sourcing case and the instant litigation involve the same type of contract: a coal supply agreement. The agreements both involve the same mine, i.e., the Keystone Mine, and the same coal from that same mine. In both proceedings, Bluestone Coal has been named as a party defendant with respect to the failure to deliver coal as specified by the subject coal supply agreements and is ultimately liable for any obligations arising thereunder.
Circumstantially, the two representations also are substantially related and strikingly similar insofar as “the current matter involves the work the lawyer performed for the former client.” Both cases allege deficient performance of a coal supply agreement, which is precisely the type of case in which Buchanan Ingersoll formerly represented Bluestone Coal. Specifically, Buchanan Ingersoll formerly represented Bluestone Coal as a defendant defending against allegations of a failure to perform a coal supply agreement in the Coal Sourcing case, and now is currently representing Mountain State as a plaintiff claiming that the coal for which it had contracted has not been delivered pursuant to the governing coal supply agreement in the instant litigation.
Legally, the two representations are nearly identical such that “there is a substantial risk that representation of the present client will involve the use of information acquired in the course of representing the former client, unless that information has become generally known.” ...Under the facts of this case, not only is there a substantial risk that the attorney could have used information obtained from the former client in the prior representation, there is actual evidence that such knowledge has been used to the former client's detriment. In both cases, Bluestone Coal was named as a party defendant. During the course of the Coal Sourcing litigation, Bluestone Coal asserted a defense of force majeure to excuse its nonperformance of the subject coal supply agreement. Reliance on this defense required Bluestone Coal to reveal its confidential coal supply agreements to its counsel. During the litigation initiated by Mountain State, Buchanan Ingersoll, on behalf of Mountain State, requested documents from Bluestone Coal regarding its prior reliance on the defense of force majeurebefore Bluestone Coal had filed an answer to Mountain State's complaint or had indicated what, if any, defenses it intended to assert in response to such claims. Because Bluestone Coal had not yet attempted to rely upon the defense of force majeure, and had not even had an opportunity to respond to Mountain State's complaint, it is apparent that Buchanan Ingersoll, from its former representation, possessed sufficient knowledge of Bluestone Coal to anticipate the defense upon which it may have relied in response to Mountain State's complaint. This strategy indicates that Buchanan Ingersoll used information it obtained from its former representation of Bluestone Coal to the detriment of its former client. Thus, because the subject matter of Buchanan Ingersoll's former and subsequent representations are virtually the same, it is clear that the third criterion for disqualification has been satisfied.
The court found that the elements of a prohibited former client conflict had been established. (Mike Frisch)
Saturday, June 19, 2010
Posted by Jeff Lipshaw
The always insightful and interesting Howard Wasserman (FIU, left) provoked a discussion over at PrawfsBlawg on "student centered" teaching that, in the comment thread, turned into that ancient debate about all those theorist law professors at odds with their practical minded students. I posted a comment, responding to "Vladimir" and "BL1Y", that I thought was worth re-posting here. I think, as a long time practitioner AND law professor (me) interested in highfalutin' theory (that is, given my odd background, I think I could teach a jurisprudence class, a trial skills class, and a transactional skills class), I have some credibility on both sides of the issue.
How the legal academy came to its present configuration wasn't the result of some logical exercise, but a matter of historical happenstance. That's not uncommon. Most intractable social and political realities arise that way (see Northern Ireland or Israel-Palestine). The reality now is that you are both correct in your fundamental observations: there IS a gap between what most law students want (unless they go to Yale) out of their educations, and what most law professors want out of their careers. It may well be that something like the financial crisis of the last couple years, and the shrinking of big law firms engenders a complete restructuring of the legal academy into a Ph.D. like "department of jurisprudential studies" with its place in the College of Arts and Sciences, and more trade school like professional schools, but I doubt it for two reasons that undercut both polar positions.
1. Law professors can't merely be theorists and have their gravy train survive. What allows so many law professors to engage in theory is the fact that their students who have little such interest fund the theoretical pursuit. First, law schools are notorious cash cows. When is the last time you heard of anyone organized a proprietary or for-profit sociology department? The cost of providing the education, unlike in the hard sciences or med schools, is relatively low compared to the market price of the tuition. Second, it's the salaries in private law firms that by and large set the benchmark for law professor salaries. Even if you take a pay cut to move into academia from the big law firm that is the typical immediate pre-professor job, you aren't getting paid like an assistant professor in the English department.
2. Law students don't REALLY want to be trained in the legal equivalent of the barber college or truck driver school. While law students may get frustrated with the theory often foisted upon them by their professors, the present paradigm in the academy (and, honestly, this preceded the influence of US News, because the elite schools in US News were the elite schools when Bob Morse was still wearing short pants), they show over and over again that they are significantly influenced by the brand of the law school, regardless of the specifics of the pedagogical program. And the brand, as the institution of the legal academy has developed, has a lot to do with all that theoretical stuff law professors are churning into law review articles. I'm not arguing that is good or bad (although I wouldn't be a law professor just to teach; it's the theory that floats my boat after all those years of practice); it's just the reality. Seriously, tell me that a rational student, faced with the choice of Stanford or UCLA, with all those practice-challenged theorists, or an excellent "skills-focused" third or fourth tier school, and no significant difference in tuition (see point 1) (and maybe not even then, but that's an interesting econometric question), wouldn't choose Stanford or UCLA?
My "dean speech" (that nobody has asked me to give) is that this is an intractable polarity that the profession is simply going to have to manage by way of leadership that provokes empathetic perspective at both poles. The poles aren't coherent, and there is no rule of nature that says they have to exist, much less coexist. But they can, just like lots of polarities, continue to coexist. Faculties simply have to make concessions to the concerns and needs of students or their gravy train is going to disappear; students and alumni are going to have to acknowledge the driving forces of academic prestige and advancement, or they are going to lose that patina (and brand, and earning power) that comes with a law degree other than from ITT Tech, DeVry (which owns a med school on the island of Dominica, "a lush, classically Caribbean environment"), or the University of Phoenix, all of which would be perfectly capable of offering what BL1Y wants (InfiLaw already does).
Monday, June 7, 2010
A majority of the Georgia Supreme Court held today that the Administrator of the state's Fair Business Practices Act has no authority to compel a law firm engaged in debt collection on behalf of creditors to comply with his investigative demands. The majority found that
...the nature of ...representation of clients in a legal capacity is not destroyed by the utilization of "staffing, training, equipment or support personnel." (citation omitted) Indeed, the manner in which such support is used and managed in the representation of clients is part of the actual practice of law and, therefore, does not involve the entrepreneurial or commercial aspects of professional practice within the contemplation of the [Act].
Justice Melton, joined by Justices Hines and Nahmias, dissented:
Because the [Act] is a law of general application that has nothing to do with impermissibly regulating the practice of law in violation of separation of powers, I must respectfull dissent from the majority's erroneous conclusion that the remedies relating to [the law firm's] allegedly abusive debt collection practices "must be found outside the [Act]." (quoting the majority) Investigating violations of the law that happen to involve lawyers does not automatically amount to impermissibly "regulating" the practice of law, as a lawyer who violates the law is just as subject to investigation as any other common offender.
Wednesday, June 2, 2010
Posted by Alan Childress
One of my students doing a brief "independent study" on legal ethics wrote her paper on the 2009 Louisiana bar regulation of advertising, including internet and web advertising and blogging, and certain per-use fees and screening the bar requires. The rules were modeled on the restrictive Florida rules. The Louisiana act was challenged in federal district court late in '09 to a mixed result, as she details -- the judge nixing some procedures and fees while approving other parts of the act.
It's an interesting story and she helpfully explains what this means in nearly 25 other states. The student is Brittany Buckley--now a proud Tulane grad--and she said I could share it on LPB. It is called Intersecting the First Amendment, Ethics, and the Internet: Memo to Other States From the Louisiana Experience, and you can Download Buckley_ch 1 here.
This paper was turned into chapter one of the student book, called Hot Topics in the Legal Profession~2010, sold digitally on Amazon and Smashwords in nine formats including simple PDF (plus soon available for Nook and Apple--though iPad can read it now on its Kindle app). You do not need to own a Kindle to read Kindle books, but anyway there is always pdf or rtf from Smashwords. I blogged about the project here and included my Foreword as a download. This chapter should give you another taste of what the overall book includes, such as friending judges and judicial elections; ancillary businesses of law firms under labor law, actual friendships of judges, settlement ethics, and the Caperton case and final result. Get it while it is hot, and remember that sales benefit Tulane's nonprofit Public Interest Law Foundation.
The ethics book is featured on my publishing website at Quid Pro Books. We seek submission of books or monographs on law, legal history, and law and society -- and of course legal ethics -- plus other academic subjects. For information for you to submit your dissertation, here is my earlier post, but we also publish panel presentations, proceedings, and original manuscripts. Information for prospective authors is here.
Tuesday, June 1, 2010
Posted by Jeff Lipshaw
I can tell you that one of the most difficult things for an aspiring professor to do is actually to get a paper read! Hence, if you write in the area of business law, I strongly recommend that you give serious thought to submitting a paper to Conglomerate's Junior Scholars Workshop, now in its fifth iteration. The deadline for submissions to Christine Hurt (Illinois) (firstname.lastname@example.org) is June 26, 2010, and the presentations will begin July 19, 2010.
Tuesday, May 25, 2010
The Ethics Committee of the South Dakota State Bar opines that a contingent fee may be charged in a contract action betwen domestic partners. Rule 1.5(d) prohibits such arrangement in domestic relations actions involving divorce, support or the value of a property settlement. The claims here do not fall within the prohibitions:
...since the desired recovery is based on a cash transaction for the purchase of real property, it is much more in the nature of an ordinary contract action than a domestic relations action. It is therefore not subject to the restrictions of Rule 1.5(d) and a contingent fee is permissible.
Monday, May 24, 2010
The South Carolina Supreme Court held that the State may not directly appeal an order disqualifying an assistant solicitor. The facts:
The defendant in this case...was charged with the murder of his ex-wife...as well as one count each of first-degree burglary and possession of a firearm during the commission of a violent crime and three counts of assault with intent to kill.
An assistant solicitor in Clarendon County was assigned to prosecute the case. Defense counsel...moved to disqualify the individual assistant solicitor based on the fact that the husband of the assistant solicitor had represented Wilson in his divorce from the murder victim just sixteen months before the alleged murder, and the brother-in-law of the assistant solicitor had represented Wilson at his bond hearing on the criminal charges.
The circuit court granted the motion for disqualification. The State appeals from this pretrial order, arguing the circuit court applied an incorrect legal standard in granting the motion for disqualification.
The court concluded:
We hold the policy implications present in Hagood, i.e., the right of a party to retain counsel of his or her choosing and the development of an attorney/client relationship, are not compelling factors when considering the disqualification of an assistant solicitor. The reasons the Court articulated in Hagood as justification for allowing the direct appeal are not present here, as the State has no substantial right that has been invaded, and the State's ability to appeal has historically been limited in criminal matters.
The appeals in which this Court has considered the issue of disqualification of either one solicitor or an entire solicitor's office have been appeals arising after the defendant's conviction, as they are in the posture of the defendant raising the issue as a ground for reversal. This is consistent with the general rule that a defendant may not appeal until after he is convicted and sentenced. We see no justification for extending different treatment to the State so as to allow direct appeal of this pretrial order. (citations omitted)
Friday, May 7, 2010
The South Dakota Supreme Court affirmed a trial court's permanent injunction prohibiting the unauthorized practice of law by a graduate of the University of South Dakota School of Law3 who has never been admitted to practice in South Dakota. The enjoined graduate had contacted represented criminal defendants, which resulted in complaints from the public defender. The accused also had attempted to participate in a child abuse case, calling herself an "independent investigator and advocate." She defended her conduct by stating that she had "merely assisted individuals whose attorneys had failed them. "There were also a number of other incidents that the trial court found amounted to the unauthorized practice of law.
The court also rejected a number of challenges to the trial court's order, including that a case involving a defendant named Fast Horse was referred to as the Fast Wolf case. The court found that this error created no valid appeal issue.
The court also found that a provision of the injunction that prohibited the accused from contacting represented defendants without permission of counsel did not violate her rights of association.
A news report from last year in the Rapid City Journal provides additional details about the subject of the injunction. (Mike Frisch)
Wednesday, May 5, 2010
The Wisconsin Supreme Court has affirmed a determination that the Milwaukee Symphony Orchestra must pay a 5% tax on the sale of concert tickets. The symphony had argued that the concerts were primarily intended to be for education, rather than entertainment, and were thus exempt from taxation. The court found that there was an evidentiary basis for the conclusions of the Tax Appeals Commission that the concerts were properly treated as entertainment.
There is a concurring/dissenting opinion that would hold that the primary purpose of certain youth concerts was educational, applying an analysis of the question:
...because the Youth Concerts will cause a child's knowledge to expand as the child is presented with a new musical genre or the exposure to orchestral instruments with which he is not familiar, thereby educating the child, and during the concerts the child's time will pass agreeably, thereby entertaining the child, I must determine how the Youth Concerts' taxable and nontaxable attributes are to be evaluated. See Webster's Third New International Dictionary, 723, 757 (1961) (defining educate and entertainment). In so determining, I examine the Youth Concerts' attributes first from the perspective of the Milwaukee Symphony, the entity that presented the concerts, and then from the perspective of the educators who took their classes to the concerts during the school day, based in part on the way in which the Youth Concerts were marketed.
The concurring/dissenting opinion examined the various performances to high school, middle school and other venues including Kinderkonzerts. (Mike Frisch)
Tuesday, May 4, 2010
The New York Appellate Division for the First Judicial Department affirmed an order denying an attachment sought by a law firm suing for unpaid fees. The court's concluded:
Order, Supreme Court, New York County...entered October 5, 2009, which, in an action for unpaid attorneys' fees, denied petitioner law firm's application to attach in aid of arbitration respondent former client's interest in the action that petitioner had first been retained to represent respondent wherein respondent sought, inter alia, the return of a down payment on an airplane, but enjoined respondent from assigning his interest in that action, unanimously affirmed, with costs.
The denial of an attachment was a provident exercise of the court's discretion, as there was no showing that a potential arbitration award may be rendered ineffectual without an attachment. Petitioner's papers contain no details as to respondent's financial condition, nor is there any assertion that respondent "will secrete, dissipate or otherwise squander his assets" before the arbitration award is rendered. There is also no evidence or allegation contradicting respondent's sworn statement that he has never had any judgments rendered against him, and that he is financially solvent and stable. (citations omitted)
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)
Monday, April 26, 2010
The Maine Supreme Court vacated a judgment disqualifying a Washington, D.C. law firm in a matter in which an employee claimed a hostile and discriminatory work environment while employed at the Maine Education Association.
The Association hired the law firm to conduct an investigation of the employee's allegations. The employee was interviewed by a firm attorney with her own counsel present. The attorney advised the employee that he did not represent the Association but was conducting an independent investigation. The employee claimed, but the interviewing attorney denied, that she was assured of confidentiality. The attorney later substantiated the employee's allegations of discrimination.
When the employee filed a complaint against the Association, two other law firm attorneys entered an appearance as pro hac vice counsel. The attorney who had interviewed the employee had departed. The trial court granted the employee's motion to disqualify the law firm in the litigation.
Here, the court concluded that the moving party has the burden of establishing an affirmative ethical rule violation that would result in actual prejudice. General allegations will not suffice. The trial court must make express findings in that regard. The moving party had "failed to point to any particular prejudice she has suffered or will suffer and...the [trial] court made no such finding of actual prejudice."
A concurring justice would find the question closer than the majority and views it as "better practice not to have the same firm perform a discrimination investigation and represent the employer in any resulting litigation."
A dissenting justice would affirm the disqualification order, concluding that the interviewing attorney had misled the employee into believing he was an independent investigator and had disclosed information to the employer in violation of his commitment to her. The dissent also concluded that the attorney-investigator may be a necessary trial witness. (Mike Frisch)