Saturday, March 31, 2007

Unfitness To Practice

A lawyer admitted to practice in Missouri and Kansas was indefinitely suspended by the Kansas Supreme Court after entering into a diversion agreement for possession of child pornography. The conduct came to light after an employee of the lawyer found material in a locked trunk. The court expressed concern that the lawyer had failed to accept responsibility for the conduct, as he blamed the person who had introduced him to child pornography, the employee (who filed the bar complaint) and his own lawyer. The court found that the lawyer had violated Rule 8.4 (a) and (b), which prohibits criminal conduct that adversely reflects on fitness to practice. (Mike Frisch)

March 31, 2007 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Judicial Campaign Misconduct

The Maine Supreme Court censured and briefly suspended a judge for misrepresentations against an opponent for judicial office that may have had an impact on the election results. The judge had previously been sanctioned as an attorney for writing an intemperate letter to a judge in connection with litigation against former law partners. (Mike Frisch)

March 31, 2007 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Judge Censured For Presiding Over Trial Of Spitter

An Oregon judge was censured for presiding over a case where the defendant, a jail inmate, was accused of a felony offense because he had spit on a prison guard. The judge's brother was a guard at the same prison. The defendant waived his right to a jury trial. Then, the judge called counsel into chambers and advised them of his brother's employment. He asked defense counsel not to disclose the information to his client. Defense counsel told the client after the judge had found him guilty. The conviction was vacated. (Mike Frisch)

March 31, 2007 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

I Wouldn't Want to Join an Anthropological Study Sample That Would Have Me as a Member

Posted by Jeff Lipshaw

I just got back from the gym.  Since the headphone jack for the sound on the TVs on the machine I like to use doesn't work, I usually grab one of the magazines on the rack for diversion purposes.  WhileHarpers_208x86 usually I would prefer the ones that assess the ten best and ten worst Oscar night gowns (this year I voted for Nicole Kidman and Cate Blanchett, but then every year I vote for Nicole Kidman and Cate Blanchett), for some reason I took the January 2007 edition of Harper's.

What caught my attention was an essay entitled "Army of Altruists: On the alienated rDgraeberight to do good" by David Graeber, a Yale anthropology associate professor (left).  Right off the bat, I liked the non-extreme and nuanced view that neither egoism nor altruism is somehow inherent in human nature.  Says Graeber, "very few of our actions could be said to be motivated by anything so simple as untrammeled greed or utterly selfless generosity."  Nevertheless, we manage to set egoism and altruism in opposition to each.  From there, Graeber develops the following propositions:

1.    The coalition of economic libertarians and fundamental religionists that is the political Right tries to enhance the division between egoism and altruism and thus to appeal to the extreme views on each.  The left seeks to efface the distinction by holding that you can do good and make good at the same time (using the Kennedy family as the paragon of this).

2.  "The real problem of the American left is that although it does try in certain ways to efface the division between egoism and altruism, it largely does so for its own children.  This has allowed the right, paradoxically, to represent itself as the champion of the working class."  Here the thesis is that the working class views it as difficult but not impossible to become rich, but impossible to join the intelligentsia.  The child of a working person has a shot at being a corporate executive, but almost no chance of being "an international human-rights lawyer or a drama critic for the New York Times."

3.  The avenue by which the children of the working class can achieve the nobility of altruism is by joining the military.  On the other hand, the campus radicals of the 1960s became the academicians of the 70s, 80s, and 90s.  They had "set out to create a new society that destroyed the distinction between egoism and altruism, value and values.  It did not work out, but they were, effectively, offered a kind of compensation:  the privilege to use the university system to create lives that did so, in their own little way, to be supported in one's material needs while pursuing virtue, truth, and beauty, and, above all, to pass that privilege on to their own children."

Now, despite my initial good feeling about the nuance in Graeber's interesting and lively essay, I realized that I had been sucked into an anthropological view of the relationship between culture and moral choice.  Intuitively, I react badly to the idea that I am not a moral free agent, regardless of my potty-training or academic pedigree, but, of course, it's entirely possible that I have this intuition because of my potty-training and academic pedigree.  But I also juxtapose Graeber's anthropological observations on the academy with two views that have circulated in the academic blogosphere recently (neither of which I necessarily endorse, but both of which now give me pause):  (a) Jeff Harrison's view over at MoneyLaw and elsewhere that "being a law professor is a privilege largely enjoyed by children of privilege who have developed a sense of entitlement," and (b) Kaimi Wenger's post at Concurring Opinions, but especially the comments to it, in which it seems to be common knowledge, as though it were something you checked off in the questionnaire for inclusion in the AALS directory, who on a faculty (at least at Harvard and Stanford) is a Republican, a Democrat, a liberal, a libertarian, or a conservative.

But now that I am a law professor (and I've even filled out the AALS questionnaire), I guess I'm part of this anthropological sample, and it has me just a little bit worried.  I'd be a poor (or at least unhappy) politician for the same reason that I was an unhappy litigator:  I wanted everybody to love me.  But I know I didn't come from the elite (unless you view me from the standpoint of an unrepentant anti-Semite, in which case I come by it honestly).  And while I don't see myself as being invited onto the Harvard or Stanford faculties any time soon, at least as a thought experiment, we can consider it, and the question is:  does somebody know better than I do whether I am a Republican, Democrat, liberal, libertarian or conservative?

March 31, 2007 in Hot Topics, Law & Society, Lawyers & Popular Culture, Lipshaw | Permalink | Comments (0) | TrackBack (0)

DC in Spring Right Now Is Sprouting Cherry Blossoms and Eighth Graders

Posted by Alan Childress

514076_cherry_tree_pathWashington, D.C. this very week features an explosion of beautiful Japanese cherry blossoms and an even more overwhelming explosion of 8th graders here on their school trips.  They're everywhere.  Their tourbuses create gridlock.  They are standing in front of the White House -- all on cellphones.  They climb on the WH fence not appreciating that two weeks ago the whole area shut down for four hours after one man tried to climb over it.  They stream in and out of 'The House Where Lincoln Logo_2Died' (next to a t-shirt shop).  They swarm the Pentagon City Mall, as if (for some) their homestate of Minnesota lacks a mall in America.  They pretend their dad is a stranger in front of their friends.  But they learn a ton of history and civics.  Me too, following one of them for just a little bit.  I already knew that D.C. has lots of fantastic sites and memorials, and free museums (subsidized in part by the $8 McDonald's meal perhaps).  The International Spy Museum is not free but is worth it.  Obviously the free Air and Space Museum is great, but did you know they have an even bigger facility--a show-hangar really--out by Dulles?

Img_1084 This week, I learned the name of the unknown soldier from Vietnam.  He is -- forensic DNA much later confirmed -- named Michael J. Blassie, USAF, and his story is fascinating.  The Tomb of the Unknowns in Arlington National Cemetery, in Virginia, lies just below Robert E. Lee's house (confiscated, D.C. tourguides say, for Img_1101 failing to pay $91 in taxes [not for leading an Army against the government?]), and is solemn and magnificent.  The changing of the guards procedure is intricate and awesome.  Here are my photos of four students from St. George's Episcopal School in New Orleans laying a wreath at the tomb in a ceremony following the changing of the guards.  They are Nia La Branche, Celeste Cahn, Steven Img_1108 Childress, and Gunner Moffatt, led by Sgt. Cook.  [A great group photo {View this photo} was also taken in the cemetery's amphitheatre just after the ceremony; it is not mine, but borrowed from school website.]  Click on any photo to enlarge.

The cemetery is amazing and just across the Potomac from the Lincoln Memorial.  I fear a headline, "Toll Brothers Eyeing Rolling Cemetery Site for New McMansions."

Beautiful ceremony.  Proud of you guys. 

March 31, 2007 in Blogging | Permalink | Comments (1) | TrackBack (0)

Florida Prohibits Ad's Promise To Rid Client of "That Vermin You Call a Spouse"

Posted by Alan Childress

In an unsurprising decision, a Florida Bar committee has screened out a submitted TV commercial where the attorney, Steve Miller, promises the above exterminating metaphor to clients on the cheap.  Carolyn Elefant here has the story (and links some ads) plus her interesting commentary Logo_headeras to why the rationale is a smokescreen:  "Here, the bar's conclusion that the bar promises a result is untrue. In the ad, Miller says that by signing up for his service 'you're on your way to getting rid of that vermin you call a spouse,' but he doesn't promise that he will succeed. That's not a guarantee of a result190741_27508033 in my view."  Her prescription:  "If Miller's ads are truly offensive -- and don't kid yourself, that's the only reason why the bar wants them eliminated -- then the market will decide their success."  She advises solos against such an ad but mainly because it draws awful "clients from hell."

444685_puppy_in_pearlsA prior decision Elefant links forbade using icons like pit bulls, snakes, and sharks for similar "deceptiveness" reasons. [Could any bar forbid her from using an animal icon, she noticeably does not ask, presumably after years of the same jokes.]  For better marketing in Florida, I suggest using not a pit bull but rather a 60-second ad featuring the attorney talking almost inaudibly in front of the non-stop yipping and floor-jumping of Ollie, my mother-in-law's tiny Yorky, who conveniently lives in West Palm.  All the director would have to do to guarantee a perfect performance is say Action.  Or exist.  I think prospective clients will get the message plus the lawyer and Ollie will inevitably star on YouTube. (Copyright 2007 Childress.  All rights reserved.  Childress also agent for Ollie.  Picture is not Ollie, but a larger prototype.) 

709945_shark2It is true, however, that the shark imagery is misleading if in fact Florida sharks are themselves now specifically targeting Florida lawyers.

Anyway, Virginia's Ben Glass (a blogger on legal marketing), in this comment after Carolyn's post, provides some other examples of the Florida Bar's targeting of "promising" ads which seem to guarantee even less than the vermin ad does.  And he recommends Rodney Smolla's new book (Smolla is now Dean at Richmond) on lawyer ads and the First Amendment.  Info on that book is below the fold.

Continue reading

March 31, 2007 in Blogging, Ethics, Law & Business | Permalink | Comments (0) | TrackBack (0)

A Large Cap(sicum) Company

Posted by Jeff Lipshaw

The New York Times business section this morning has a story on a local treasure, the McIlhenny Company, makers of Tabasco sauce (notice the clever way I have categorized this post, below).  According to the lead,Tabasco

AVERY ISLAND, La. - In April, board members and shareholders of the Mcllhenny Company plan to gather here for their annual meeting.  Unlike well-publicized events at big public companies this year, where activist shareholders often hope to create a stir, a private gathering is planned, and the agenda will probably not be debated.

So I was ready for a story of family corporate autocracy, hateful siblings, warring cousins, and Jarndyce-like litigation in the parish courts.  Was I disappointed or what?  They don't do anything wrong.

- All 145 shareholders are related, but they cede management control to two to four family members because they don't want the company to become "insular and resistant to change."

- The managers make sure decisions are transparent and issue financial statements every quarter to their shareholders.

- The factory on Avery Island was saved by inches during Hurricane Rita, and the company is now building a 17 foot levee.  [Editor's caution:  I am writing this early Saturday morning and Professor Houck is not here, so I cannot confirm whether the levee is actually a good thing or not.]

- The company maintains its core brand, but has diversified into mining rock salt, pumping oil, and operating a botanical garden.

- The company is a ferocious recycler and reuses "everything, from selling their used oak barrels [in the pepper mash is aged like whisky] to selling the seed mash to a company for use in candies."

Note to P. Caron:  This has very little to do with the legal profession, but I wanted to add some local flavor.

Additional Louisiana note:  It is now "crawfish season" in Louisiana.  That means that everywhere you goCrawfish_boil there are crawfish boils.  Last evening, the Tulane Law School Student Bar Association had its annual "Spring Fling" crawfish boil, and I admit, I came face to face with the crawfish and flinched.  It's not the crawfish meat itself, which I have eaten in etouffee and jambalaya.  Nor is it an objection to Cajun and Creole cuisine.  I am now a red beans and rice addict.  It's that the little creatures, which look like miniature lobsters, are boiled and literally shoveled onto your plate en masse, and you pull them apart.  Somehow it all didn't sit right.  But I'm willing to let Professor Childress step in with a responsible opposing view.

March 31, 2007 in Hot Topics | Permalink | Comments (5) | TrackBack (0)

Friday, March 30, 2007

Buhai on Conflicts and Emotion in Representing Family Members

Posted by Alan Childress
Sande Buhai (Loy.-L.A.), right, has posted to SSRN her article:  "Emotional Conflicts: Impaired Dispassionate Representation of Family Members."  The article "proposes specific amendatory languageBuhai2_2 to the Model Rules themselves."  Here is the first part of the abstract, with the detailed breakdown of its five parts beneath the fold:

Lawyers have a duty to provide objective and unbiased representation. Although emotional conflicts can interfere with proper discharge of this duty, sometimes quite seriously, neither the Model Rules of Professional Conduct nor scholarly writings on legal ethics have ever systematically addressed the issues they raise. This article proposes, I believe for the first time, that lawyers should be required to take potential emotional conflicts into account both before undertaking to represent and while representing any person with whom they have family or emotional ties, whether spouse, lover, cousin, sibling, or parent.

Continue reading

March 30, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession, Clients, Privilege | Permalink | Comments (0) | TrackBack (0)

Update on Law Students Volunteering in Post-Katrina Gulf Coast

Excellent story this week in Tulane University's on-line magazine The New Wave, on volunteerism andNewwave professional responsibility in action.  The story is called Law Students Storm New Orleans With Legal Aid.  Lots of different legal aid and lobbying organizations, in addition to the Student Hurricane Network we noted here and here, are discussed.  (We noted here the recent but reversible threat to out-of-state volunteerism by one judge's actions.) 

Students and lawyers from all over the USA have spent spring break and other times helping out the legal needs of Louisiana and Mississippi clients.  The SHN website alone tallies over 1000 volunteers in the last two months, and provides great links to 8 schools' blogs on their experiences, including USC, Indiana-Bloomington, Brooklyn, UW, and Cardozo.  Like this one from IU.  Keep up the good work!  [Alan Childress]

March 30, 2007 in Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Koo on Technology and the Skills Gap for Lawyers: Berkman Center Findings

Posted by Alan Childress
Gene Koo (Fellow, Harvard Law's Berkman Center) has posted to SSRN, "New Skills, New Learning: Legal Education and the Promise of New Technology." Already it has many downloads.  Here is his abstract:

A large majority of lawyers perceive critical gaps between what they are taught in law schools and the skills they need in the workplace, and appropriate technologies are not being used to help close this gap. This was the core conclusion of a new study by the Berkman Center for Internet & Society at Harvard Law School, in partnership with LexisNexis, which found: Biogene
• More than 75 percent of lawyers surveyed said they lacked critical practice skills after completing their law school education.
• Today's workplace demands skills that the traditional law school curriculum does not cover.
◦ Many attorneys work in complex teams distributed across multiple offices: nearly 80 percent of lawyers surveyed belong to one or more work teams, with 19 percent participating in more than five teams. Yet only 12 percent of law students report working in groups on class projects.
◦ Smaller firms can stay competitive with larger firms through more nimble deployment of technology tools and by exploiting the exploding amount of data openly available on the Web. Attorneys at these firms need tech-related skills to realize these opportunities.
• Legal educators seriously under-utilize new technologies, even in those settings, such as clinical legal education, that are the most practice-oriented.
Research also suggests a breakdown in post-school workplace training, with smaller firms particularly unable to afford formal professional development.
• Neither law schools nor most workplaces provide new attorneys with a structured transition between school and practice. Only 36 percent of lawyers surveyed report a dedicated training experience during their first year of employment.
• Clients are increasingly unwilling to pay for training of associates, e.g. prohibiting firms from billing for young attorneys' attendance at client-facing meetings. New lawyers' involvement in such meetings has long been an important apprenticeship activity.
Finally, advances in computing and networking offer potential solutions to shortcomings in skills training at law schools.
• Utilizing authentic practice technologies to support law school clinical programs exposes law students to the practical tools they need to succeed in future practice.
• Learning through computer simulation mirrors the technology-based foundation of most legal practice settings today and enables participants to experience non-linear decision making closest to real-world casework.

March 30, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession, Blogging, The Practice | Permalink | Comments (0) | TrackBack (0)

Another Good ABA Journal Story: Gonzales and Other Lawyers Eschew Email

Another interesting April 2007 ABA Journal story, Is Silence Golden?, explores the fact that AG Alberto697852_mail_sign_2 Gonzales does not email, along with many others in the administration including Condoleezza Rice.  The story examines why other lawyers and CEOs have similarly taken themselves out of that world, and quotes White Collar Crime Prof's own Peter Henning on some aspects.  No answer to the obvious question:  If you don't use email, how do you know that you have won a UK soccer lottery and have an opportunity to smuggle funds out of Nigeria?  Plus you sadly don't get those philosophical "Irreplaceable or Rickets" or "Ciali$ Med$" Re lines.  [Alan Childress]

March 30, 2007 in Hot Topics | Permalink | Comments (0) | TrackBack (0)

Wisconsin Considering Repealing or Extending Its Diploma Privilege?

277994_madison_wisconsin__3An interesting upcoming ABA Journal story on the current politics and history of the rule in Wisconsin that allows UW and Marquette grads to be admitted without a bar exam.  The story is: Wisconsin Bar Weighs a Degree of Change:  Status may end as last state to admit its law school grads without taking bar exam. Definitely an advantage for those schools and their students, but is it out of sync with today's standards and the national market?  A University of Chicago law grad a few miles away has to take their bar exam!  [Alan Childress]

March 30, 2007 in Teaching & Curriculum | Permalink | Comments (0) | TrackBack (1)

Hepburn and Simon on Women's Status & Stats Worldwide, Professional and Otherwise

Posted by Alan Childress
56405769New out in paperback, from Stephanie Hepburn (a Times-Picayune contributor and graduate of American U. Law) [left] and sociologist Rita James Simon (Amer. U--Public Affairs), is Women's Roles andBcover Statuses the World Over.  Its description is that it "stands alone in the unique contribution it makes to the field of women's rights. Based solely on statistics and empirical data as opposed to opinion, authors Stephanie Hepburn and Rita Simon have crafted an important contribution to the study of women in society by comparing women's position in society within 26 nations throughout the world."  It is part of a book series on global perspectives on social issues and related books coauthored by Simon on insanity defense, abortion, drug trafficking, immigration, and other issues "the world over."

March 30, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession, Comparative Professions, Law & Society | Permalink | Comments (0) | TrackBack (0)

Thursday, March 29, 2007

No Legal Career For Sanctioned Surgeon

The Supreme Court of Georgia denied admission to an applicant who had been, in a previous incarnation, a general surgeon in Vermont. The applicant had lost his Vermont medical license as a result of charges involving sex with a patient, unprofessional care of five patients, and evidence of unfitness in his dealings with patients, their families and nursing staff. There were news reports that he had disappeared from Vermont in the face of lawsuits and a suggestion of a lack of candor in the bar admission process.  (Mike Frisch)

March 29, 2007 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Why We Discipline

The D.C. Court of Appeals rejected its Board on Professional Responsibility's lenient recommendation for a public censure where an attorney had engaged in dishonesty while representing himself in settlement negotiations with an insurance company. The attorney sought lost income based on his hourly billing rate. The insurance company inquired of his firm and learned that he had suffered no lost income as a result of his injury. The lawyer then made false statements to his firm, which promptly discharged him. He repeated the falsehoods at the disciplinary hearing. The court rejected the claim that "dishonesty" is too vague a term for lawyers to understand. As to sanction, the court suspended the lawyer for 30 days, finding that the Board "undervalue[d] other opinions" that "the principal reason for discipline is to preserve the confidence of the public in the integrity and trustworthiness of lawyers in general." Funny how the entity charged with upholding the integrity of the legal profession in D.C. overlooked the reason it is supposed to exist.  (Mike Frisch)

March 29, 2007 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 28, 2007

Call for Involvement and Discussion on Graying of the Bar

David Giacalone, who previously posted at f/k/a this great post on the ethics of the demographic changes -- tidal wave -- just ahead with the bar (plus see ours here), since updated his post with a request for more discussion (and links).  David is asking for CLE and symposium involvement in placing this subject on the agenda nationwide, and for LAPs to consider this reality.  Also see his announcement below the fold.  [Alan Childress]

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March 28, 2007 in Blogging, Conferences & Symposia, Ethics | Permalink | Comments (1) | TrackBack (0)

Ventry on Ethics in Tax: Historical Impact of Reporting Rules

Posted by Alan Childress
Dennis Ventry, Jr. (American Univ.--Law) has posted to SSRN his article, "Vices and Virtues of an Objective Reporting Standard."  It also is in Tax Notes, vol. 12, at page 1085 (Sept. 2006).  Here is his Ventryabstract:

Changes to the taxpayer substantial understatement penalty lay at the heart of the protracted controversy over practice standards in the 1980s. Practitioners objected to Treasury Department efforts to align professional standards with reporting requirements for taxpayers. Proposed amendments to Circular 230, released in 1986, would have prohibited practitioners from advising or recommending a reporting position or preparing or signing a tax return unless they could determine that the section 6661 substantial understatement penalty would not apply. Practitioners recoiled. Prevailing ethical guidelines of the major professional organizations merely required tax practitioners to render advice in good faithIrs_logo_322 evidenced by a realistic possibility of success if litigated; prevailing guidelines did not require them to insure against potential tax liabilities. This article examines the love-hate relationship between the substantial understatement penalty and practitioners in the mid to late 1980s.

March 28, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)

Client Abuse

An ugly instance of lawyer abuse of a client recently resulted in a disbarment by the New Hampshire Supreme Court. The lawyer was retained to pursue a claim against the client's employer after she had been sexually assaulted by a patient at the facility where she was employed. After the case settled, the client did not receive her full share of the settlement proceeds. She hired new counsel. The lawyer, who had  misappropriated a large share of the proceeds, responded by falsely asserting that the underlying claim was a fraud. He was found to have made false statements to a tribunal that placed the client's case in jeopardy (the employer's ensuing attempt to set aside the settlement failed). The court disbarred the lawyer for the dishonesty/false statements violations and did not decide what sanction might otherwise have been appropriate for the mishandling of client funds. (Mike Frisch)

March 28, 2007 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 27, 2007

Suit Against Expert Witness Backfires

The Lawyers' Manual on Professional Conduct reports a decision of the Montana Supreme Court affirming an $11 million judgment against the law firm of Gibson Dunn & Crutcher. The plaintiff was the preeminent expert on the work of an artist who was his grandfather. The grandfather was a contemporary of C. M. Russell. After opining that a painting was the work of his grandfather rather than Russell, the firm threatened to file suit unless he signed a letter, drafted by the firm, retracting the opinion. Suit was filed, and thereafter dismissed, when the letter failed to produce the desired result. The expert then sued the firm for malicious prosecution and abuse of process.

The jury found for the plaintiff/expert and awarded both compensatory and punitive damages. On appeal, the court affirned the award, finding that the firm's conduct justified the substantial punitive damages. (Mike Frisch)

There appears to be a problem with the link to the Montana Supreme Court web site. The case is Seltzer v. Morton, No. 05-378 (Mar. 12, 2007)

March 27, 2007 in Law Firms | Permalink | Comments (0) | TrackBack (0)

Monday, March 26, 2007

High Profile Fee Dispute

It must be a rather extraordinary fee dispute to merit discussion on the editorial page of the New York Times. The issue arose in connection with legal fees charged in connection with damages paid by Swiss banks to Holocaust victims. (Mike Frisch)

March 26, 2007 in Hot Topics | Permalink | Comments (0) | TrackBack (0)