Wednesday, September 30, 2009

Lipshaw Creates Firestorm By Talking About Religion and Brian Leiter

Two subjects that, Miss Manners said, should never be the talk at a formal dinner.  Anyway, Jeff's SSRN piece analyzing Leiter's conception of religion has become "recommended reading" by Larry Solum on the Legal Theory Blog, and is number one with a bullet on the First Amendment Law Prof Blog

It has also caused some consternation on the Prawfsblawg blog because Brian Leiter does not like what Jeff says very much.  Although blogger Rick Garnett cut out the most strident comments by various people (none by Jeff, who is polite, in my opinion), it is still fun to read Professor Leiter's apparent position that Jeff is wrong with a capital F.  When he refers to Jeff as Professor Lipshaw (as in "Professor Lipshaw's incompetent caricature of my arguments in the SSRN essay"), you immediately think of Marshall McLuhan coming out from behind a theatre billboard telling Jeff, "You know nothing of my work.  How you got to be a professor in anything is beyond me."  [And read a real attempt to engage Jeff intellectually here by blogger Michael Young.]  Keep it up, Jeff.  At least he spelled your name right.  If law school were a situation comedy, you and Brian Leiter would be in-laws.

[Alan Childress]

September 30, 2009 in Blogging | Permalink | Comments (11) | TrackBack (0)

How FEMA Trailer Lawsuits Are Briefcases On "Deal Or No Deal"

Posted by Alan Childress

I assume that most lawyers, like me, find Deal Or No Deal unwatchable.  One of the many reasons is that contestants use a decisionmaking process akin to clients, rather than "thinking like lawyers."  Lawyers would never "keep going" the way most contestants do.  How do you turn down a sure $270,000 for a two-thirds chance to win $600,000 with a one-third chance to win $450?  When I found myself hoping they would win $450, I realized this was unhealthy for me, and possibly immoral, and certainly pathetic (beyond the fact of watching itself), and I quit watching, forever. 

Then a journalist, yesterday, told me that lawyers on both sides of the FEMA trailer lawsuits -- these trailers reek of formaldahyde, plaintiffs say, while defendants tout the biology preservation uses of the substance like those shiny frogs [not really] -- told HER that they plan to wait until five "bellweather" trials are done before talking global settlement.  I told her I doubted that, and recounted my theory that the legal profession plays Deal Or No Deal very differently from the rest of the world.  I think they will have enough information before then (especially since the plaintiff lost the first big one, last week in Louisiana) and are risk averse enough to see a way out fairly soon.  (In truth, both the journalist and the law professor had to ask around to recall the name of the stupid game show with the suitcases, but both of us could remember Let's Make a Deal, showing our age.)  Anyway, she had called me, I suspect, not because I have legal profession qua game show insight, but because I got myself duly quoted last week on the Chinese drywall cases (these walls smell like rotten eggs, instead of formaldahyde, but both show how unlucky we local Louisianans are).  And media citations beget more media citations, you know, so fwiw here is the story on the trailer cases, from Marilyn Odendahl of The Elkhart Truth, near the Indiana factory of defendant Gulf Stream.  (Turns out Ms. Odendahl graduated from Ball State, where my mom [happy birthday!] and David Letterman did too.)

Clearly my memory is not what it used to be if I cannot name Deal Or No Deal, given that there was a period of time when it was the only show on television.  Further proof of the memory thing is the fact that a student emailed me today to ask whether we have Evidence tomorrow, because there is no October 1 on the syllabus.  (Damn those law profs who come out with new editions so often, what with their new pagination and all!)  My students must think I am celebrating Oktoberfest Eve or something.  (I do recall that last year, Macy's in Plano, Texas put up its Christmas ornaments on October 1, so maybe that is why I skipped the date.) Yes, Virginia, there is an October 1, and if you happen to be an Evidence student of mine reading this, please show up tomorrow.

Unrelated, I heard somewhere that the state color of West Virginia is primer.

September 30, 2009 in Games | Permalink | Comments (0) | TrackBack (0)

Timely But Dismissed

The New York Appellate Division for the First Judicial Department affirmed the dismissal of a number of related claims of legal malpractice but disagreed with the trial court's determination that the claims against firms and individual attorneys were time-barred:

Although we affirm Supreme Court's order, we do not do so on the ground that plaintiffs' legal malpractice claim against Pillsbury is time-barred. A legal malpractice action must be commenced within three years of accrual (CPLR 214[6], 203[a]). Accrual occurs when the malpractice is committed (Shumsky v Eisenstein, 96 NY2d 164, 166 [2001]). In this case, plaintiffs' malpractice claim against Pillsbury accrued nearly six years before this action was commenced. Under the doctrine of continuous representation, however, the statute of limitations is tolled while representation on the same matter in which the malpractice is alleged is ongoing (see Glamm v Allen, 57 NY2d 87 [1982]). The doctrine is rooted in recognition that a client cannot be expected to jeopardize a pending case or relationship with an attorney during the period that the attorney continues to handle the case (see id. at 94). In rendering its decision, Supreme Court ruled that the statute of limitations was not tolled as to Pillsbury because it ceased representing plaintiff in January 2002 when Caruso left the firm and took plaintiffs' case with him. In HNH Intl., Ltd. v Pryor Cashman Sherman & Flynn LLP (63 AD3d 534 [2009]), this Court has since held that the statute was tolled as to a malpractice claim against a law firm because the attorneys who handled the case continued to represent the plaintiffs in the same matter, albeit at different law firms. Guided by this precedent, we now hold that the statute of limitations was tolled by the doctrine of continuous representation during the time that Caruso represented plaintiffs in the underlying matter while he was a partner at Chadbourne and Bracewell.

Sound policy considerations also support the tolling of the statute of limitations with respect to the legal malpractice claim against Pillsbury. Any suit brought by plaintiffs against Pillsbury would have been based upon Caruso's acts of malpractice. Caruso would have thereby been exposed to Pillsbury's potential claims for contribution or indemnification. As noted by the Court of Appeals in Glamm, a person cannot be expected to jeopardize a relationship with the attorney handling his or her case during the period that the attorney continues to represent him (57 NY2d at 94). An attorney-client relationship would certainly be jeopardized by a client's allegation that his or her attorney committed malpractice while representing the client. Beal Bank, SSB v Arter & Hadden, LLP (42 Cal 4th 503, 167 P3d 666 [2007]), a case defendants cite, is distinguishable because it involves the interpretation of a California statute that codifies the continuous representation doctrine. New York does not have a similar statute.

(Mike Frisch)

September 30, 2009 in Clients | Permalink | Comments (0) | TrackBack (0)

Commingling Roles Draws Suspension

The Oklahoma Supreme Court has imposed a one-year suspension of an attorney in connection with his misuse of funds in a spendthrift trust that the attorney set up. The key legal conclusion:

 Vis-a-vis the Kulp Trust respondent acted in a dual capacity. He performed legal services by advising the settlor and drafting the trust document in which he was named a co-trustee. He also served in a fiduciary capacity qua co-trustee of the Kulp Trust. A lawyer who commingles the role of a lawyer with that of a fiduciary is not immune to and cannot escape disciplinary action for a breach of fiduciary duty occurring dehors the practice of law. He or she will be held both to the ethical standards for lawyers as well as to those governing fiduciaries.

The court rejected a proposed six-month suspension. (Mike Frisch)

September 30, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Legal Tsunami

An Illinois Hearing Board has recommended that an attorney be disbarred for conduct described in these findings:

The evidence, along with the admitted allegations, established that during the period from May 2003 through July 2005, Respondent was the principal and managing member of Tsunami Capital, LLC ("Tsunami Capital"), which was registered with the CFTC as a commodity pool operator and commodity trading advisor. In a commodity pool, many individuals combine their money and trade futures contracts as a single entity. From October 2002 to September 2006 Respondent, through Tsunami Capital, opened and maintained various commodity futures accounts, two of which were structured as Tsunami Lakeshore Integrated Fund ("Tsunami Lakeshore").

In June 2003, Respondent opened one of the Tsunami Lakeshore accounts and began trading with $287,000, which had been pooled and deposited into that account. Respondent, through Tsunami Capital, was the commodity pool operator for the Tsunami Lakeshore account, and the sole authorized signatory on this account. All of the account statements for the Tsunami Lakeshore account were sent to Respondent's office at 455 N. Cityfront Plaza, in Chicago.

After June 2003 Respondent managed trades made in the Tsunami Lakeshore account. In 2004 the account had a deficit of $4,425 in its trading and in January 2005, the account was closed. Respondent knew or should have known the financial condition of the Tsunami Lakeshore account during the period from June 2003 through January 2005, as he was the sole authorized signatory on the account and the account statements for Tsunami Lakeshore were sent to him.

Sometime after June 2003, Respondent created, or directed the creation of, a document titled "Confidential Private Placement Memorandum Tsunami Lakeshore Integrated Fund, LLC" ("Memorandum"), which identified Tsunami Capital as Tsunami Lakeshore's managing member and commodity pool operator and Respondent as the principal of Tsunami Capital. Respondent created, or caused the Memorandum to be created, to either solicit potential investors and/or to provide information to investors interested in Tsunami Lakeshore.

Sometime after June 2003, Respondent created, or directed the creation of, a profit and loss spreadsheet ("profitability spreadsheet") on Tsunami Capital letterhead for the Tsunami Lakeshore account, which purported to show that Tsunami Lakeshore's trading had been profitable in all but two months in 2003 and 2004, with rates of return as high as 26.85% in April 2003 and 22.21% in May 2003. The purported statements were false because the Tsunami Lakeshore account was not active in April or May 2003, and it had a deficit of $4,425 in its trading in 2004. Respondent created or caused the profitability spreadsheet to be created, to either solicit potential investors and/or to provide information to investors interested in Tsunami Lakeshore.

During the period between December 2004 and January 2005, Respondent engaged in discussions with a potential investor, Brett Simons, regarding investment in Tsunami Lakeshore.

Respondent told Simons that Tsunami Lakeshore was a commodity pool trading futures with $6 million invested, with a minimum investment of $50,000. Respondent provided Simons with a copy of the Memorandum and the profitability spreadsheet. When Respondent told Simons that $6 million had been invested in Tsunami Lakeshore, Respondent knew or should have known that that statement was false, because in 2004 Tsunami Lakeshore had a deficit of $4,425. Respondent knew or should have known that the profitability spreadsheet falsely represented the activity and profitability of Tsunami Lakeshore in April and May 2003, because the Tsunami Lakeshore account was not active in April or May 2003.

In January 2005 Simons invested $50,000 with Tsunami Capital for the purpose of trading in the Tsunami Lakeshore account. In March 2005 Respondent told Simons that his $50,000 investment was profitable and, based on those representations, Simons invested an additional $100,000 with Tsunami Capital for the purposes of trading in the Tsunami Lakeshore account. Respondent's representations to Simons that his $50,000 investment was profitable was false and known by Respondent to be false because the Tsunami Lakeshore account had a deficit of $4,425 in 2004, and the account had been closed since January 2005.

Sometime after March 2005, Respondent created, or directed the creation of, an account statement for Tsunami Lakeshore, on Tsunami Capital letterhead, which purported to show a 17% profit in the Tsunami Lakeshore account. The purported statement was false because the Tsunami Lakeshore account had been closed since January 2005. In April 2005, Respondent gave Simons a copy of the account statement. Respondent knew the statement he tendered to Simons in April 2005 showing a 17% profit in the Tsunami Lakeshore account was a false statement, because the Tsunami Lakeshore account had a deficit of $4,425 in 2004, and the account had been closed since January 2005.

In April 2005, Respondent made oral representations to potential investors Jay Deutsch and Mike Budicak to the effect that Tsunami Lakeshore had been profitable. As a result of Respondent's representations, Deutsch invested $50,000 in April 2005, and Budicak invested $100,000 in early 2005. Respondent knew that his representations to Deutsch and to Budicak were false since the Tsunami Lakeshore account had a deficit of $4,425 in 2004, and the account had been closed since January 2005.

Sometime after April 2005, Respondent created, or caused to be created, account statements for Tsunami Lakeshore which purported to show that Budicak had profited $11,366 by the end of June 2005. Respondent knew or should have known that the account statements he sent to Budicak were false since the Tsunami Lakeshore account had a deficit of $4,425 in 2004, and the account had been closed since January 2005.

In or about December 2005, Respondent made oral representations to potential investor Frank Carbonara to the effect that Tsunami Lakeshore had been profitable. As a result of Respondent's representations, Carbonara invested approximately $92,000 from his Individual Retirement Account. Respondent knew that his representations to Carbonara were false since the Tsunami Lakeshore account had a deficit of $4,425 in 2004, and the account had been closed since January 2005.

Sometime after December 2005, Respondent created, or caused to be created, account statements for Tsunami Lakeshore which purported to show that Carbonara had profited $58,000 by the end of March 2007. Respondent knew or should have known that all of the account statements he sent to Carbonara were false since the Tsunami Lakeshore account had a deficit of $4,425 in 2004, and the account had been closed since January 2005.

In late 2005, Respondent made oral representations to potential investor Peter Tamuzian that Tsunami Lakeshore had been profitable. In or about February 2006, as a result of Respondent's representations, Tamuzian invested $60,000 from his employee retirement savings account. Respondent knew that his representations to Tamuzian were false since the Tsunami Lakeshore account had been closed since January 2005. (Adm. Ex. 4).

Sometime after February 2006, Respondent created, or caused to be created, account statements for Tsunami Lakeshore which purported to show that Tamuzian's investment had earned 7.83% for March 2006. Respondent knew or should have known that the account statements he provided to Tamuzian were false since the Tsunami Lakeshore account had been closed since January 2005. In May 2006, based on the false statements provided to him by Respondent, Tamuzian invested an additional $40,000 to Respondent to invest in the Tsunami Lakeshore account.

From at least April 2002 to at least April 2007, Respondent, by making false oral representations about the profitability of Tsunami Lakeshore and by creating false account statements that reflected profitable track records, solicited and accepted $16,312,100 from 108 individuals for the purpose of trading financial futures, and used those funds for his own personal purposes. (Adm. Ex. 3).

The attorney had sought a last-minute continuance that the hearing board denied. He also claimed a Fifth Amendment privilege and did not testify at the hearing. (Mike Frisch)

September 30, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 29, 2009

Lend to Family...Really?: A Critique of Some Weird Financial Advice and an Aristotelian Lesson

Posted by Jeff Lipshaw

Somebody had ripped my gym's Time, the one with Glenn Beck on the cover, to shreds, so I was reduced to reading the October 2009 edition of Money or this month's edition of Club Management.  I went with the Money, and read an article (pp. 25-27) that made me wonder what kind of financial planners and economists they are hiring over there.  Also, since I've been giving financial advice in the blogosphere anyway, why stop now?

The article says that lending to relatives could be a sweet deal.  Son can only get a 9% interest on a $100,000 home equity loan (for you finance rookies, that's one secured by a second mortgage on your house).  Dad has some money just sitting there earning 1% or 2% in a money market account or savings account.  So he lends $100,000 to Son at 6% and everybody is happy.

Wait a minute.  Now, in fairness, the author lists several cautions, but misses the most important ones.  I often criticize welfare economics consequentialism that goes to one extreme in assuming that every perception or value or duty held by an individual is ultimately a matter of utility (read some of the early Posner on rational actor sex and love), even if the measure is somewhat difficult.  That is, in that view, people don't engage in charity out of altruism; they do it because they get some kind of material, psychic, or other benefit from it.  This odd financial advice from Money (of all people!) goes to the other extreme, and fails to put ANY cost into the equation for the effect of love, harmony, conflict avoidance, divorce, mental anguish, public embarrassment, or the like when you lend a lot of money to a relative, and it's not getting paid back.


For example, nowhere does it discuss getting security for the loan.  The bank was willing to lend at 9% AND TOSS SONNY OUT OF HIS HOUSE IF HE DIDN'T REPAY!  Dad is lending at 6% on an unsecured basis?  Or even if he takes a second mortgage, is he really going to foreclose and evict his grandkids?  And we haven't done anything yet to put a cost on the tension you can cut with a ham carving knife (unless it's Honey Baked Spiral Sliced) at Christmas or the matzoh kugel ladle at Passover when Son and the spouse and kids went to Disneyworld the week before and said, "oh, we'll pay you at the end of the summer."

The point is that there are costs that are hard to measure, and so Dad's real cost here isn't $100,000 and his real return isn't 6%.  It's something a lot more than $100,000, and that reduces his effective yield on the money substantially.  It's NOT a sweet economic deal for Dad unless none of that peace, love, and family harmony stuff means anything to him.  I say this as a child who borrowed from parents, and as a parent who stands prepared to help out his children:  if you think of that loan as anything other than a contingent gift, you are smoking the drapes.

You know what?  I don't think the truth about whether those intangible can be reduced to money lies at either extreme - it's probably somewhere in the middle.  Aristotle* would be proud of me, I think.

* That's Larry Solum's Aristotle, not Larry Solum.

September 29, 2009 in Law & Business, Lipshaw, Science | Permalink | Comments (1) | TrackBack (0)

Justice As Character Witness

From the online edition of the Detroit News:

A Michigan Supreme Court justice may be called as a defense witness on behalf of a retired Wayne County judge accused along with an assistant prosecutor and two police officers of allowing lies during a drug trial.

Justice Maura Corrigan's agreement to act as a character witness on behalf of former Wayne County Circuit Judge Mary Waterstone was revealed after Corrigan abstained from issuing an opinion in the drug case at the heart of felony charges against Waterstone; Karen Plants, the former head of the Wayne County prosecutor's drug unit; and Inkster Police Sgt. Scott Rechtzigel and Officer Robert McArthur.

Because of Corrigan's abstention, the High Court deadlocked in a rare 3-3 split announced Friday that rejected an appeal by Alexander Aceval. The Inkster bar owner was imprisoned in 2006 after two trials in which the conduct of local legal authorities has been described in a state Court of Appeals review as "reprehensible."

aterstone was charged in March with felony misconduct stemming from Aceval's 2005 trial. It's alleged Waterstone let the jury hear false testimony. The charge carries a possible five-year sentence.

Waterstone declared a hung jury in the first trial, and she testified as a witness at Aceval's second trial, overseen by a different judge. Waterstone has claimed she allowed lies to cover the identity of a police informant because she feared for the man's life. The informant led police to arrest Aceval in possession of a large shipment of high quality cocaine.

Plants, Rechtzigel and McArthur have been charged with obstruction of justice for allegedly misstating facts and allowing the informant to lie. Their charges are punishable by up to life in prison.

Plants retired after being charged. The officers remain on duty. Investigations of Plants and Wayne County Prosecutor Kym Worthy's involvement in the incident are pending before the state's Attorney Grievance Commission.

Corrigan's connection with the case was explained in a single sentence attached to Friday's opinion: "I am not participating because I may be called as a witness in a related case."

Contacted at her home by The News on Sunday, Corrigan said, "I was asked to be a character witness, and I agreed."

Michigan Attorney General Mike Cox is handling the case because Worthy stepped aside, saying she is too close to the defendants. Cox spokesman John Sellek said Sunday his office was unaware of Corrigan's status as a possible witness.

Aceval's lawyer, David L. Moffitt, complained the deadlock means the conviction and what he described as a "conspiracy" won't be reviewed by the state's highest court.

"These people are still reaching out to hold on to their power and have now enmeshed a Supreme Court justice," Moffitt said.

Waterstone has appealed Cox's authority to prosecute her, alleging a conflict because lawyers from the Attorney General's Office defended her against a complaint based on the same incident to the state's Judicial Tenure Commission.

The attorney general contends there isn't a conflict because the lawyers assigned to Waterstone's criminal prosecution work in a separate office from those who were involved in her professional misconduct complaint.

Wayne County Circuit Judge Daniel Hathaway planned to issue an opinion today on whether Cox should be barred from prosecuting her. If Hathaway rules against Cox, a special prosecutor will be appointed.

The issues must be resolved before a 36th District Court judge can hold a preliminary examination to determine if there is enough evidence to order the defendants to stand trial.

(Mike Frisch)

September 29, 2009 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Hot Air Leads To Proposed Disbarment

The Louisiana Attorney Disciplinary Board has recommended disbarment of an attorney who was retained to resolve a tax matter. The client sold balloons at New York county fairs and was charged with failure to pay state taxes. The attorney failed to take action and misrepresented his lack of effort to the client. When asked to produce a fee accounting, the attorney submitted a bill for over $17,000. The board found his explanation that he had retained the records for two years after Hurricane Katrina, used these records to create his accounting and then destroyed the documents to be "unconvincing and inconceivable."

As to sanction:

The facts of this case are simple. First, Respondent made no attempt to pay off the tax debt, contrary to the desire [of] his client and his own representations. Second, Respondent claims to have earned the substantial fee, despite the lack of any supporting evidence. Third, Respondent has not refunded any portion of this fee to his client. This conduct has caused significant harm to [the client]-- his tax debt remains outstanding despite the fact that he expended an amount sufficient to pay the debt.

Is this what they mean by balloon payments? (Mike Frisch)

September 29, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

One Final Hurdle

The Georgia Supreme Court held yesterday  that fitness for readmission was established of an attorney who had voluntarily surrendered his license in 1989. He had pled guilty to charges of possession of cocaine with intent to distribute. He was pardoned in 1995 with all civil rights restored except with respect to firearms.

The court cited the following in support of its conclusion:

...he has become increasingly involved in a religious community, engaging in intensive Talmudic and Bible study. [He] performs volunteer work with a religious organization assisting Jewish inmates, attends synagogue regularly, performs community service on civic committees in lakewood township in New Jersey.

He must take and pass the Georgia bar exam and achieve a scaled score of 75 on the MPRE to complete the reinstatement process. (Mike Frisch)

September 29, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, September 28, 2009

Ohio Supreme Court Proposes Rule Changes For Felon-Applicants

From the web page of the Ohio Supreme Court:

The Supreme Court of Ohio will accept public comment until Oct. 21 on a proposed rule change to expand mandatory Supreme Court review of the character, fitness and moral qualifications of applicants seeking to be admitted to the practice of law to anyone convicted of a first- or second-degree felony. The rule currently requires mandatory review of applicants convicted of aggravated murder, murder, attempted murder or rape.

In addition, the proposed amendments would allow the Board of Commissioners on Character & Fitness more discretion in reviewing and approving the character, fitness and moral qualifications of applicants convicted of other felonies.

View the text of the proposed rule. Comments on the amendments should be submitted in writing to: Lee Ann Ward, Director of Bar Admissions, Supreme Court of Ohio, 65 S. Front St., 5th Floor, Columbus, Ohio 43215 or

(Mike Frisch)

September 28, 2009 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Electronic Filing Policy Violation Draws Reprimand

A Michigan attorney was reprimanded for a Rule 1.1(b) violation (inadequate preparation under the circumstances). According to the order of the Attorney Discipline Board, he had "failed to follow the federal court's electronic filing policy when he submitted a document the client had not actually signed." The attorney had not contested the bar's charges. (Mike Frisch)

September 28, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Suspension Imposed

The Delaware Supreme Court rejected a public reprimand as proposed by its Board on Professional Responsibility and imposed a suspension of three months followed by probation for one year. The court concluded that the misconduct, which involved concurrent conflicts of interest in loan transactions between clients and failure to make required disclosures, merited an actual suspension from practice. (Mike Frisch)

September 28, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Second Bite Allowed

In another interesting decision from Georgia involving reciprocal discipline, the Supreme Court dismissed as unproven a matter in which the attorney had entered a conditional plea to a public reprimand in Florida. The attorney had entered the conditional plea after denying charges that he had backdated two letters in 1998. He produced testimony under oath from his legal secretary as well as expert testimony.

I have not previously seen a case where an admission for sanction purposes was disregarded in a reciprocal case. Georgia lawyers take note of the benefits of an Alford plea in bar discipline matters outside of the Peach State. (Mike Frisch)

September 28, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Sunday, September 27, 2009

Lipshaw on Leiter on Religion, and a Little More

Posted by Jeff Lipshaw


I suppose it's appropriate to conclude the Ten Days of Awe of the Jewish calendar by tying up, on the eve of Yom Kippur, a loose end I started to unravel when I was sitting here at my computer instead of participating in ritual observance on Rosh Hashanah.  As I noted, "what I find difficult about religious ritual, which is the reification of the sense of awe, wonder, and mystery of life, being, and consciousness into a set of rules.  (Hence, my appreciation instead for the music.)  That's the tension I described three years ago, between kevah - fixed prayer - and kavanah - inspiration."  I have a lot of regard for what Martha Nussbaum described as the source of the religious (and all conscience-related) impulse:  "the faculty in human beings in which they search for life's ultimate meaning."  I'm just not crazy about what my fellow humans generally do to act on that impulse.  (I also have the same kind of naive idealism about academia as a place of pure exchange of ideas, with much the same result.  But that's not new.  I had a kind of naive idealism about fiduciary obligations when I was a corporate officer and general counsel.  My conclusion is nobody is more or less insulated from human nature in the actual practice of religion, scholarship, or business.)

Some time over the last ten days, I came across Brian Leiter's published essay on the constitutional tolerance of religion by way of his more recent draft on whether religion is even entitled to moral respect.  (I agree with him that, as a matter of law, the appropriate standard is tolerance.  I also agreed not to quote or cite the draft, other than this minimal reference to its context, and with the clear indication it is a draft.  It is available publicly available on SSRN, albeit with the "don't quote or cite" request.)  The arguments depend on his already completed conceptual construct of religion with which I take issue, and I've posted an essay to that effect on SSRN.  The title is Can There Be a Religion of Reasons?  A Response to Leiter's Circular Conception of Religion, and this is the abstract:

This is a comment on a definition of religion recently proffered by Brian Leiter in support of different conclusions we ought to draw with respect to religion. His analysis is ultimately circular: the problem with religion is that it is not science. Exposing the circularity requires identifying the trick, which is that he employs an appeal to common sense to distinguish religion and science. Nevertheless, the very belief in common sense is the same as the religion Leiter attacks: it is categorical and insulated from further reasons. My argument in response has three major themes. (1) The argument based on receptiveness to reasons and evidence itself arbitrarily picks and chooses reasons and evidence. (2) It is possible to posit a religion whose categorical demands on action and requirements of foundational bedrock are minimal. (3) Religion uses reason (in the sense of concepts apart from evidence) to grapple with the source of our bedrock beliefs. It differs from other such grappling only in degree and not kind of thought; once we accept the role of concept (or reason) in such work, religious or secular, we necessarily must accord bedrock status (or categoricity) to at least one concept. Finally, I suggest that adoption of Leiter's definition has a troubling implication as to our respect for personhood.

By the way, if you are curious what to say to a Jewish person on Yom Kippur, since "happy Yom Kippur" is something of a contradiction, say "g'mar tov" which is short for the full Hebrew phrase that means "may you be sealed well." The mythology is that we are inscribed in the Book of Life for the coming year on Rosh Hashanah, and the inscription is sealed on Yom Kippur.  The actual prayer is called the Unetaneh Tokef, and it is the inspiration of Leonard Cohen's (above left) "Who By Fire."  Consistent with the kind of grappling with which I credit the religious impulse in the essay, I interpret this as "Recognize there is a distinction between what is and what ought to be, and we can't always make them match.  Let's do the best we can even when the world throws obstacles in our way."

G'mar Tov.  (UPDATE:  A good friend reminds me that a less highfalutin' greeting or wish is "fast fast" or "easy fast."  Since that rarely applies to me, I forgot!)

September 27, 2009 in Abstracts Highlights - Academic Articles on the Legal Profession, Ethics, Law & Society, Lawyers & Popular Culture, Lipshaw, Religion | Permalink | Comments (0) | TrackBack (1)

Friday, September 25, 2009

No Forwarding Address

The Louisiana Supreme Court disbarred an attorney who had "engaged in a bond trading program wherein investment funds were to be maintained in an offshore account and used as collateral by foreign investors engaged in day trading." The attorney had been sued by his investors, who were able to obtain multi-million dollar worthless judgments. The bar complaint came from an investor who received a $150,000 check from the attorney's trust account that the attorney knew had been written with insufficient funds. (Mike Frisch)

September 25, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Permanent Disbarment For Fen-Phen Conviction

The Mississippi Supreme Court has permanently disbarred an attorney convicted of conspiracy, mail fraud and wire fraud. The attorney had been the head of his law firm's mass torts section. He had been involved in fee-splitting and referral-fee arrangements to recruit Fen-Phen clients. His firm had submitted over 80 false claims. The court did not take final action until all appeals of the conviction were concluded. (Mike Frisch)

September 25, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, September 24, 2009

No Reinstatement For Operation Greylord Defendant

The IIlinois Review Board has agreed with a hearing panel and recommended that a petition for reinstatement be denied. The attorney was convicted in Operation Greylord and had served a six-year prison term. He had consented to disbarment. The Review Board quotes the Seventh Circuit as to the nature of the crimes:

[Petitioner], the defendant in this Greylord prosecution, was a crooked lawyer. He made a living bribing crooked judges. Often [he] played the broker's role, matching lawyers who did not know which judges would take money with judges who did not know which lawyers would pay it. For these services, he has been convicted of violating the Hobbs Act, 18 U.S.C. sec. 1951, and the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. secs. 1961-68; he was sentenced to 10 years in prison.

Factors that weighed against reinstatement:

After leaving prison, [he] worked for his brother-in-law at Goldsure investments. However, he lost his job there in 2002 and has not worked since. [He] became a certified personal trainer approximately 5 years ago but has not been able to find work in that field. About one year prior to his reinstatement hearing, [he] began volunteering for two hours per week at a retirement home. He also takes care of his elderly mother and his wife, who has multiple sclerosis.

To his credit, [he] has cared for his family and has not engaged in any improper conduct since he surrendered his license. On the other hand, his activities are not on par with those of...other petitioners who have been reinstated. He began volunteer work only after he filed his petition for reinstatement. Because of his unemployment for the past 7 years, he has not recently held a position of trust or responsibility within his community. The Hearing Board indicates, and we agree, that in order to demonstrate that he is rehabilitated, [he] must show that he has offset the harm he caused with good work of some sort, in essence repaying society for his misdeeds. He has not made such a showing here. Other petitioners have accomplished this task so we do not think it is too much to ask of [him], particularly in light of his extremely serious misconduct. Because [his] activities following disbarment do not yet rise to the level of establishing rehabilitation, we agree with the Hearing Board that this factor weighs against [him].

He also was found to have lacked candor and forthrightness in his testimony at the reinstatement hearing. (Mike Frisch)


September 24, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Convicted Lawyer Seeks New Trial Based On Internet Post

The web page of the Pennsylvania bar disciplinary system reports the interim suspension of an attorney based on a criminal conviction. The Chester County Daily Local News has some details about the underlying conviction and post-conviction contentions:

 The West Chester attorney who was sent to state prison last month for stealing $20,000 from the family of a drug dealer he was representing has refiled a motion for a new trial, contending again that at least one of the jurors hearing the case acted improperly in discussing the case on the Internet.

In court papers filed Monday, Mark Rassman, the attorney representing Daniel McCaughan, said that someone calling themselves "1 of 14 Jurors" had posted items to the Internet, suggesting a bias during the trial against McCaughan.

The motion also alleges that Judge Howard F. Riley, who oversaw the trial and sentenced McCaughan to two to four years in prison, had told the panel after their verdict he was "pleased" with the outcome of the case, and said he would be "throwing the book" at McCaughan.

In March, Rassman had filed a similar motion after McCaughan was found guilty by a jury of theft and money laundering charges. Riley denied the motion for a new trial, saying that it was premature because McCaughan had as of then not been sentenced.

Riley has scheduled a hearing on the motion for June 26.

McCaughan, 48, known for his flamboyant American flag ties and lapel pins and fanciful, colorful stories about his military service, was found guilty Feb. 11 after a weeklong trial by a jury on charges of three counts of theft and one count of dealing in proceeds of an unlawful activity, a first-degree felony money-laundering charge. The jury took 90 minutes to reach its verdict.

McCaughan, whom the prosecutor in the case called "the in-house counsel for a drug cartel," took cash totaling more than $20,000 from the mother of a drug dealer who had been arrested in June 2004. He said he would keep the money for the man, Christopher Stansberry, in safe keeping, so that authorities could not seize it as part of their case against him.

But when Stansberry's mother asked McCaughan to return the money more than two years later, he no longer had it. He said he had given it to a drug dealer named Omar Vasquez, whom he said he worked for.

McCaughan was convicted of money laundering because the prosecution, led by Deputy District Attorney Stephen Kelly, was able to show that McCaughan knew the cash came from illegal drug proceeds.

In his motion, Rassman said, "at least one juror may have ignored (Riley's) instruction not to utilize any outside source of information." He said McCaughan believed that a juror, or someone purporting to be a juror "as accessing the Internet and possibly 'googgling' (sic) Defendant during the course of the trial."

Rassman said that McCaughan had retrieved several messages posted on the Web site about the case, sent by a person calling themselves "1 of 14 Jurors."

In his motion, Rassman said the anonymous poster wrote the following:

"Judge Riley was very PLEASED with the outcome of the Jury. He will be throwing the book at Dan. The community of Lawyers in West Chester are discussed (sic) with Dan's actions and that he has portrayed them in such a negative light. Judge Riley said he will make sure that Dan is disbarred forever, so he can never practice law again in the United States."

"The comments, if made by a juror, are in fact true, (McCaughan) has been deprived of his constitutional right to a trial by a jury of impartial jurors. If the comments are true, (McCaughan) is entitled to a new trial," Rassman wrote.

(Mike Frisch)

September 24, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

D.C. Flat Fee Decision

The District of Columbia Court of Appeals has held that a flat fee paid to a lawyer remains the property of the client until it is earned, unless the client gives informed consent that permits the lawyer to take the fee at an earlier time. The court's opinion has an extensive discussion of flat fees and cites to case from other jurisdictions that reach the same conclusion.

The case involved a client who agreed to pay a flat fee in two installments but discharged the attorney before the paid-for services were completed. The attorney did not promptly return the payment after discharge. He refunded the fee when the the client complained to Bar Counsel. The client then sought to withdraw the complaint but Bar Counsel nonetheless filed charges.

The Board on Professional Responsibility had found that there was consent to treat the flat fee as the lawyer's property. The court found that the consent finding was not supported by substantial record evidence.

The court found that the attorney had commingled the payment but declined to impose a suspension because there had been uncertainty regarding the proper handling of flat fees prior to today's decision:

The [escrow] rule's application to flat fees is not clear on its face and, as not only respondent but his expert testified, the understanding among lawyers with respondent's type of practice has been that flat fees belong to the lawyer upon receipt, and therefore need not be kept separately in a trust account. We are confident that the D.C. Bar Board of Governors, the Bar's relevant sections, and the Board and Bar Counsel will take steps to inform the Bar and provide attorneys with helpful guidance on how to conform their practice to the rule we announce in this opinion.

Such guidance will be necessary, as all the court appears to say as to when the attorney can treat the fee as earned is as follows: "Simply labeling a fee as something other than a flat fee or extreme 'front-loading' of payment milestones in the context of the anticipated length and complexity of the representation will not excuse the lawyer from safekeeping the client's funds until it can reasonably be said that [the fee has] been earned in light of the scope of the representation."

So when is a flat fee earned? Must the attorney keep the full amount in escrow  until the matter is concluded? Will this decision be the death of flat fees in the District of Columbia?

A public censure (as proposed by the board) was imposed in light of the attorney's cooperation and other mitigation. The attorney had a record of prior discipline.

One noteworthy aspect of the court's decision was its recognition of the severe impact of a suspension on a solo lawyer. This point had been emphasized by his lawyer Jake Stein, the dean of the District of Columbia Bar. (Mike Frisch)

September 24, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 23, 2009

No Joint & Several Liability In Louisiana May Haunt Victims of Chinese Drywall

Posted by Alan Childress

Not a legal ethics story, admittedly, but since you can't spell blogger without ego or bore, I am linking a story in The Times Picayune in which I am quoted on how tort reform will dehance plaintiffs' chances here in Louisiana in their efforts to collect damages for toxic drywall.  It is by Rebecca Mowbray and called "Tort reform prevents Chinese drywall victims in Louisiana from making a full recovery."

September 23, 2009 | Permalink | Comments (1) | TrackBack (0)