Sunday, January 31, 2010
Posted by Alan Childress
And send cease and desist letters to Mom & Pop tshirt shops who for years have been selling clothing asking that two-word question? Why, the NFL of course. And the timing seems to be now because the Saints are in the Superbowl -- no one in the Front Office (wherever the NFL is) seemed to care when the team was just losers.
Never mind that the Who Dat phrase was actually invented for other local teams like St. Augustine High School and later borrowed for the Saints by fans. And used in 1983 as associated with the Saints in a copyrighted recording, by players and Aaron Neville, who apparently are not getting any tshirt royalties out of all this (nor the Marx Brothers, who used the two words in a movie, borrowing from vaudeville). And that the "Saints" name as a football team was used by lots of local high schools, including my son's St. Martin's Episcopal School, long before the NFL ever thought to place an awful franchise in the city. Who stole from whom?
The NFL is targeting designs without the Saints or NFL logo or name on them -- just
anything associated with the Saints and that two-word phrase. (Espn image right, from an AP photo.) And in this specific case that other emblem is simply the fleur de lis.
The fleur de lis? THE FLEUR DE LIS? The NFL makes claim to the FLEUR DE LIS? That has been around as a symbol for New Orleans since, oh, like 1713??? Or for that matter the flags of Quebec, Nova Scotia, Louisville, Detroit, St. Louis, Baton Rouge, and Lafayette! And Bosnia. And a city in Finland called Liljendal (ironically named since our Governor Bobby Jindal is now being asked to sue the NFL over this lily, the official state symbol). And the Boy Scouts.
I hope that relatives of Jean-Baptiste Le Moyne, Sieur de Bienville send a cease and desist letter to the NFL. I just hate it when my neighbor borrows the antique family-heirloom lawnmower and then files an injunction to claim it was his all along.
A judge may not rent a room to a non-related person who is subject to community control, according to a recent opinion of the Florida Judicial Ethics Advisory Committee. The committee expressed the following concerns:
Discussion of the issue requires a basic description of “community control.” Community control means a form of intensive, supervised custody upon an offender in the community, including surveillance on weekends and holidays, administered by Department of Corrections probation officers with restricted caseloads...Community control is an individualized program in which the freedom of an offender is restricted within the community, home, or noninstitutional residential placement, and specific sanctions are imposed and enforced. Id. For an offender placed into community control, a sentencing court shall require intensive supervision and surveillance, which may include but is not limited to: (1) specified contact with the probation officer; (2) confinement to an agreed-upon residence during hours away from employment and public service activities; (3) mandatory public service; (4) supervision by the Department of Corrections by means of an electronic monitoring device or system; and (5) the standard conditions of probation...
If a judge rented a room in the judge’s home to a non-related individual who is on community control, we reasonably can foresee that the judge could become a witness to the individual’s conduct. The judge possibly would observe whether the individual is complying with, or violating, the terms of community control. The judge possibly would have contact with the probation officers supervising the individual’s community control. The judge also would have a financial interest in rent which may compete with the individual’s requirement to pay supervision fees and other monetary conditions.
As a result, the judge potentially could be placed in problematic situations:
• If a judge witnesses the individual violate community control, the judge “must not initiate the communication of information to a sentencing judge or a probation or corrections officer.” Canon 2B, Comment, Fla. Code Jud. Conduct. The judge may only provide such information to such persons in response to a formal request. Id.
• If probation officers seek information from the judge, the probation officers may feel influenced by the judge’s judicial office and the judge’s financial interest in rent in evaluating the information which the judge provides.
• If the state accuses the individual of violating community control, the individual may call the judge as a witness in defense against the alleged violation.
• If the judge witnessed the individual violating community control, the state may call the judge as a witness in the prosecution of the violation.
• Even though “[a] judge may . . . testify when properly summoned,” “a lawyer who regularly appears before the judge may be placed in the awkward position of cross-examining the judge.” Canon 2B, Comment, Fla. Code Jud. Conduct.
In all of these situations, the judge’s personal credibility and, indirectly, that of the judge’s judicial office, could be an issue. Thus, a judge who potentially could be placed in these situations by renting a room in the judge’s home to a non-related individual who is on community control likely would violate Canons 2A, 2B, 5A, and 5D(1)(a) of the Code of Judicial Conduct.
The committee opines that the result would be the same whether the judge sat in a civil or criminal assignment. (Mike Frisch)
Saturday, January 30, 2010
The Rhode Island Supreme Court granted the application of James Sokolove to register Sokolove Law LLC to practice law as a Rhode Island limited liability entity pursuant to rules governing admission to practice. The court noted that it had never before been confronted with an objection to such an application.
The objection to the petition came from several law firms, who had also filed bar complaints alleging that Sokolove's television and print advertisements violated Rhode Island ethics rules. The complaint was dismissed by a screening panel of the Disciplinary Board on a finding that the evidence "did not rise to the requisite clear and convincing standard." The objectors then filed an unauthorized practice complaint, which resulted in a finding of probable cause and an informal resolution.
Here, the court described Sokolove LLC as "a national law firm with a complex referral system that can refer clients to attorneys throughout the country." The firm practices in every jurisdiction except South Dakota and Rhode Island. The Rhode Island entity would have an office in the state staffed by a member of the Rhode Island Bar.
The court concludes that "[n]othing in the [licensing] rule requires that each member of the LLC must be licensed to practice law in Rhode Island." The court discussed concerns about fee-sharing and referrals, noting that attorneys must strictly adhere to the rules governing fees and that "we are confident that Disciplinary Counsel will pay close attention to these concerns." As to possible unauthorized practice, "[the court] note[s] that, although Sokolove LLC, may not fall within the traditional boundaries of the practice of law in Rhode Island, we are hopeful that, as represented, the LLC will operate in compliance with our rules." (Mike Frisch)
An attorney who was convicted of a single incident of impaired driving where no conditions regarding alcohol treatment were imposed may not be subject to professional sanction, according to a recent decision of the Michigan Attorney Discipline Board. The board rejected the public reprimand with conditions that had been imposed by a hearing panel, finding that there was insufficient evidence of an ongoing problem with alcohol to conclude that the isolated incident warranted sanction:
In some cases, the record evidence will clearly establish that a respondent has been unable or unwilling to address an alcohol problem that affects his or her ability to practice. In those situations, discipline and appropriate conditions are called for. This case, however, in no way resembles such situations. Even if the record indicates what could be deemed excessive alcohol consumption at certain points in respondent's life, we must also consider the evidence of respondent's voluntary cessation or reduction of alcohol use during most periods of her life, which include consistent employment in responsible positions, childbirth and child-rearing years, and graduation cum laude from law school while working. We cannot conclude that the discipline imposed below is necessary or appropriate in this case.
The board notes that the conviction establishes misconduct under a 1997 precedent, but exercises its discretion to impose no discipline in light of the above-quoted considerations. (Mike Frisch)
Friday, January 29, 2010
The West Virginia Supreme Court imposed a reprimand with two years probation and other conditions in a disciplinary matter involving two complaints. One matter involved allegations of neglect and failure to communicate with a prison inmate client. The attorney had completed the terms of his appointed representation and continued to provide some free legal services. The court concluded that he had not violated these obligations.
The attorney had engaged in a "flirtatious correspondence" with the client, whom he never met in person. The court rejected these facts as the basis of a "sex with client" violation but found the behavior improper:
Rule 8.4(g) of the Rules of Professional Conduct provides that it is professional misconduct to “have sexual relations with a client whom the lawyer personally represents during the legal representation unless a consensual sexual relationship existed between them at the commencement of the lawyer/client relationship.” Based on the plain language of Rule 8.4(g), we find that [the attorney] did not have “sexual relations” with [the client]. Rule 8.4(g) defines “sexual relations” as:
. . . sexual intercourse or any touching of the sexual or other intimate parts of a client or causing such client to touch the sexual or other intimate parts of the lawyer for the purposes of arousing or gratifying the sexual desire of either party or as a means of abuse.
[The attorney] and [the client] never physically met each other. Their relationship existed solely through telephone calls and letters. [He] never attempted to physically have sexual intercourse with [her] or touch her in any manner. [His] telephone calls and letters implied the possibility of having a romantic relationship with [her] at some future date. This conduct does not rise to the level of “sexual relations” as defined by Rule 8.4(g).
However, [his] flirtatious remarks were misconduct under Rule 8.4(a), because they were an attempt to establish a sexual relationship with his client. We condemn this conduct and find that [his] behavior was inappropriate and prejudicial to the administration of justice because his client was incarcerated and in a vulnerable position. Under the circumstances, [The client] might have felt obligated to respond to [his] flirtatious overtures to ensure that he would fully pursue her interests in the divorce proceeding. We therefore agree with the Board's finding that [his] behavior was also a violation of Rule 8.4(d) of the Rules of Professional Conduct.
The other matter involved escrow violations. (Mike Frisch)
The West Virginia Supreme Court annulled the license of an attorney for misconduct in handling settlement proceeds on behalf of a now-deceased client. The complaint was filed by the deceased client's daughter and executrix of the estate. The attorney received a series of three settlement checks and had claimed making a $15,000 cash payment to the client prior to her death. A hearing panel subcommittee had found misappropriation even with credit for the cash, and the court agreed:
[The attorney] argues that the main evidence used against him was an alleged failure to provide [the client] with $15,000 that was in the form of a check made out to “Cash,” which he claims he cashed and then deposited into [her] bank account. While there was ample questioning before the Hearing Panel Subcommittee, he argues that such an allegation of failure to provide this money to [the client] was never proved. A review of the record reveals to this Court, however, that the issue regarding the $15,000 check made out to “Cash” was not considered by the Hearing Panel Subcommittee in reaching its determination. The Hearing Panel Subcommittee properly found that the evidence failed to prove a misappropriation by [the attorney] of the $15,000 check made out to “Cash.” Thus, the Hearing Panel Subcommittee limited its scope, post-hearing, to the misappropriation of the monies owed to [third party medical providers]. Though he disagrees with whether his behavior should be classified as intentional thievery or merely negligent mismanaging of funds, [the attorney], by his own admission, mishandled the money for these specific medical bills. Further, the underlying evidence was clear that [he] failed to provide an accurate accounting of the personal injury settlement proceeds to the estate and, significantly, that he charged an excessive fee for the fraudulent accounting of the monies. Finally, [he] attempted to engage in an improper settlement with the estate regarding the ethics charges. Therefore, this Court will not disturb the findings made by the Hearing Panel Subcommittee that [he] violated various provisions of the Rules of Professional Conduct.
The court further agreed that annulment was the appropriate sanction:
While there is no dispute regarding the personal injury settlement reached on behalf of [the client] during her lifetime, the evidence shows that [the attorney] did not diligently represent her interests when he neglected to pay the outstanding medical bills under her personal injury suit. Further, the unpaid portions, at a minimum, should have been forwarded to her estate. [He] offered to pay such monies to the estate only after the estate instituted both an ethics complaint and a civil suit. [He] commingled and misappropriated the funds due to [the client] during her lifetime, then, when asked by the estate for an accounting of the personal injury settlement monies, he created a fraudulent billing statement and charged an excessive fee for his time involved in creating the bill. Commingling of client funds, coupled with failure to rectify the situation when questioned about the finances, results in a determination that [his] actions lacked integrity and honesty and that he failed to safeguard the interests of [the client] and the general public.
The Nebraska Supreme Court has affirmed the dismissal of a libel per se claim on grounds of absolute privilege. The complaint was filed by an attorney licensed in California. The attorney represents clients in Florida matters on a pro hac vice basis and has "apparently been unable to obtain a license in Florida. This in at least in part because of drug-related felony convictions that occurred in Nebraska 30 years ago."
The defendants in the libel actions were a former Florida client, who the attorney had represented until his pro hac status was revoked, and the client's new attorney. The plaintiff had filed a complaint against the new attorney with the Florida State Bar alleging that the lawyer had solicited the client. Plaintiff also sued lawyer and client for defamation in Florida.
Defendants learned that plaintiff was seeking a pardon in Nebraska and they opposed the pardon, "allegedly out of vindictiveness" for the Florida lawsuit. Defendant lawyer sent a letter on the client's behalf to the Board of Pardons asserting that plaintiff had lost his pro hac status due to misrepresentations, lied about his convicted felon status in order to vote in Florida, illegally practiced law and charged exorbitant fees. The libel suit was filed the day the pardon application was denied.
The court here agreed with the district court that the communications to the Board of Pardons were protected by absolute privilege. (Mike Frisch)
The Michigan Attorney Discipline Board affirmed a hearing panel''s determination that no misconduct was proven in a case where the attorney allegedly failed to file a motion for relief from judgment on behalf of an incarcerated client. The board recounts the panel findings:
...that there was insufficient evidence to conclude that [the attorney] had neglected a legal matter or violated any other rule of professional conduct alleged in the formal complaint....The panel specifically noted testimony that [the attorney] was retained to help [the client] edit a motion for relief from judgment that he had already written. The panel also relied upon [the attorney's] testimony regarding his discussions with [the client's mother] to the effect that she wanted her son to file the motion himself because the work he was doing on his own behalf was essential to his well being during his incarceration. The panel found that [the attorney] had performed a multitude of services, including, making several trips to the Upper Peninsula for meetings with his client, reviewing the brief drafted by [the client] and the legal arguments and cites contained therein, and meetings with [an expert] in Pittsburgh.
The board also rejected the suggestion that the lawyer had failed to "assist" the client. (Mike Frisch)
Thursday, January 28, 2010
From the New York Appellate Division for the First Judicial Department comes this decision:
Defendant [New York Yankees Partnership] established prima facie entitlement to summary dismissal by submitting evidence that it had no notice of the condition on the stadium's escalator allegedly causing plaintiff's fall and that the escalator steps were reasonably safe for traversing, and plaintiff's opposition failed to create any material issue of fact. Although plaintiff alleged that water accumulated on the escalators each time it rained at Yankee Stadium, this raised no more than a general awareness that the escalators became wet during inclement weather, which was insufficient to establish constructive notice of the specific condition causing plaintiff's injury. Plaintiff produced no evidence to raise a factual issue as to whether defendant had received such notice from any other source. (citations omitted)
The Colorado Presiding Disciplinary Judge approved a 120 day consent suspension of an attorney. The attorney admitted that he had failed to provide competent representation to a criminal client. To make matters worse, the attorney further admitted that he had "testified while intoxicated" in the proceeding exploring his ineffective assistance.
I wonder what the blood alcohol content is for testifying while intoxicated. (Mike Frisch)
The Ohio Supreme Court dismissed disciplinary charges against an attorney accused of failure to properly withdraw from representation. The court's web page reports:
In a 6-1 per curiam opinion, the Court concluded that [the attorney's] filing of a wrongful death suit in the name of the administrator of a deceased person’s estate without the administrator’s consent may have been “flawed” as a legal strategy, but did not violate state attorney discipline rules because [his] action was undertaken in good faith and had an arguable basis in law.
The majority opinion was joined by Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton, Paul E. Pfeifer, Maureen O’Connor, Terrence O’Donnell and Robert R. Cupp.
Justice Judith Ann Lanzinger dissented, stating that in her view [the attorney's] conduct was contrary to disciplinary rules and she would impose a stayed six-month license suspension as the appropriate sanction.
An attorney who had his licensed revoked in 1985 sought reinstatement to the Michigan Bar. The Attorney Discipline Board affirmed a hearing panel determination that the reinstatement criteria had not been met, noting that the petitioner had two additional felony convictions after the license revocation.
The attorney had argued that he had been "punished enough" but the board found that the argument "misses the point" in light of the real purpose of the proceeding, which is to determine present fitness to practice. Such fitness is not established by the mere passage of time. (Mike Frisch)
The web page of the Disciplinary Board of the Pennsylvania Supreme Court reports the recent interim suspension of a former state senator as a result of a criminal conviction. Details about the conviction and related criminal cases may be found in this post from Philly.com:
In March, after a 22-week trial, a federal jury found [former senator] Fumo guilty of 137 counts of conspiracy, fraud, tax offenses, and obstruction of justice. Prosecutors presented weeks of testimony that Fumo misused millions of public dollars for his own benefit while one of the most powerful senators in Pennsylvania.
According to the post, he is now serving a sentence in federal prison. (Mike Frisch)
Wednesday, January 27, 2010
Posted by Alan Childress
The New Orleans Saints are going to the Superbowl on February 7. Jury trial is scheduled for February 1. It is basically the irresistible force versus the utterly movable object. As my colleague Tania Tetlow wrote in sending this to us, "A wise decision from a local judge."The judge ordered today:
The Court takes judicial notice that Saintsmania permeates the City of New Orleans. Many prospective jurors for the Parish of Orleans, several attorneys involved in this litigation and Court personnel plan on traveling to the promised land -- the Superbowl in Miami, Florida. The Court recognizes that this pilgrimage enhances the chances of the Who Dat Nation to acquire the long sought after Holy Grail -- the Vince Lombardi trophy.With that, the jury trial scheduled for February 1 was re-set for February 9 (in pdf here: Download Order_Trial_Continued_Saints_to_Superbowl). And my son's school sent me a similar email canceling school on Monday, February 8. All this in the middle of Carnival!
Posted by Alan Childress
Just opened and already clever, the blog of the state bar of Michigan offers "comment, news and issues of interest to Michigan lawyers" plus really to many of us not so blessed. Why blog when you cannot legally take positions except on core legal profession matters? Well,
[W]ho better to compile a daily quick summary of news and observations on issues of immediate interest to Michigan lawyers than an organization that has a close and constant view of both the national picture and local and specialty bars in Michigan, as well as of the work of the Michigan Supreme Court, legislature, and governor’s office?
One of the first posts, Score One for the Maize and Blue, describes an exchange in the U.S. Supreme Court that actually must touch about five of Jeff Lipshaw's sweet spots: the oral argument...
...piqued the interest of the lexophiles on the Court when he described a Justice Kennedy hypothetical as a valid issue for future cases but “entirely orthogonal to the issue at hand.”
Roberts: “I’m sorry. Entirely what?... What was that adjective? I liked that?"
Scalia: “I think we should use that in the opinion…or the dissent.”
Of course, we in Michigan all know that orthogonal means “at right angles,” having walked across the orthogon on campus many times.
My own sweet spot is hit when imagining C.J. Roberts saying the above in the droll southern voice of Fred Gwynne: Say what? The two what? Did you say yoots?
Fred was actually a Harvard grad playing a Yale grad.
Posted by Alan Childress
And a commenter at the Huffington Post worries that the upgraded version will be named the Max iPad.
But seriously it is not a Kindle killer -- I am a big fan of the Kindles and tout their advantages and tips elsewhere -- as long as the Apple pad uses backlit LCD, has relatively short battery life, and iBooks cost $15.
Posted by Alan Childress
Wow. I missed this harrowing story a few weeks ago, out of Nebraska, but -- thanks to my ethics student Jeff Malfatti -- here it is (in a newsy and interesting article by Todd Cooper of the Omaha World-Herald). It is called Lawyer goes into hiding and is well worth a look. A peek at it:
In measured words, the Omaha attorney confides that he is in hiding after he wore a wire to help the U.S. government indict inmate Shannon E. Williams and 10 others in a massive marijuana conspiracy.
I realize I could lose my law license over this, his friends have recalled him saying in recent weeks. But, please, don't jump to conclusions. Williams talked about committing crimes, about eliminating witnesses. I had to do something.
And that's it. Just as quickly as he tantalizes former colleagues, he shuts down — saying federal prosecutors have asked him not to talk about why he chose to risk his legal career, even his life, by taking on the marijuana ring and its alleged kingpin.
In a case that will hinge in large part on Haddock's credibility, here's what Haddock doesn't always divulge: His involvement in the federal investigation came after a yearlong stretch in which his personal and professional lives began to circle the drain.
A pretty strong reply by defense attorney Bobby Frederick in his blog -- "this scenario reeks." And he asks the $64M question: "The lawyer who participates in this ... probably is facing legal troubles of his own and could care less if he is disbarred for what he has done. But what about the prosecutor who set it up or who uses the evidence after the police have set it up?"
The lawyer's firm lists him as a banking and bankruptcy lawyer.
A Colorado hearing board concluded that a lawyer engaged in litigation misconduct on behalf of a client with whom he had an "intimate, albeit non-sexual, relationship." The underlying case involved a divorce where the issues were division of property and maintenance, but not marital fault. The client wanted to use depositions to explore her spouse's alleged misconduct during the marriage. According to the hearing board, this "misguided strategy prevailed when [the lawyer] adopted it. Respondent failed to exercise professional and independent judgment on behalf of his client." The hearing board suspended the attorney for a year and a day with all but 90 days stayed upon completion of two-years probation.
The litigation strategy related to deposition questions posed to the husband and the parties' adult son about the husband's alleged sexual misconduct. After the representation commenced, the adult son found a laptop computer that contained photos of the attorney and client in Belze. He became angry at his mother and the lawyer. The daughter also had concerns about their relationship. The lawyer admitted the trip and that he had signed missives to the client that contained terms of endearment.
It also was established that the lawyer set up his office in the client's home and slept with the client in her bed on a platonic basis. After his client had been roughly handled by opposing counsel at her deposition (she called counsel a "bull in a china closet"), the inappropriate questioning of the husband and son followed and led to the attorney's disqualification. The questions are set out in the opinion. The disqualification was upheld with a finding that the attorney's involvement in the case had ratcheted up the heat of the litigation.
The board found that the attorney had a conflict created by the relationship with the client and had asked "irrelevant and loathsome questions that served no substantial legal purpose." His "emotional commitment to [the client] compromized his professional judgment." He also "still believes he acted appropriately in representing [the client]." (Mike Frisch)
Tuesday, January 26, 2010
An Arizona hearing officer has recommended a six-month suspension and probation for two years in a matter involving an attorney who was conditionally admitted to practice in May 2008. The attorney had entered the Bar's assistance program prior to admission and accepted terms and conditions for continuing participation that included abstaining from alcohol and mind-altering drugs.
In January 2009, she was found non-responsive behind the wheel of her car and arrested for DUI offenses. Things got worse in April 2009 when she crashed her car into a storage shed in a homeowner's backyard. She fled the scene but was followed and confronted by the shed owner. She denied responsibility and was reported to the police. When the police returned to her home and read her Miranda rights, she responded "Fuck you, I will not talk to you." She was convicted of alcohol-related driving offenses.
The attorney admitted to the bar treatment director that she had been drinking daily from January to April 2009 but invoked the Fifth Amendment to a series of questions at the Bar proceeding. The hearing officer found violations without any inference drawn from the assertion of rights. (Mike Frisch)
The New York Appellate Division for the First Judicial Department has affirmed the dismissal of a series of legal malpractice claims:
The doctrine of collateral estoppel bars this malpractice action by plaintiff against the four attorneys who successively represented him in a federal diversity suit that was dismissed for plaintiff's continuous and willful failure to comply with discovery orders, the district court having rejected his attempt to shift responsibility for the noncompliance to his attorneys.