Wednesday, March 31, 2010

"Friending" And Florida Ethics

The Florida Judicial Ethics Advisory Committee has now weighed in on a series of questions concerning "friending. " Judicial assistants may friend so long as they do so in conformance with this opinion:

Several opinions clearly hold that judicial assistants are not subject to the Code of JudicialaConduct. See JEAC Op. 95-12 (where a majority of the Committee believed that the Code of Judicial Conduct did not apply to judicial assistants for seeking donations and fund-raising activities outside the courthouse and outside their administrative duties); Op. 93-45 (law clerks not bound by Code of Judicial Conduct when engaged in partisan political activity during their personal time).

While the Code may not apply directly to judicial assistants, it may indirectly impact them and their duties.   In JEAC Op. 00-08, the Committee recommended that the judge direct its court employees, including judicial assistants, to not accept gifts.  The Committee explained that “the acceptance of such gifts places the fidelity and the integrity of the court into serious question.” JEAC Op. 00-08; see also Canon 3C(2), Fla. Code of Jud. Conduct.  Furthermore, in Op. 06-32, the Committee opined that a judicial assistant should not accept employment cleaning offices of attorneys who have appeared or were likely to appear before the judge.  That conduct, coupled with the monetary implications, “gives an appearance of impropriety and has an adverse impact on the public perception of the integrity of the court system.” JEAC Op. 06-32; see also Canon 2B, Fla. Code of Jud. Conduct.

In JEAC Op. 09-20, the Committee recommended that a judge not add lawyers who may appear before the judge as “friends” on a social networking site, nor allow lawyers to add the judge as their “friend.”  The Committee believed “that listing lawyers who may appear before the judge as ‘friends’ on a judge’s social networking page reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.” Canon 2B.

The concern presented in this inquiry is whether a judicial assistant adding a lawyer as a “friend” on a social networking site indirectly conveys the message that the attorney, who may appear before the judge, has a special position to influence the judge.  The mere fact that personal information is being disseminated between the judicial assistant and a lawyer on the social networking site does not adversely impact the public perception nor compromise the integrity of the court system.  Prohibiting the judicial assistant from expressing himself/herself outside the courthouse infringes upon his/her First Amendment freedoms.  This form of expression by judicial assistants is not contemplated in our Canons and therefore not a violation of Canon 2B. 

As long as a judicial assistant utilizes the social networking site outside of the judicial assistant’s administrative responsibilities and independent of the judge, thereby making no reference to the judge or the judge’s office, this Committee believes that there is no prohibition for a judicial assistant to add lawyers who may appear before the judge as “friends” on a social networking site.

However, a judge would continue to have the responsibility under Canon 3C(2) to “require staff, court officials, and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge. . . .”  Therefore, in the unlikely event that a lawyer attempts an ex-parte communication through the social networking site, the judge should direct the judicial assistant to immediately “de-friend” the lawyer and to immediately report it to the judge.

The committee also opines that a candidate for an elected judgeship and lawyers who may appear before the judge if elected may "friend' each other.

Finally, there is this opinion:

(1) Whether the Code of Judicial Conduct requires a judge who is a member of a voluntary bar association to “de-friend” lawyers who are also members on that organization’s Facebook page and who use Facebook to communicate among themselves about that organization and other non-legal matters.


(2) Whether a judge may allow an attorney access to the judge’s personal social networking page as a “friend” if the judge sends a communication to all attorney “friends” or posts a permanent, prominent disclaimer on the judge’s Facebook profile page that the term “friend” should be interpreted to simply mean that the person is an acquaintance of the judge, not a “friend” in the traditional sense.


(3) If a judge accepts as “friends” all attorneys who request to be included or all persons whose names the judge recognizes, and others whose names the judge does not recognize but who share a number of common friends, whether attorneys who may appear before the judge may be accepted by the judge as “friends” on the judge’s Facebook page.


(Mike Frisch)

March 31, 2010 in Hot Topics, Law & Society | Permalink | Comments (0) | TrackBack (0)

Limits Of Free Speech

The Illinois Review Board has recommended a suspension of two years and until futher order ("UFO" in disciplinary parlance) for a variety of ethics violations that included frivilous litigation and baseless accusations against judges. The United States Court of Appeals for the Seventh Circuit has disbarred the attorney for misconduct found in litigation initiated by the attorney after her discharge from an assistant corporation counsel position with the City of Chicago.

 The board notes:

While attorneys can legitimately criticize a judge or disagree with his or her rulings, an attorney cannot unjustly impugn the character or integrity of a judge without having any basis for doing so. Kozel, 96 CH 50. While judges are not exempt from just criticism, the public interest and the administration of the law demand that the courts should have the confidence and respect of the people; therefore, attorneys cannot engage in baseless and unjust criticism, insulting language and offensive conduct toward judges. People ex rel. Chicago Bar Association v. Metzen, 291 Ill. 55, 58, 125 N.E. 734 (1919).

Significantly, the accusations about which the Administrator introduced evidence occurred in the context of pleadings filed in court. This is not a situation involving purely political speech, as [the attorney] seeks to suggest. An attorney acting in the capacity of an officer of the court cannot make scurrilous charges against judges. In re Phelps, 55 Ill. 2d 319, 303 N.E.2d 13 (1973). Orderly conduct of legal proceedings and public confidence in those proceedings require that attorneys not make false and baseless accusations against the integrity of judges. Palmisano, 92 CH 109 (Review Board) pp. 5-7. Where those statements are made with the requisite mental state, see e.g., Rules 3.3(a)(1) and 8.2(a), an attorney can be disciplined for those statements.

The Hearing Board majority found that [the attorney] made her statements with the requisite intent. State of mind is an issue of fact, within the province of the Hearing Board. In re Ingersoll, 186 Ill. 2d 163, 168-69, 710 N.E.2d 390, 237 Ill. Dec. 760 (1999); Palmisano, 92 CH 109 (Review Board) p. 3.

The circumstances as a whole support the Hearing Board majority's finding.

Circumstantial evidence can be considered in proving state of mind, and the record as a whole can be used in assessing a respondent's good faith, or lack thereof. Jafree, 93 Ill. 2d at 458, 444 N.E.2d 143, 67 Ill. Dec. 104. An inference of a lack of good faith can be drawn where it appears that a respondent's statements are made in retaliation for rulings adverse to the respondent or where there is a pattern of such statements. See Palmisano, 92 CH 109 (Review Board) pp. 1-2. Both are clearly present here. The point here is not whether any isolated individual statement is or is not protected by the First Amendment, but whether [the attorney] has demonstrated a pattern of making false accusations against members of the judiciary without any legitimate basis for doing so. The evidence demonstrates such a pattern, even if certain statements might, in and of themselves, constitute matters of opinion or hyperbole that would not, if considered on their own, warrant discipline.

(Mike Frisch)

March 31, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Reintatement Denied To Attorney Who Represented Law Student At Hearing While High On Drugs

The Michigan Attorney Discipline Board affirmed a hearing panel order denying the second reinstatement petition of an attorney suspended for two years in March 2005. The suspension order was entered five years ago today. Among the violations (related to the attorney's cocaine addiction) was his "representation of a law student in a school disciplinary hearing while under the influence of drugs."

The board rejected the proposition that the passage of the specified time imposed by suspension (if it requires a petition for reinstatement) establishes a prima facie case for reinstatement: "This is not the law..." There was proper evidentiary support for the hearing panel's adverse conclusions and the petitioner has a heavy burden in establishing that his reinstatement is in the public interest. (Mike Frisch)

March 31, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Lipshaw's Three Laws of Stress

 The Three Laws of Stress (as observed in Type A people):

1.  Stress will expand to fill the available psychic capacity.

2.  Stress is infinitely expandable regardless of the initial stress energy.

3.  There is a minimal level of stress energy, expressed as a function containing Planck's Constant, such that we can never be free of initial stress energy.

Over our mid-semester break, I undertook a number of steps to relieve myself of the Images-2usual end of semester stress:  prepared two talks; wrote two exams; got an article accepted in a law review; started in on another task I am too embarrassed to mention but which is not due until next January.  As far as I can tell, I have nothing pressing on my to-do list.  My next major commitment for which I am unprepared is teaching contracts in the August and a symposium in October.  I woke up yesterday morning to figure out what I should be worrying about.  You can take the boy out of the Type A, but you can't take the Type A out of the boy.

[Jeff Lipshaw]

March 31, 2010 | Permalink | Comments (1) | TrackBack (0)

Tuesday, March 30, 2010

Boston College Law Review - Tarkington on the Right to Impugn Judicial Integrity

Posted by Jeff Lipshaw

Tarkington_margaret Caitlin Mulligan, the EIC of the Boston College Law Review, sent us a nice note highlighting Margaret Tarkington's (BYU, left) new article A Free Speech Right to Impugn Judicial Integrity in Court Proceedings.

Before we get to the abstract, I should note that Ms. Mulligan made the mistake of sending it to me along with Alan and Mike, which meant that I got to send her the following note (the humor, as it were, of which should be apparent to law professor readers), along the lines of what many years ago, when we were looking for law firm jobs we used to refer to as the "reverse bullet":

Dear Caitlin:

The temptation to write something like the following is almost unbearable.

* * *

Thank you for your interest in the Legal Profession Blog. 

We receive many such requests for publicity each year.  Space restrictions prevent us from publicizing many fine articles.  While we are unable to accept this submission, we would welcome the opportunity to review any blog posts you may write in the future.

We look forward to reading your future work and wish you the best of luck with this piece.

* * *

But we'll post something anyway.

So here's the abstract:
This Article examines why a free speech right to impugn judicial integrity must be recognized for attorneys when acting as officers of the court and making statements in court proceedings. Such a right is necessary to protect the constitutional and legal rights of litigants to an unbiased and competent judiciary. Further, the recognition of such a right for the attorney preserves litigants’ access to courts and due process rights. Previous scholarly arguments, which are based on analogies to other areas of limited First Amendment protection, fail to account for the protection of litigant rights, the role of attorneys in our adversary system, and the constitutionally required role of our judicial system. By curbing speech in the presentation of claims, the judiciary undermines the adversarial system and the role of attorneys therein, as well as undermining the judiciary’s own role and responsibility in remedying constitutional violations and providing fair proceedings.

March 30, 2010 | Permalink | Comments (0) | TrackBack (0)

Reading Arguably Privileged E-Mails Was Unethical

The New Jersey Supreme Court held today that an employee "could reasonably expect that e-mail communications with her lawyer through her personal, password-protected, web-based e-mail account would remain private, and that sending and receiving them using a company laptop did not eliminate the attorney-client privilege that protected them." The employer's counsel violated Rule 4.4(b) by reading the e-mails and failing to promptly notify the employee. The court noted that no reported New Jersey decision offered direct guidance on the issue.

The case was remanded to decide whether disqualification, screening, or imposition of other some other remedy should be imposed for the ethical violation. (Mike Frisch)

March 30, 2010 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Not Fit For Reinstatement

The Wisconsin Supreme Court denied the reinstatement petition of an attorney who had been suspended due to an alcohol-related medical incapacity in 1998. The petitioner had suffered a relapse into drinking in October 2005 and claimed that she had been sober since that  time. She petitioned for reinstatement in April 2006.

The referee had recommended reinstatement with conditions that included passing the bar exam in light of the suspension length. The Office of Lawyer Regulation objected to the recommendation and the court agreed that the evidence did not warrant reinstatement:

Supreme court rule 22.36(6) governs reinstatement following suspension due to medical incapacity.  It provides that the petitioner has the burden of showing by clear, satisfactory, and convincing evidence that (1) the medical incapacity has been removed and (2) the petitioner is fit to resume the practice of law, with or without conditions.  Id.  Both requirements are necessary for reinstatement following a suspension for medical incapacity.  

 We conclude the referee's findings do not support a determination that Attorney Schlieve has met her burden under SCR 22.36(6) to establish by clear, convincing, and satisfactory evidence she is fit to resume the practice of law.  Whether the petitioner has demonstrated fitness to resume the practice of law presents a legal question we review de novo.  See Nottelson v. Wis. Dep't of Indus., Labor, and Human Relations, 94 Wis. 2d 106, 116, 287 N.W.2d 763 (1980) (The question whether the facts, as found, fulfill a legal standard presents a question of law.).  We conclude the failure to establish the fitness component of SCR 22.36(6) is dispositive here; therefore, it is unnecessary to resolve the parties' arguments with respect to the referee's remaining findings and conclusions.

The term "fit," as used in 22.36(6) with the phrase "to practice law," encompasses more than the removal of a medical incapacity or being in a physically, mentally, or morally sound state.  The term "fit" is sufficiently broad to imply a state of preparedness to render competent legal services; that is, to be prepared to provide the measure of expertise to ensure the attorney may be safely recommended to the community as a person to be consulted by and to represent others in legal matters.

Referee Hanson expressed his concern that Attorney...has been away from the practice of law for over nine years and needs "extensive retraining and legal education."  He stated that testing is needed to determine the level of Attorney...'s legal expertise; he recommended she be required to pass the state bar examination and that she be mentored.  We conclude the referee's findings fail to identify clear, satisfactory, and convincing evidence that sufficiently prepared to resume a law practice and be safely recommended to be consulted by and to represent individuals in legal matters.  Notwithstanding the updated continuing legal education information recently submitted, we are unpersuaded that Attorney...has met her burden under SCR 22.36(6) to establish she is currently fit to resume the practice of law.  Consequently, we deny Attorney...'s petition for reinstatement

The court also ordered the petitioner to pay the costs of the proceeding. (Mike Frisch)

March 30, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, March 29, 2010

Not In Good Standing

The Connecticut Appellate Court affirmed the dismissal of a case brought by a student who had attended law school at Quinnipiac University. The student requested that the university issue certificates of good standing in order for her to enroll and take courses as a visiting student for transfer credits and to submit transfer applications to institutions that included the University of Minnesota Law School. The student had an unpaid tuition balance and the university refused to issue transcripts and a letter of good standing so long as the balance remained unpaid. An associate dean wrote a letter to the Dean of Minnesota Law advising that the student was no longer in good standing.

The student filed a diversity action in federal court alleging that the associate dean's letter was defamatory. The case was dismissed at the close of the plaintiff's case-in-chief based, among other things, on the legal conclusion that financial delinquency was a ground for denial of the issuance of a certificate of good standing.

The student then filed a state court action, which was dismissed after a six-day trial in which the student represented herself. The court here affirmed the judgment. (Mike Frisch)

March 29, 2010 in Current Affairs, Economics | Permalink | Comments (0) | TrackBack (0)

A Gross Misjudgment

The New York Appellate Division for the Second Judicial Department has suspended an attorney for four years.

The misconduct?

Among other things, the attorney had his clients convey title to their home to him in order to avoid foreclosure and later evicted the clients while continuing to represent them in a family court matter.

The court concluded:

In determining an appropriate measure of discipline to impose, the respondent asks the court to note his altruistic motivation, his expressed regret, his previously-unblemished record, and the favorable character letters submitted by six locally practicing attorneys. As evidence of his intent to aid the clients, the respondent points out an admission by one of the clients under oath that the respondent gave him approximately $600 to $800 to get the utilities back on in his residence. The respondent further points out that this matter did not emanate from a complaint by the clients inasmuch as his conduct did not impact upon his representation of them in Family Court. He maintains that his questionable transactions and conflicts were not aggravated by additional misconduct.

While he may have suffered from the fiscal irresponsibility of his clients, the respondent evinced serious misjudgment in commencing an eviction proceeding against them while continuing to represent them in a pending Family Court matter. Balancing the respondent's previously-unblemished record and the absence of substantial harm to the clients with his display of gross misjudgment, we conclude that respondent should be suspended from the practice of law for a period of four years.

(Mike Frisch) 

March 29, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The Instant Misconduct

In a case involving an attorney who had been subject to two prior informal admonitions ana a public censure, the Pennsylvania Supreme Court reduced the sanction of a two year suspension proposed by its Disciplinary Board and ordered a suspension for one year and one day. The attorney had incompetently handled a matter and, according to the Board, "simply did not participate in the litigation after he had filed the complaint." He failed to cooperate with the clients' new attorney after he was fired.

The Board was not impressed:

Notwithstanding [his] history of prior discipline, Respondent is yet again before the Board. Quite obviously, these prior entanglements have not impressed upon Respondent his responsibilities to his clients. Respondent did not appear remorseful either for his instant misconduct or any of the past incidents. The instant record is completely devoid of evidence to support a finding that respondent intends to conform his actions to the Rules of Professional conduct in the future.

Two justices would impose the recommended two-year suspension. (Mike Frisch)

March 29, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Grade Litigation Goes Nowhere

A recent decision from the New York Appellate Division for the First Judicial Department:

Plaintiff, a transfer student at defendant law school, commenced this action alleging, inter alia, that defendant breached an implied contract of good faith and fair dealing with him as a result of a grade he received in his Legal Writing II course. Claiming that he was unfairly disadvantaged because he did not take Legal Writing I at the law school, plaintiff seeks to require the law school to change its grading system from letter grades to pass/fail.

"The rights and obligations of the parties, as contained in the university's bulletins, bec[o]me a part of the parties' contract" (Prusack v State of New York, 117 AD2d 729, 730 [1986]). However, only specific promises set forth in a school's bulletins, circulars and handbooks, which are material to the student's relationship with the school, can establish the existence of an implied contract (see Lloyd v Alpha Phi Alpha Fraternity, 1999 WL 47153, *9-10, 1999 US Dist LEXIS 906, *25-28 [ND NY 1999]; see also Abraham v New York Univ. Coll. of Dentistry, 190 AD2d 567 [1993]). Absent the existence of a contract, a claim alleging breach of the implied covenant of good faith and fair dealing is legally unavailing (see Schorr v Guardian Life Ins. Co. of Am., 44 AD3d 319 [2007]). Furthermore, "although . . . the determinations of educational institutions as to the academic performance of their students are not completely beyond the scope of judicial review, that review is limited to the question of whether the challenged determination was arbitrary and capricious, irrational, made in bad faith or contrary to Constitution or statute" (Matter of Susan M. v New York Law School, 76 NY2d 241, 246 [1990] [internal citations omitted]).

The court properly dismissed the complaint as there is no indication that defendant ever promised that it would utilize a pass/fail grading system. In fact, the remedy plaintiff seeks is contradicted by the documentary evidence, as defendant communicated through its student handbook that it utilizes a letter grading system under which all students are evaluated. Accordingly, plaintiff's breach of implied contract claim fails, as does his claim for breach of the implied covenant of good faith and fair dealing.

Plaintiff contends that he was unfairly disadvantaged and that his grade was arbitrary and capricious, as all assignments given in Legal Writing II were based on the law and the facts from assignments given in Legal Writing I. This argument is belied by the record, which includes an email from defendant's Office of Academic Affairs informing plaintiff that his Legal Writing section had been changed, and that he should contact the Administrative Assistant of Legal Writing, who would provide him with the materials needed to bring him "up to speed" for the spring term. There is no evidence that plaintiff availed himself of this opportunity.

The motion court did not abuse its discretion in declining to enter an unsigned, unverified copy of a transcript of a recorded discussion between plaintiff and his professor (see e.g. Myers v Polytechnic Preparatory Country Day School, 50 AD3d 868, 869 [2008]).

(Mike Frisch)

March 29, 2010 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Sunday, March 28, 2010

The Difference Between Being a GC and a CEO

Posted by Jeff Lipshaw

Unfortunately, I can't provide a link because the online version of today's New York Times doesn't seem to include it, but the second page of Sunday Business is the "Corner Office" interview with Debra L. Lee, the Images-1 chairwoman and CEO of BET (and successor to Bob Johnson, who founded the network before it got sold to Viacom).  Buried in the interview are a couple observations I found interesting, given that Ms. Lee was BET's general counsel before being appointed as the chief operating officer. 

Q. Looking back, it sounds as if it was a big leap to go from general counsel to C.O.O.

A. As a general counsel, you're taught research, research, find out every case, find out every opinion, think about it.  It's almost like you are a judge.

So when I went from being general counsel to C.O.O., that's the way I first approached it.  Well, it doesn't work.  I had to learn to make decisions quicker and follow my gut.  You're not going to be able to run the numbers and come up with perfect answers.

I certainly agree with her observation about being a COO or a CEO, but I think that most COOs and CEOs would get very, very frustrated with a general counsel who couldn't either translate all of the legal stuff into something that could factor into an executive's gut-based decision, or couldn't make quick and gut-based business decisions herself that placed the legal concerns alongside the non-legal ones. 

The example I give in The Venn Diagram of Business Lawyering Judgments (forthcoming, 46 Seton Hall L. Rev., Issue 1 (2011)) is the decision whether to proceed with an acquisition in which there is significant competitive overlap.  The synergies arising from that overlap may well be part of the purely business decision whether the acquisition is attractive, and the analysis whether a Hart-Scott-Rodino pre-merger filing is necessary, and whether there are substantive Section 7 concerns is almost purely legal, but the decision whether the acquisition is attractive enough to merit the risk and cost of the antitrust review is one of mixed law and judgment that I believe only a "well-attuned to the business" GC is in a position to make.

March 28, 2010 in General Counsel, Law & Business | Permalink | Comments (0) | TrackBack (0)

Saturday, March 27, 2010

Over Employed

In a time where legal work is hard to find, an attorney in Colorado was found to have engaged in dishonesty and fraud by working at two law firms (he was a partner in one of the firms) at the same time without disclosing the conduct to either firm. He made misrepresentations to partners at both firms. The attorney also had transferred cases to the second firm and written off time at the first firm.

The Colorado Presiding Disciplinary Judge accepted a conditional admission of misconduct and ordered a three-year suspension with all but a year and a day suspended, followed by two-years of probation. (Mike Frisch)

March 27, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Email Breaches Duty Of Confidentiality

A Wyoming attorney who was practicing before the Colorado courts was suspended for a year and a day in Colorado. The attorney was charged with ethics violations after she undertook a divorce case. When informed that the client no longer wanted her services, the attorney sent an email to opposing counsel that made false accusations that the client had committed perjury, judge tampering, staged a 911 call and was engaged in a criminal enterprise for profit.The email also disclosed confidential information relating to the representation.

The Presiding Disciplinary Judge concluded that the attorney had violated the duty of confidentiality by sending the email. The attorney had charged the client $250 per hour, which was "far beyond an appropriate rate" given her lack of experience in divorce matters and thus excessive.

The attorney did not participate in the disciplinary case. (Mike Frisch)

March 27, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, March 26, 2010

No Wasted Resources

The Indiana Supreme Court has accepted a conditional agreement resolving charges against an elected judge who employed his spouse as the city court clerk. The judge was charged with five felony theft counts "stemming from allegations that Respondent exerted unauthorized control over infraction ticket payments, payments to resolve failures to appear and to restore drivers' licenses, and funds held in the...Court's bank account." He was suspended by the court the day after charges were filed and remains suspended.

The court found that "further prosecution of this matter is unnecessary." As the most severe sanction would likely be removal from office and a ban on future judical service, the charges were dismissed without prejudice if he fails to follow the terms of agreement that include the immediate tender of a letter of resignation to the Governor: "Because Respondent has agreed to such terms, continuation of this proceeding would be a waste of limited judicial resources." (MIke Frisch)

March 26, 2010 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Emory Transactional Education Conference – Registration Open

Tina Stark passes along the news that the web site for Emory Law's conference - Transactional Education:  What’s Next?  - is open for registration.


The registration fee for the conference is $179.00. It includes a pre-conference lunch, snacks, and the reception on June 4 and breakfast, lunch, and snacks on June 5.   An optional dinner for attendees on Friday evening, June 4, is an additional $40.00.  Attendees are responsible for their own hotel accommodations and travel arrangements.

After you register, you will be asked to complete a short survey about transactional courses at your school.  The results of the survey will be available at the Conference.

Registration closes May 25, 2010.

To register, please click here.


Special hotel rates for conference participants are available at the Emory Conference Center Hotel less than one mile from the conference site at Emory Law. Subject to availability, rates are $129 per night. Free transportation will be provided between the Emory Conference Center Hotel and Emory Law. To make a reservation, call the Emory Conference Center Hotel at 800.933.6679 and use Group ID Number 20006017399 to obtain the special conference rate.

Learn more about the Emory Conference Center Hotel by visiting its website.

[Jeff Lipshaw]

March 26, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, March 25, 2010

Reflection Time

An Illinois Hearing Board has recommended a 15-month suspension of an attorney who had aided the unauthorized practice a longtime friend who had been disbarred. the attorney also made false statements about his conduct in the ensuing bar discipline case. As to the aiding unauthorized practice charge, the following facts were admitted: 

On January 12, 2007, the Illinois Supreme Court issued its mandate disbarring attorney Marc Erwin Levine. Thereafter, pursuant to Supreme Court Rule 764(b), Levine was prohibited from engaging in the practice of law, holding himself out as an attorney authorized to practice law in the State of Illinois, or maintaining a presence in or occupying an office where the practice of law was conducted.

Between about 2001 and 2004, Respondent and Levine were partners in the practice of law and thereafter remained close personal friends. Respondent was informed of Levine’s disbarment shortly after the mandate was issued by the Court.

After January 12, 2007, the date of Levine's disbarment, Levine engaged in the unauthorized practice of law. After January 12, 2007, Respondent permitted Levine to practice law out of Respondent's law office by allowing Levine to use his office equipment and by allowing Levine to receive mail and telephone calls at Respondent’s law office. Levine used office equipment made available to him by Respondent and drafted documents using Respondent's name and other information to hold himself out as an attorney to buyers or sellers in connection with seventeen real estate transactions.

Levine's conduct violated Supreme Court Rule 764(b) and constituted the unauthorized practice of law in violation of the Court's mandate. During the time Respondent permitted Levine to receive mail at his office and to use his law office and office equipment, including his business telephone and facsimile machine, he knew Levine was disbarred, knew Levine was prohibited by Supreme Court Rule from maintaining a presence in or occupying an office where the practice of law is conducted, and knew Levine was engaging in the unauthorized practice of law. (references to exhibits omitted)

As to sanction:

The Supreme Court has emphasized the serious nature of an attorney providing false information to, or failing to cooperate with, the ARDC. In In re Bell, 147 Ill. 2d 15, 39, 588 N.E.2d 1093, 1104 (1992), where the attorney gave a false written response to the Administrator and then repeated the false response in his sworn statement before the Administrator, the Court stated "the giving of false testimony demonstrates a further unfitness of an attorney to practice law."

After considering the nature of Respondent's misconduct, the purpose of the disciplinary proceedings, and the cases discussed above, we conclude a two year suspension would be longer than that imposed by the Court in comparable situations. On the other hand, something more than a short suspension is warranted by Respondent’s dishonest conduct. We believe a suspension of fifteen months will allow Respondent sufficient time to reflect upon his behavior, and will protect the public and the integrity of the legal profession. Accordingly, we recommend suspended from the practice of law for a period of fifteen months.

(Mike Frisch)


March 25, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

"Unable To Properly Manage His Busy Law Practice"

The Supreme Judicial Court of Maine ordered a six-month stayed suspension with conditions and stated that any failure to adhere to the conditions may be treated as contempt "and further post-judgment proceedings."

The attorney was admitted in December 2003 and "has primarily worked as a solo practicioner with a concentration on criminal defense and family law. In the course of this proceeding, it has become apparent to the Court that [he] proved unable to properly manage his busy law office." The court previously ordered him to restrict his practice to criminal matters and be monitored by another lawyer. After that order, there have been further client complaints, although there were two bar referrals from a District Attorney's office. Those matters were resolved.

The court here continued the "criminal law only" restriction and required approval of his undertaking employment outside his practice by his monitor and the bar's assistance program director. He must also participate in the bar's program. (Mike Frisch)

March 25, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 24, 2010

New IOLTA Rules In D.C.

The web page of the District of Columbia Bar reports this rule change:

The District of Columbia Court of Appeals has adopted amendments to the rules governing the Interest on Lawyers’ Trust Accounts recommended by the D.C. Bar Board of Governors.

The amendments, which go into effect on August 1, make participation in the IOLTA program mandatory for D.C. Bar members who receive IOLTA-eligible funds, except when a lawyer is otherwise compliant with the contrary mandates of a tribunal, or when the lawyer is participating in and compliant with trust accounting rules and the IOLTA program of the jurisdiction where the lawyer is licensed and principally practices.

The court also adopted interest rate comparability provisions for banking institutions in which Bar members are permitted to hold client funds.

The revisions amend Rule 1.15 of the D.C. Rules of Professional Conduct and delete Rule 1.19 and Appendix B to the rules. Some provisions of former Rule 1.19 and Appendix B were moved to Rule 1.15 and to a new Section 20 to Rule XI of the D.C. Court of Appeals Rules Governing the District of Columbia Bar.

The revised rules are intended to boost funds distributed by the D.C. Bar Foundation to local legal service providers by increasing revenue from D.C. IOLTA and interest paid by banks on funds held in these accounts. The revisions also provide greater clarity to the trust account ethics rules.

A proposal addressing monitoring of D.C. Bar members’ participation in the IOLTA program by the Bar Foundation was not forwarded to the court but reserved for further study by the D.C. Bar Regulations/Rules/Board Procedures Committee.

The Board of Governors sent its recommendations to the court in September 2009, and the court published the recommendations for a public comment period. The recommendations were based on the work of the Bar Foundation and the Bar’s Rules of Professional Conduct Review Committee that began in 2006.

For more information on the revised rules, contact legal ethics counsel Hope C. Todd at 202-737-4700, ext. 3231, or Saul Singer at 202-737-4700, ext. 3232, or by e-mail at For information on how to set up an IOLTA, visit

(Mike Frisch)

March 24, 2010 in Bar Discipline & Process, Clients, Current Affairs, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

13 Year Old Climbing Everest? More Than Just Bad Parental Judgment?

Posted by Jeff Lipshaw

In the gym today, I was reading an article in Outside that reminds me of a Law & Order plot's back story.  I don't know anything about family law, but I do write about judgment, and while I'm generally loathe to second-guess reasonable ones, and have a fairly strong libertarian streak, this one seems to call out for - well, if not the Department of Social Services, then maybe some friends' intervention?  If that's possible.

Images The story is about 13 year old Jordan Romero, who with his somewhat wacko sounding father, and his father's more grounded sounding partner, has climbed five of the Seven Summits - the highest peaks on each continent - and is planning an Everest expedition this May from the Tibet side, and without professional guides.  (Some of the exchanges with the kid and his parents reminded me of that L&O episode with the totally dominating father who controls everybody in the family.)  As far as I could tell, not a single mountaineering professional thought this was a good idea - but it sounds like "hockey parents" gone mad.  (I may be influenced by the fact that I am not a climber but I am a climbing story aficionado, likely brought on by the fact that one of my former law partners, Lou Kasischke, was a participant and minor character in the tragic 1996 Everest climb that Jon Krakauer wrote about in Into Thin Air.)

I don't know diddly about family law, or how the state goes about protecting children from really dumb parents, so I don't know how much leeway is given, or whether this is even controversial from a legal standpoint.  I invite comments.  But I'm willing to take a stand and say, even if the young man returns safely, this is really stupid!  If he wants to climb Everest when he's 21, more power to him!  But there is no reason that a child needs to be doing this, and you can't persuade me that he's made the decision to do it as a knowing and consenting adult.

March 24, 2010 in Hot Topics | Permalink | Comments (4) | TrackBack (0)