Saturday, July 31, 2010

Bar Admission Not An "Empty Formality"

The New Mexico Supreme Court imposed a deferred one-year suspension and public reprimand of an attorney who engaged in misconduct involving misrepresentations and unauthorized practice. The misrepresentations involved an estate.

The accused was on inactive status in Virginia and had just passed the New Mexico bar examination. The court rejected a kitchen-sink attack on the disciplinary system and, in particular, disciplinary counsel. Among other things, the court rejected claims of selective prosecution, vindictive prosecution, prosecutorial misconduct and improper ex parte communications.

The court found that the attorney's attempted interference with two entities that were part of the estate also violated unauthorized practice rules:

We recognize that by the time he met with Harbour [the personal representative], Respondent had apparently just learned that his Virginia license had been reactivated and that he had passed the New Mexico bar exam. However, Respondent’s reliance on his newly-reactivated Virginia license coupled with his expectation that he would soon be  admitted to the New Mexico bar strains the exceptions in Rule 16-505(E) to their breaking point. Moving from inactive to active status to practice law is not simply an empty formality, nor is the initial admission to practice law. If those formalities are to have any meaning, a lawyer must refrain from practicing law until he or she is clearly authorized to do so. We therefore conclude that substantial evidence supported the hearing committee’s conclusion that Respondent engaged in the unauthorized practice of law.

The court, however, rejected disciplinary counsel's call for disbarment:

In sum, because there are factors both in aggravation and in mitigation of Respondent’s offenses, and because Respondent’s offenses otherwise warrant a reprimand and suspension under the ABA Standards cited above, a one-year suspension and public reprimand by means of this Opinion are the appropriate sanction for Respondent’s misconduct. We note, however, that the misconduct at issue in this case took place shortly before and after  Respondent was admitted to practice law in this state. Accordingly, we deem it appropriate to  exercise our discretion to defer the period of suspension on the condition that Respondent engage in no further ethical misconduct in violation of our Rules of Professional Conduct and Rules Governing Discipline. We recognize that disciplinary counsel continues to believe that disbarment is the appropriate sanction in this case. However, without minimizing the seriousness of Respondent’s misconduct, we cannot agree that disbarment would be an appropriate response at this time.

(Mike Frisch)

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

Can Stanford Be #1 in the US News Rankings? The Data

[posted by Bill Henderson]

In a recent story in the San Jose Mercury News, the dean of Stanford Law School, Larry Kramer, announced his intention to make Stanford the #1 law school in the country.  As noted by Brian Leiter, the story did not quote Kramer as saying that he wanted Stanford to be #1 in the U.S. News rankings.  The reporter, nonetheless, inevitably gravitated to this dominant measure. As noted by Dan Filler, most students, alumni, employers, and bystanders, cannot get their heads around the meaning or usefulness of alternative measures. 

Fortunately, Larry Kramer's comments have served up an opportunity to grasp some of the limitations and folly of the current dominant method of ranking law schools. (And by the way, I am certain that Larry Kramer knows most of what I am about to write--he definitely understands the math.  He was making comments for public consumption.  Like Kramer, I am trying to make Indiana Law #1 in the nation, albeit not in US News sense. Every faculty member at every law school ought to share this aspiration.)

The Research Question: What will it take for Stanford Law School to be ranked #1 in the U.S. News Law School rankings?

Andy Morriss and I annually construct a simulation model of the US News rankings.  It routinely explains 99.5% of the variance in the actual rankings, and it enables us to test endless "what if" scenarios.  So let's load the dice and make some really extravagant assumptions:

  • Academic Reputation (25% of the input formula).  Increase Stanford's Academic Reputation from 4.7 to a perfect 5.0 (surpassing Harvard and Yale, who languish at 4.8). 
  • Lawyer/Judge Reputation (15%). Increase the Lawyer/Judge Reputation from 4.8 to a perfect 5.0 (breaking their current 4.8 tie with Harvard and Yale).
  • UGPA (10%).  Increase median UGPA from 3.88 to 4.0 (Harvard and Yale are at 3.89 and 3.9 respectively).
  • LSAT (12.5%).  Increase the median LSAT from 170 to 180 (blowing past the 173 medians at Harvard and Yale).  This assumption is somewhat absurd because there are not enough perfect 180 scores to produce this median at any law school.

Surely, giving Stanford a perfect score on 62.5% of the US News weighting formula will make Stanford #1, right?  It turns out, the answer is no.  Yale still beats out Stanford by a hair.  Stanford would, however, finally muscle ahead of Harvard for #2.

It is fair to ask, what is it about the US News ranking formula that produces these peculiar outcomes?  The answer is standardization of the underlying inputs. In order to make things like library books, LSAT scores, and employment figures commensurable, US News converts the underlying arrays into standard deviation units where the mean is roughly equal to zero and approximately 66% of the input scores fall within one standard deviation above or below the mean.  The US News weighting formula is then applied to each USN input and the weighted inputs are summed to produce the final US News score.

Many of the underlying input distributions, however, do not reflect a typical normal distribution (i.e., bell curve).  They are skewed.  The reputation variables are roughly normal, and therefore they are unimportant--or, more accurately, unlikely to strongly influence school movement.  Likewise, UGPA and LSAT have a natural cap (4.0 and 180) that limits outlier scores.  And outliers are what skew distributions.

The biggest "uncapped" input variable is direct per student expenses at 9.75% of the input formula.  In theory, there is no limit to how expensive legal education can be.  Yale, it turns out, spends over $100,000 per student, not counting financial aid, which is a separate variable accounting for 1.5% of the input formula.  In contrast, Harvard and Stanford spend only $80K+ per year per student.  In standard deviation units, that translates into 5.8 for Yale versus 4.2 for Harvard and 4.5 for Stanford.  So Stanford has a 1.3 standard deviation gap to close.  Reputation, LSAT, and UGPA are not enough to overcome this deficit.


My back of the envelope calculations suggest that a check for $350 million ought to be enough to produce enough endowment income to eclipse Yale in the US News rankings.  This assumes that the money is used for things like books, more faculty, and higher salaries for everyone.  If the money is spent on student scholarships, however, Stanford would need a check for roughly $1.8 billion to be #1.  Again, these are the idiosyncrasies of the dominant method of law school rankings.

Stanford alumni are well heeled.  And, like all of us, they want to be #1. But here is my my advice: Before you write your check to give Stanford faculty a big pay raise and a lower teaching load, or give some rich kid with a 180 LSAT a free legal education, including living expenses, consider other investment opportunities. $350 million would go a long way to solving the AIDS epidemic an Africa.  $1.8 billion could provide life-altering educational opportunities for children mired in poverty.

The legal profession, especially our students, have some big problems at the moment.  And society's are even larger.  The best law school is one that prepares its students to solve these problems.  This requires a careful balance of innovative teaching and scholarship.  The U.S. News rankings don't capture these metrics.  In fact, they obscure them and create incentives for truly destructive behavior.  By and large the deans are trapped.  From my own perspective, I don't think even one law school in the US News Tier 1 has reached even 10% of its potential to educate and solve problems.  Too many one-professor silos.  Too much ego.

I am sorry to moralize.  But someone needed to say it.  Let's focus on some problems worth solving.  At the end of the day, it will be worth it.

July 31, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, July 30, 2010

Client Interests Live On For Conflicts Purposes

In a case of first impression, the Oregon Supreme Court held that an attorney violated the former client conflict-of-interest rules notwithstanding the death of the client. The attorney had represented a client in a loan transaction. After her death, he represented the lender in claims against the client's estate. The court noted a dearth of authority on the subject and reasoned

The wording of those [former client conflicts] rules focuses on the interests of the former client.  That focus supports the Bar's position that, because a client's interests can and often do survive a client's death, the rules' protections extend to a former client even after his or her death.  But it is not just any interests of the former client that must survive.  In the context of the disciplinary rule, it is the former client's interests that pertain to the matter in which the lawyer previously represented the former client.  It is those interests that must survive the former client's death.

The rules also require that the former client's interests "are" in actual or likely conflict with (DR 5-105(C)) or materially adverse to (RPC 1.9(a)) the current client's interests.  Accordingly, the attorney must assess whether the pertinent interests of the deceased former client will be adverse to the interests of the subsequent client during the subsequent representation.  That is, the proper analysis is not whether the interests of the former and current client were adverse during the former client's lifetime, but whether the surviving interests of the former client are adverse to the current client during the subsequent representation.  

In sum, we conclude that, pursuant to DR 5-105(C) and RPC 1.9(a), an attorney is prohibited from engaging in a former-client conflict of interest even when the former client is deceased, as long as the former client's interests survive his or her death and are adverse to the current client during the subsequent representation.  Having determined that a deceased client may be a former client for purposes of the former-client conflict-of-interest rules, we turn to whether the Bar proved the necessary elements under those rules.

The court found that the elements of the offense were established.

The attorney also engaged in unrelated misconduct in which a document was recorded by use of a page from another document without authorization. The attorney was suspended for 150 days.

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

From Censure To Disbarment

The Pennsylvania Supreme Court has ordered the disbarment of an attorney whose bar discipline started with a public censure. In Pennsylvania, the attorney must personally appear to be censured. When the attorney failed to appear, a second proceeding was brought for that failure which resulted in a suspension of a year and a day.

The attorney had applied for a position as a paid arbitrator with the Philadelphia Court of Common Pleas prior to the suspension order. The position required that the arbitrator be a member of the bar in good standing. When the suspension was issued, the attorney failed to comply with notification obligations and did not advise the appointing officials of her changed status. The attorney was appointed to more than 50 arbitration panels and presided in eight of them.

A public censure that blossomed into a disbarment. (Mike Frisch)

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

The Do's And Dont's Of Judge's Do's And Dont's Seminar

A judge may properly conduct a seminar on the "do's and dont's" of practice, according to a recent opinion of the Florida Judicial Ethics Advisory Committee. The committee recited the facts set forth in the request for the opinion:

The Inquiring Judge asks for an opinion as to whether it is appropriate for a judge to present a seminar for attorneys discussing the “do’s and don'ts of trying a case and arguing to a judge.”  According to the judge, the topics will be addressed from the point of view of both plaintiff and defense counsel in civil and criminal cases and will include the “do’s” and “don'ts” of framing jury instructions; delivering voir dire, opening statements, direct examinations, cross examinations and closing arguments; using discovery depositions in civil and family cases as substantive evidence; and using preserved testimony by video as substantive evidence.  The judge indicates no intention to accept a fee for presenting the seminar, which may be presented live or recorded and posted on the circuit’s website for viewing.  The judge adds that the seminar may be advertised by The Florida Bar.

And the opinion:

Based on the information provided, presentation of the seminar described by the Inquiring Judge is the type of activity promoted under Canon 4B.  As a matter of course, we remind the Inquiring Judge that in undertaking any quasi-judicial activity, to be mindful not to cast reasonable doubt on the judge’s capacity to act impartially; undermine the judge’s independence, integrity, or impartiality; demean the judicial office; permit any interference with the proper performance of judicial duties; or appear to a reasonable person to be coercive. 

(Mike Frisch)

July 30, 2010 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Becoming a Law Professor: A Candidate's Guide

Posted by Jeff Lipshaw

Brannon-denning Several years ago, I published a little essay about making the leap into tenure-track legal academia well after the time in which most long-standing faculty members would have expected one's theoretical and scholarly synapses to have burned away.  Simultaneously, Brannon Denning (Cumberland, left) and Marcia McCormick (St. Louis, right) were preparing a book manuscript on what it would take to become a law professor "the hard way," i.e., if you didn't have the usual elite law school-law review editor-Court of Appeals clerkship pedigree.  Brannon and Marcia invited me to join their project and it quickly turned into an all-purpose guide for aspiring law professors, accumulating much of the wisdom and lore that you can find in various places on the web. Mmccor20

Thanks primarily to Brannon's perseverance, we got the interest of ABA Book Publishing, and Becoming a Law Professor:  A Candidate's Guide will hit the streets in just a few weeks.  Rick Paszkiet, our editor at the ABA, has graciously allowed us to post the Table of Contents and the introductory chapter on SSRN.

Here's the abstract from SSRN:

This is the Table of Contents and the Introduction to a forthcoming book from the American Bar Association. The authors provide detailed advice and resources for aspiring law professors, including a description of the categories of law faculty (and what they do), possible paths to careers in the legal academy, and "how to" guides for filling out the AALS's Faculty Appointments Register, interviewing at the Faculty Recruitment Conference (the "meat market"), issues for non-traditional candidates, dealing with callbacks and job offers, and getting ready for the first semester on the job.

We have had a nice response from the pre-publication readers, and Larry Solum has contributed an insightful forward, which he has posted separately on SSRN:  The New Realities of the Legal Academy.  Here's Larry's abstract:

This short paper is the Foreword to Brannon P. Denning, Marcia L. McCormick, and Jeffrey M. Lipshaw, Becoming a Law Professor: A Candidate's Guide, American Bar Association, Forthcoming.

One of the great virtues of Denning, McCormick and Lipshaw’s guide is that it reflects the changing nature and new realities of the legal academy. Not so many years ago, entry into the elite legal academy was mostly a function of two things—credentials and connections. The ideal candidate graduated near the top of the class at a top-five law school, held an important editorial position on law review, clerked for a Supreme Court Justice, and practiced for a few years at an elite firm or government agency in New York or Washington. Credentials like these almost guaranteed a job at a very respectable law school, but the very best jobs went to those with connections—the few who were held in high esteem by the elite network of very successful legal academics and their friends in the bar and on the bench. The not-so-elite legal academy operated by a similar set of rules. Regional law schools were populated by a mix of graduates from elite schools and the top graduates of local schools, clerks of respected local judges, and alumni of elite law firms in the neighborhood. In what we now call the “bad old days,” it was very difficult indeed for someone to become a law professor without glowing credentials and the right connections.

But times have changed. When the Association of American Law School’s created the annual Faculty Recruitment Conference (or FRC) and the associated Faculty Appointments Register (or FAR), the landscape of the legal academy was forever changed. The change was slow in coming. For many years, candidates were selected for interviews at the FRC on the basis of the same old credentials and connections, but at some point (many would say the early 1980s), the rules of the game began to change. In baseball, a similar change is associated with Billy Beane, the manager of the Oakland Athletics, who defied conventional wisdom and built winning teams despite severe financial constraints by relying on statistically reliable predictors of success. The corresponding insight in the legal academy (developed by hiring committees at several law schools) was that the best predictor of success as a legal scholar was a record of publication. It turns out that law school grades, law review offices, and clerkships are at best very rough indicators of scholarly success. But those who successfully publish high quality legal scholarship are likely to continue to do so.

This foreword explores the implications of the new realities of the legal academy for candidates seeking to become law professors.

Take a peek at the SSRN teasers and look for the book!

July 30, 2010 in Straddling the Fence, Teaching & Curriculum | Permalink | Comments (4) | TrackBack (0)

Thursday, July 29, 2010

Four Lawyers And A Divorce

The Illinois Administrator has filed a complaint alleging misconduct on the part of attorney who represented an administrative law judge in a marriage dissolution. Both parties in the divorce case were lawyers.

The complaint charges that, after over a year of representation, the attorney and client had a disagreement over the terms of settlement while engaged in a court-supervised settlement conference. While a settlement was reached orally, the parties still disagreed when attempts were made to reduce the terms to writing. Shortly thereafter, the attorney sought and was granted leave to withdraw from the case.

The client then sought to set aside the oral settlement, claiming that the attorney had not provided sufficient information about the terms and had coerced her into accepting an agreement.

Opposing counsel then contacted the attorney. Here the real problems start. According to the complaint, the attorney told opposing counsel that she had evidence to refute the coercion claim. She accessed her firm's records and obtained e-mail correspondence between the client and the law firm over a 15 month period. The attorney directed an associate to hand-deliver "at least 519 pages" of the printed copies to opposing counsel, including:

  1. An e-mail message sent by [the client] to Respondent and the associate] on April 18, 2007, in which [the client] provided information regarding her then-current assets;

  2. An e-mail message sent by [the client] to Respondent on April 22, 2007, in which [she] urged Respondent to pursue additional discovery in the case, including by seeking additional information regarding [the husband's] income;

  3. An e-mail message sent by [the client] to [the associate] on May 7, 2007, in which [she] inquired about any strategic benefits to be derived from bifurcating the trial in her divorce case;

  4. An e-mail message sent by [the client] to Respondent and [the associate] on May 12, 2007, in which [she] set forth a proposal for settling marital debt issues;

  5. An e-mail message sent by [the client] to Respondent on May 15, 2007, in which [she] set forth her positions regarding a proposed division of marital assets, child support, maintenance, and college expenses for the [parties] child;

  6. An e-mail message sent by [the client] to Respondent on May 17, 2007, in which [she] discussed issues relating to maintenance, child support, marital property division, debt allocation, and tuition; and

  7. An e-mail message and its attachment sent by [the client] to [the associate] on May 20, 2007, consisting of a document authored by [her] and setting forth her versions of various events during her marriage; her thoughts, impressions, and mental states regarding those events; and her concerns regarding her future income and employment.

Opposing counsel shared the e-mails with his client, who had a paralegal review and summarize the information. At the hearing to set aside the settlement, opposing counsel produced the e-mails to the wife's new attorney. The judge barred the use of the e-mails as evidence at the hearing.

The attorney is alleged to have violated the duty of confidentiality by revealing client confidences or secrets without client consent. There remains the issue of the behavior of the opposing counsel and client in accepting, reviewing and attempting to use the e-mails. (Mike Frisch)

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

All In the Family

The Massachusetts Supreme Judicial Court has reinstated a disbarred attorney over the objections of Bar Counsel. The court described the misconduct that led to the sanction:

...the petitioner's reflected in the indictments to which he pleaded guilty, occurred in 1990 and 1992 when he forwarded information he knew to be false to insurers in order to win settlements for two of his personal injury clients. The hearing panel also assessed the environment in which this conduct occurred. While the law firm eventually bore his name, the petitioner was new to the practice of law when he joined the firm in 1986. The firm was established by his father and tightly controlled by his more experienced older brother, James Ellis, Jr., both of whom were also indicted for fraud and conspiracy. As the prosecutor made clear to the judge at the petitioner's plea and sentencing, the petitioner's conduct paled in comparison to that of his brother, and he was a considerably less significant actor in the crimes committed at the Ellis law firm, playing a supporting role in the frauds that the firm's clients and James Ellis, Jr., perpetrated on insurers.

As to reinstatement:

The hearing panel...found that the petitioner had demonstrated the competency and learning required for admission to practice law. In addition to taking and passing the multistate professional responsibility examination, the petitioner had taken a number of Massachusetts continuing legal education courses and had undertaken to keep current in his legal reading sufficient to assist him in transitioning into the practice of law in specialty areas different from those in which he practiced at Ellis & Ellis. More particularly, the petitioner, on reinstatement, intends to focus his practice on immigration law, Social Security disability law, District Court criminal defense, and debt collection, areas of practice in which he has arranged for mentors to assist him. The petitioner has also secured two experienced attorneys with whom he is acquainted to act as his ethical advisers.

Perhaps the most challenging hurdle for the petitioner to overcome is the effect and perception of his reinstatement on the public and the bar. Matter of Daniels, 442 Mass. 1037, 1038 (2004), and cases cited. In this regard, the hearing panel took note not only of his postdisbarment conduct and testimony, but also of a number of letters sent from neighbors, work supervisors, and an attorney regarding the petitioner's current, rehabilitated reputation in the community. In addition, in recommending reinstatement, the hearing panel suggested certain conditions, none of which has been objected to by the petitioner, and all of which were adopted by the board. These conditions are directed toward assuring the public that the petitioner is prepared and capable of reentering the practice of law and steering clear of the problems of his past. Specifically, the panel recommended the following conditions:

"(1) prior to reinstatement, the petitioner shall take a course recommended by bar counsel concerning the proper method of handling an [Interest on Lawyers Trust Account (IOLTA) ] account; (2) the petitioner shall sign an agreement with bar counsel to have his IOLTA account audited for a period of two years at his cost, and shall use for his law practice accounting and auditing an accountant other than Mr. Kyriakis (or any member of his firm), who has been and continues to be his father's accountant; (3) for a period of five years, the petitioner shall not engage in practice with any family member or former member of the Ellis & Ellis firm, or the James N. Ellis, Sr. & Associates firm, nor shall he employ in his law practice any employee of his father's firm or his sister's office employees; (4) the petitioner shall not engage in any personal injury or workers' compensation cases, and shall not represent any family members for a period of five years; (5) the petitioner shall purchase and maintain malpractice insurance in a minimum of $1,000,000 per claimant with a deductible not to exceed $10,000 for a period of five years; and (6) within the next two years, the petitioner shall take forty hours of [continuing legal education] courses in the areas of the law in which he intends to practice."

We agree with these conditions. They convey in part the message that the petitioner's reinstatement is decidedly not a reopening of the disgraced law practice of Ellis & Ellis. They also confirm the seriousness with which the board and this court take their obligation to assure the protection of the public interest above all else.

Having demonstrated to the board that he possesses the current moral qualifications and learning to practice law, and that his admission to the bar would not be detrimental to the public interest, the petitioner is reinstated with the aforementioned conditions.

The case is Matter of Ellis, decided July 29, 2010. (Mike Frisch)

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

No Disbarment For Boorish Behavior

The New Jersey Supreme Court today imposed a one-year suspension that will continue until the attorney complies with certain conditions in a case that "dealt mainly with charges of sexual bartering." The attorney had been previously disciplined four times for misconduct that primarily involved failures to communicate with clients. He admitted in this matter that he had practiced while suspended for failure to pay his annual assessment and had not properly maintained law office records.

The remaining charges involved allegations that he offered discounted legal services or refunds to three female clients and the daughter of a fourth client "in the context of suggestions that they perform certain acts with him or with other women while he watched." He told one lesbian client that her lesbianism was caused "by a bad experience with the male sexual organ," that she was "looking good," and that he "would return $600 of fees she had paid him if she joined him on the office couch." He claimed that these and other similar comments were made in jest.

The attorney's explanation was rejected  by a district ethics committee and the Disciplinary Review Board. The DRB proposed a three-month suspension with two dissenters favoring a six-month sit down. The court here took a sterner view, although the court majority concluded that disbarment was "disproportionate...for his boorish, insensitive and offensive, but hardly criminal, conduct."

Justice LaVecchia, joined by Justice Albin, would disbar: "A zero-tolerance policy toward attorneys who prey on clients, whether financially or as [he] has done, is needed to protect the public and the reputation of the profession." (Mike Frisch)

July 29, 2010 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Anger Mismanagement

A Greenville, Tennessee attorney was suspended for 33 months with 45 days of active suspension and probation for the remaining time. The attorney must remain compliant with the Lawyer Assistance Program during the period of probation.

The offense:

...[the attorney] appeared for a trial and learned that the opposing party intended to contest the matter. [He] became irate. He threw a cup of coffee accross the courtroom, cursed loudly, and then left the courtroom. As he went down the stairs toward the lobby, [he] pulled a handrail from the stairwell causing damage to the courthouse.

He was charged with vandalism and sentenced to 11 months, 29 days in jail, with all time suspended and unsupervised probation. He must continue mental health counseling as part of the disciplinary probation. (Mike Frisch)

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

Attorney Charged With Failure To Repay Student Loans

The Illinois Administrator has filed a complaint alleging that an attorney failed in bad faith to repay his student loans for a graduate business degree obtained after he graduated from the University of Chicago Law School in 1994. From 2006-2006, the attorney held several positions in business including a stint as president of Gear 7 in Los Angeles. The complaint alleges that the attorney received over $78,000 in loans in 2006 and signed two promissory notes. He allegedly has not made any payments on either note.

In 2007, he was hired by DLA Piper at a salary of $190,000 a year. In 2008, he was paid $220,000 plus a bonus of nearly $15,000. He was terminated in February 2009 but paid through May 30 of that year. In addition to the loan repayment charges, it is alleged that the attorney failed to respond to the Administrator's lawful demands for information about the allegations. (Mike Frisch)

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

Wednesday, July 28, 2010

Report But No Recommendation

The District of Columbia Board on Professional Responsibility has issued its report in the G. Paul Howes matter. The case involves findings that the attorney, while an Assistant United States Attorney prosecuting high-profile drug and murder conspiracy cases, improperly used witness vouchers to pay individuals and violated the duty to disclose potentially exculpatory evidence. Our prior coverage, linking to an article in the National Law Journal, is linked here.

The real news is that (for only the second time in history, I believe) there is no majority recommendation as to the appropriate sanction. There are four votes for disbarment, three votes for a three-year suspension with automatic reinstatement and two votes for a one-year suspension. Thus, there is no presumptively correct sanction from the board to which the D.C. Court of Appeals owes deference. The court by rule defers to the board on sanction so long as the recommended disposition is consistent with prior sanctions for comparable conduct and not otherwise unwarranted.

Here, the court has no recommendation to which any deference is owed. To my knowledge, the last time there was no majority board report was when the board split 4-4 as to the proper sanction for intentional misappropriation. The court eventually went en banc in that case (In re Addams) and held that disbarment was the proper sanction for such misconduct absent exceptional circumstances.

At the time (July 1988), there were cynics (count me among them) who thought the split was an intentional result designed to pass the buck to the court. I myself like the idea of the court taking more responsibility for setting the standards for ethical attorney behavior in the District of Columbia, so I am not deeply offended by the concept. Indeed, if I had my druthers, the first procedural rule I would abolish is the deference rule, which is grounded in the (in my view erroneous) assumption that practicing lawyers know more about sanctioning attorneys then the judges of the court.

The sound you hear in this case may well be the sound of that buck again getting passed.

Stay tuned.

Update: You should be able to now access the board report by going to this link and searching under Paul Howes. (Mike Frisch)

July 28, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Private Matter

The Maryland Court of Appeals has held that fees awarded in debt collection matters are not determined by the lodestar method. Homeowners associations had sought review of fee awards arguing  that the method was appropriate. The court here disagreed, noting that the litigation was "strictly a private matter and does not address any broader public ills. " Thus, the starting point in determining an award in a fee-shifting situation is Rule 1.5 of the Rules of Professional Conduct. (Mike Frisch)

July 28, 2010 in Billable Hours, Economics, Law & Business | Permalink | Comments (0) | TrackBack (0)

Don't Mess With Texas

The New York Appellate Division for the First Judicial Department affirmed the denial of a motion to move a legal malpractice action to Texas. The case involves allegations that the defendant law firm identified the wrong entity entitled to payment from the client, causing the client to pay the wrong entity.

A dissent makes a powerful argument in favor of Texas, recounted in part below:

The motion court never expressly applied the factors that go into deciding a forum non conveniens motion but seemed to recognize that this case had little connection to New York. Instead, the court denied the motion because the parties represented that the Texas statute of limitations was shorter than New York's and defendant did not agree to the application of the borrowing statute. Nevertheless, this case clearly does not belong in New York. Defendant maintains an office here, but none of the attorneys at the New York office were involved in the events underlying this case. Plaintiffs' principal places of business are now in Connecticut and virtually all the underlying events occurred, for the most part, after plaintiffs had moved their offices. That plaintiffs previously maintained places of business in New York is not relevant, because the documents and witnesses are no longer within this jurisdiction.

More important, there will likely be a need for testimony from non-party witnesses, such as individuals from the two Apollo entities, who are located in Texas. Plaintiff argues that there will be no need to call anyone from Apollo. I cannot agree. Rather, testimony from Apollo witnesses may be integral to determine whether defendant law firm was negligent in confusing the Apollo entities. For instance, the determination could depend on what someone at one of the Apollo entities communicated to defendant. The lead attorney on the underlying transaction, who lives in Texas, no longer works for defendant, and as with the Apollo witnesses, it is unlikely a New York court itself can compel his live testimony without assistance from a Texas court. This case thus represents an unnecessary burden on the New York courts. In addition, all records that either Apollo entity has are located in Texas. Further, the events pertinent to this case all occurred outside New York, the documents are in Texas and, as this case concerns what defendant did or did not do, all of the relevant witnesses are in Texas. Finally, Texas certainly has an overriding interest in regulating the conduct of the lawyers admitted in that state. (citation omitted)

(Mike Frisch)

July 28, 2010 in Law & Business, Law Firms | Permalink | Comments (0) | TrackBack (0)

Release Me

The Maryland Court of Appeals has suspended an attorney for 90 days for misconduct described in the headnote to the decision:

 While representing Garcia on an unrelated matter, [the attorney] was approached by Dianne L.Coston, the grantor of a mortgage to which Roberto Garcia was a successor in interest. In order for Coston to refinance her property, she was required to pay off her mortgage, and
[the attorney] agreed to accept Coston’s check for payment on behalf of Garcia. The money was placed into a trust account, on which [the attorney] later drew a check in the amount of Coston’s payment, payable to cash. [The attorney] gave this check to Garcia, yet Garcia never signed a release for the mortgage, nor did [the attorney] ever prepare one. Coston complained to the Attorney Grievance Commission of Maryland (“AGC”) that [the attorney] had not obtained a release from Garcia. When AGC investigated the matter, [the attorney]  knowingly misrepresented to both the AGC and Coston that he had prepared a release and sent it to his client, prompting the AGC to dismiss the matter. Three years passed, and Coston still did not receive a release. When the AGC reopened the investigation, [the attorney] once again lied about preparing a release.

Three justices would impose a suspension of six months. (Mike Frisch)

July 28, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 27, 2010

After Golf

A recent complaint filed by the Illinois Administrator alleges ethical violations based on the following facts:

On May 28, 2008, while playing golf near Portage, Michigan, Respondent consumed four beers and four shots of bourbon.

Respondent entered his automobile after leaving the golf course property, and entered South 11th Street in Prairie Ronde Township, Michigan, a public roadway.

Shortly after Respondent entered South 11th Street, his automobile struck Jared Sweet ("Sweet"), who was riding a bicycle along the road. Respondent's automobile knocked Sweet to the ground and dragged him several yards, inflicting upon him a compound bone fracture and skin abrasions.

After striking and dragging Sweet, Respondent's automobile left the roadway and entered an adjoining field. Respondent then reversed back onto the roadway, told a bystander that someone had been hurt "back up the road," and drove away from the scene.

Prior to leaving the scene of his collision with Sweet, Respondent did not identify himself or offer to render assistance to Sweet. Respondent was arrested later that day.

The complaint further alleges that the attorney pleaded guilty to criminal charges and was ordered to pay restitution to the victim. (Mike Frisch)

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

PTSD Mitigation

An attorney whose serious misconduct was attributed to post traumatic stress disorder in the wake of 9/11 was suspended for one year by the New York Appellate Division for the First Judicial Department. The Departmental Disciplinary Committee had sought a suspension of at least three years. The court discussed the mitigating evidence:

...respondent raises a number of points about his personal background. First, as confirmed by both mental health experts, while growing up he suffered greatly under an emotionally and physically abusive father and passive mother. According to the experts, this set the stage for the onset of severe PTSD after 9/11, manifested by feelings of loss of control, anxiety, panic attacks and nightmares.

Respondent was also hampered in meeting his professional obligations in the wake of 9/11 by the location of his law office, which was 100 Church Street, in the immediate vicinity of the World Trade Center. Although he was not at his office at the time of the attack, he had only limited access to it for many months thereafter. When he was given access to the office during this period, he was escorted by the police up 18 flights of stairs, in the dark (there was no power), and he was given only a few minutes to collect files that had survived the attack. His computer, on which the electronic ledger of his IOLA account had been stored, was destroyed, as were most of his files. Moreover, he did not receive bank statements for several months due to problems with mail service.

As to sanction:

As to the matter of the sanction to be imposed, there are cases in which suspension from the practice of law for a substantial period of time is the appropriate sanction for even nonvenal misappropriation of funds. For example, in Matter of Tepper, (286 AD2d 79 [2001]), we imposed a two-year suspension for misconduct including "careless and nonvenal invasions of client funds for personal or business uses" (id. at 81) where, although "there was no evidence of venality and no losses were suffered by any of the parties affected by respondent's actions, nevertheless respondent also demonstrated flagrant irresponsibility in his bookkeeping and check writing." Under the particular circumstances of this case, we find that the appropriate sanction is a one-year suspension from the practice of law. (citations omitted)

(Mike Frisch)

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

No Sanction For Campaign Contributions

The New Jersey Supreme Court has held that a part-time municipal court judge is not subject to discipline for his law partner's political contributions from the law firm's joint business account. The Advisory Committee on Judicial Conduct ("ACJC") had recommended that the judge be publicly admonished notwithstanding the fact that he was not aware of the contributions at issue.

The court here found that there was not clear and convincing evidence of a violation and referred the matter to the Professional Responsibility Rules Committee and the Advisory Committee on Extrajudicial Activity to develop rules to implement this decision:

Among other things, the Committees should recommend changes to the [Rules of Professional Conduct] to ensure compliance by part-time municipal court judges as well as other lawyers in thier respective law firms so that those attorneys who practice with part-time municipal court judges are likewise barred from making political contributions from a firm's business accounts. The court agrees with the ACJC's First Amendment analysis. First Amendment rights of lawyers who practice with part-time municipal court judges are plainly not being limited because those lawyers may continue to make political contributions from personal funds.

(Mike Frisch)

July 27, 2010 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

License Revoked After 57 Years In Practice

There is something deeply depressing about a bar discipline matter that results in the ultimate sanction of disbarment of an attorney after 57 years of practice.

The Wisconsin Supreme Court accepted the consent revocation of an attorney who had engaged in serious misconduct in two estate matters. The court agreed with the Office of Disciplinary Counsel that an order of restitution was appropriate in both matters as well as in a third bar complaint.

Milwaukee World reports that the attorney had been incarcerated for contempt in failing to turn over assets of one of the estates. ("Office hours now visiting hours for jailed attorney"). This report on the contempt matter from provides some additional details:

According to a motion filed by his attorney, Richard Frederick, [the attorney] "is in financial distress." He owes judgments of about $30,000 to a bank and a law firm, lost the heat in his office -- Christian Legal Services -- over unpaid bills, and nearly lost his longtime Brookfield home to foreclosure.

[The attorney] has "agreed in principle" to surrender his law license, but needs to wind up his practice first, Frederick wrote. He declined to talk about the case with a reporter.

A Wisconsin lawyer for more than 50 years, [the attorney] had built a reputation around the Milwaukee County Courthouse as "the grand master of probate," someone who would take on the messiest cases others couldn't or wouldn't handle, mostly small estates with muddied issues of beneficiaries and heirs. Many such cases don't pay much, if anything, but are considered a favor to the courts and part of a lawyer's professional obligations.

That trust he built up over the years may have allowed his practices to go unnoticed by clerks and judges until a lawyer in a much larger estate, worth about $1.8 million, began encountering stall tactics from [the attorney] and a growing paper trail of misused estate assets that led to overseas accounts of "church bonds," according to [the attorney].

(Mike Frisch)

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

Law Library Thefts Lead To Disbarment

The web page of the Massachusetts Board of Bar Overseers reports on a recent discipline case:

The respondent...was admitted to the bar on June 19, 1985. In 2006 and 2007, he was an employee of the Lawrence law library. Between November 2006 and June 2007, the respondent converted to his own use $7,250 from funds belonging to the law library by making unauthorized withdrawals from the law library’s bank account.

On November 6, 2009, the respondent admitted to sufficient facts in the Newburyport District Court to five counts of larceny over $250 in violation of G. L. c. 266, § 30(1). The case was continued without a finding until November 7, 2011, with conditions that the respondent make restitution, perform 200 hours of community service, and stay away from the law library. An admission to sufficient facts constitutes a conviction as defined by S. J. C. Rule 4:01, § 12(1).

The respondent was temporarily suspended from the practice of law on January 20, 2010. He did not comply with order of temporary suspension.

The discipline imposed was disbarment. (Mike Frisch)

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