Legal Profession Blog

A Need For Study And Reform

Thanks to Lucian Pera for sending this announcement of a call for a long overdue study of bar discipline processes

It's time for the American Bar Association to launch a fresh, high-level effort to renew the US lawyer discipline system for the 21st century.

There has been a steady drumbeat of discussion recently about US lawyer regulation. Much of the debate has surrounded questions of nonlawyer ownership of law firms, fee-sharing with nonlawyers, and licensing of legal para-professionals. These are important discussions, but that's not what we propose.

Instead, as lawyers who have practiced and worked in the lawyer regulatory system for many years—more than 200 years collectively—we believe it is time for the ABA, the traditional convener and leader on lawyer regulation, to launch a once-in-a-generation review of the mechanics, structure, and reach of lawyer regulation. It's time to revisit the infrastructure of lawyer regulation, rather than the substance of ethics rules.

Some of us hold elected or appointed positions in the ABA. None of us speak in those official positions, for the groups we represent or work with, or for the ABA. We speak only for ourselves in our personal capacities. Still, we believe many in lawyer ethics and regulation share our view.

Like roads and bridges, the rules, procedures, enforcement tools, as well as the jurisdictional boundaries of lawyer regulation, need periodic maintenance. We believe the infrastructure of American lawyer discipline is overdue for an update.

Background: The Clark Committee & McKay Commission

The ABA has used its convening authority more than once for this purpose.

In 1970, the ABA's Special Committee on Evaluation of Disciplinary Enforcement, chaired by former U.S. Supreme Court Justice Tom Clark, which became known as the Clark Committee, spent three years studying lawyer discipline, only to find what it described as “a scandalous situation that require[d] the immediate attention of the profession.”

The Committee noted that “the prevailing attitude of lawyers toward disciplinary enforcement range[d] from apathy to outright hostility.” Moreover, “public dissatisfaction with the bar and the courts [was] much more intense than [was] generally believed within the profession.”

So much so that, “unless public dissatisfaction with existing disciplinary procedures [was] heeded and concrete action [was] taken to remedy the defects, the public soon [would] insist on taking matters into its own hands.”

The Clark Committee identified 36 problems in disciplinary enforcement and proposed solutions. The overall thrust was a call for the professionalization of lawyer disciplinary enforcement. The ABA in the ensuing years led jurisdictions in the effort to bring the Committee's vision to reality. Within five years, half the jurisdictions in the US employed professional disciplinary counsel in their discipline systems, replacing the former disciplinary structure that had been composed purely of lawyer volunteers.

Over the two decades following the 1970 Clark Committee report, the ABA framed out the structure it had envisioned. It enacted model procedural guidelines for lawyer discipline that became the ABA Model Rules for Lawyer Disciplinary Enforcement as well as model sanctions standards that became the ABA Standards for Imposing Lawyer Sanctions.

In 1989, the ABA launched its Commission on Evaluation of Disciplinary Enforcement to study current lawyer discipline and examine the implementation of the Clark Committee's recommendations. In honor of its first chair, former NYU School of Law Dean Robert B. McKay, the group became known as the McKay Commission. Its detailed recommendations, adopted by the ABA House of Delegates in 1992, carried forward the vision of the Clark Committee.

The McKay Commission confirmed the ABA's—and the profession's—view that judicial regulation of the profession is a paramount value. They surveyed the country's best practices in its recently professionalized lawyer disciplinary systems. Importantly, they expanded the structure of lawyer discipline to include several additional elements, all well known today, including alternatives to discipline, client protection funds, trust account overdraft notification, random audits of trust accounts, continued study of mandatory malpractice insurance requirements, lawyer assistance, and law practice management assistance.

The McKay Commission's recommendations are still relevant and should be updated and improved upon. The Standing Committee on Public Protection in the Provision of Legal Services (formerly known as the Standing Committee on Client Protection) has worked steadily to advocate for model rules designed to prevent lawyer misconduct and client harm and to compensate legal consumers when necessary. Rules designed to prevent the invasion of trust funds through audits and payee or overdraft notifications are examples of useful prophylactic regulation. Some jurisdictions’ requirements of written fee agreements in some instances, and assistance in resolution of client-attorney fee disputes are other examples of the expansion of the lawyer regulatory system beyond a purely prosecutorial model. Many of these changes have served the profession, clients, and the public well.

Trends Requiring Regulation

Thirty years on, it's time to update and improve upon this landmark work, in light of current circumstances and the experience of all our jurisdictions.

But today we face more than the need to update the current lawyer regulation system. The last generation has seen at least two major trends that require fresh attention to the infrastructure of lawyer regulation. Multi-Jurisdictional Practice

First, lawful, appropriate practice by lawyers across the borders of US jurisdictions has increased dramatically. Over the last several decades, the legal needs of clients—individuals, businesses, and governments—have increasingly become regional, national, and even international. Even the most local clients may have regular international suppliers. Domestic relations matters increasingly involve cross-jurisdictional issues that track clients’ moves to follow careers and family.

Because as lawyers we serve clients, lawyers’ practices and work are increasingly less limited by the boundaries of their state of licensure. Multi-jurisdictional practice, or “MJP,” has been authorized in some form in the overwhelming majority of US jurisdictions under versions of ABA Model Rule of Professional Conduct 5.5. An increasing number of lawyers are also licensed in multiple jurisdictions, and the ABA has just begun a new round of study of potential changes that might better reflect these new realities.

With those changes have come challenges for lawyer discipline in confronting lawyer misconduct involving multiple jurisdictions or lawyers misbehaving away from their home jurisdictions. Which rules apply? Which jurisdiction should initiate an investigation? Can clients and lawyers choose those rules? Which regulatory elements – trust account requirements, client protection funds – apply to lawyers practicing in multiple jurisdictions? And who pays for disciplinary investigation and prosecution of multijurisdictional misconduct when a lawyer may not even be admitted to practice in a jurisdiction investigating misconduct inside that jurisdiction? Disciplinary counsel need new approaches, maybe new procedural help, and possibly new structures to confront multijurisdictional misconduct with effective disciplinary enforcement.

Alternative Legal Service Providers

Second, the boundaries of law practice and the legal services business have blurred and expanded. Over the last thirty years, a whole new class of non-law firm businesses has been created. Sometimes called “alternative legal service providers,” or ALSPs, these businesses sell legal services to clients of law firms and law departments. These legal services are provided by temporary or contract lawyers, employed by the company (not by any law firm), and supervised by those law firms or law departments.

Some of these staffing companies are multi-national behemoths, rivaling the biggest BigLaw firms. Others provide temporary brief writers to individual lawyers. However they differ, they share one thing: they are not law firms, and they are selling legal services.

For a generation, they have thrived and grown, by and large serving client needs. They are only regulated today through traditional regulation of the lawyers who work for and deal with them. Is that sufficient? Or should lawyer regulation be broadened, as some have suggested, to more consciously regulate them?

Since the dawn of the internet, lawyer marketing has exploded into digital form, from lead generation to lawyer matching services. Many jurisdictions do nothing at all to separately regulate this activity, relying on the traditional lawyer advertising and solicitation rules. A small, growing number of jurisdictions have each taken their own path to regulate this activity, some requiring registration by these nonlawyer companies, others placing new regulations on lawyers who deal with them, and still others electing to not regulate these services at all. Should lawyer regulation encompass this new terrain more directly?

A few jurisdictions have also authorized other alternative legal service providers such as legal technicians, legal paraprofessionals, social workers, courthouse navigators, and more. Other jurisdictions are considering these options today. No national discussion has yet focused on how the regulation of these authorized providers should relate to the traditional regulation of lawyers.

Those who regulate lawyers and legal services need to survey, consciously, and intentionally, the changing boundaries of regulation. Should it expand? If so, how? Through new types of regulation of lawyers themselves? By bringing others under some form of regulation? If so, should lawyer regulators take on that challenge, or should there be other or new regulators?

Procedural Changes

Both as a part of periodic maintenance of our lawyer regulation infrastructure, and in the wake of the changes in how and where lawyers practice and who delivers legal services, a number of other subjects also need attention by the best minds on lawyer regulation. Those include a number of issues concerning procedure in disciplinary proceedings, including whether blanket confidentiality rules for investigations best serve the public or profession; who should decide contested proceedings; what burden of proof should apply; and what kind of discovery should be permitted.

The ABA Model Rules for Lawyer Disciplinary Enforcement provide jurisdictions a template for investigations and proceedings governing lawyer discipline. These model rules were adopted in 1989, and periodically tweaked, but no thorough review has been attempted in decades. Increasing cross-border practice, remote practice, and technology changes in the last 20 years require a review of these rules to assess if they are still the most effective and realistic approaches to investigating, adjudicating, and sanctioning lawyer misconduct.

Review of Professional Conduct & Sanctions Rules

While the ABA's core guidance on the substantive rules governing lawyer conduct—the ABA Model Rules of Professional Conduct—now serve as the model for ethics rules in every US jurisdiction, the ABA's model disciplinary enforcement rules  are out-of-date, and closely adopted by virtually no US jurisdiction. Ethics regulators deserve better, as do the clients, public, and lawyers they serve. On many particular issues, in fact, individual jurisdictions do better on one aspect or another of the rules or regulation. That success needs to be identified and spread to other jurisdictions.

The same is true for the ABA Standards for Imposing Lawyer Sanctions. These are guidelines most jurisdictions use more or less as sentencing guidelines for lawyer disciplinary proceedings. Their goal is greater fairness and consistency. They set baseline sanctions for specific kinds of disciplinary violations. They identify appropriate aggravating and mitigating factors that should or must be considered in imposing sanctions for violations of the disciplinary rules. Some jurisdictions mandate the use of these standards; some simply use them routinely; and some do not use them at all.

The Standards were last amended 30 years ago. They need to be re-evaluated in light of a generation of substantive rule changes, enforcement experience, and case law.

Related ABA models that also need review include the Model Rules for Lawyers’ Funds for Client Protection Funds and the Model Rules for Client Trust Account Records. The model client protection rules were last updated in 1989 and today struggle to address such issues as which jurisdiction's client protection fund should apply when a lawyer is admitted in more than one jurisdiction and how should funds work together to assure as much client protection as possible for a multi-state admitted lawyer.

The Model Rules for Client Trust Account Records were last amended in 2010. These trust account record rules similarly provide little guidance to lawyers on which rules should apply when a lawyer represents clients in more than one jurisdiction and the lawyer is admitted in more than one jurisdiction.

Next Steps

We submit that the ABA president should appoint a group of experts from all the relevant constituencies to survey the current landscape and experience of the last few decades. This review should include the more than 50 versions of disciplinary enforcement rules currently operating in US jurisdictions, as well as innovations in regulation US jurisdictions might adopt from other countries. This group should examine carefully the full scope and record of other regulatory approaches and should also reinforce the strengths in our current system. We strongly believe that those strengths, which include individual accountability, client-focused rules, and increasing attention to the prevention and redress of misconduct, must be carefully preserved and strengthened.

Those experts need to include veteran regulatory counsel from jurisdictions big and small, disciplinary defense counsel, academics who study lawyer regulation, client protection fund administrators, IOLTA program representatives, and ultimate regulators such as state supreme court justices. This group should review existing rules and changes in the profession and the legal services market to make recommendations to establish renewed and improved model standards for all jurisdictions. That's how ABA leadership in ethics and lawyer regulation has worked successfully for more than 100 years.

Conclusion

Your authors may each have their own tentative views, and those views are by no means uniform. But we all share the firm conviction that it's time to be conscious and intentional about defining the proper frontiers of legal professional regulation for the 21st Century, as well as about identifying and developing the tools regulators need for the new world.

To be crystal clear, we propose that this effort not consider any changes to the substantive ethics rules involving nonlawyer ownership or fee-sharing with nonlawyers. Those are entirely different debates we do not address here.

In the history of lawyer regulation in this country, no single organization has done remotely as much as the ABA to advance client and public protection and responsible and sensible regulation. In fact, the success of lawyer regulation in the US owes more to the ABA than any other organization.

It's time for the ABA to step up again and renew our lawyer regulatory system to meet the needs of the next generation.

Agreed.

In my view, one of the most pressing issues is the delay between complaint and final resolution. My own jurisdiction - the District of Columbia - is the poster child for inexcusable delay. (Mike Frisch)

A Milestone

This blog began in September 2006.

At the time, my interest was primarily in shedding light on bar discipline and advocating for transparency in the processes. 

Fortunately, or not, the sometimes unbelievable things that lawyers do brought us some attention. I've been told that the blog is like a car wreck in that it's hard to look away.

We were honored by be part of the inaugural class of the ABA Journal Blawg Hall of Fame.

The ABA Journal has been a major factor in our growth by often crediting us for bringing a story to their attention and linking to our coverage.

Many thanks.

While I'm never sure what to make of the Statcounter feature of the web page, it tells us that we are about to cross the five million mark for "page views."

Wow.

I must say I've learned some things in nearly 15 years of blogging.

First, I try not to humiliate a sanctioned lawyer or make light of their situation. My alleged sense of humor (particularly in the captions) sometimes runs counter to this desire .

Second, I try to think and reflect about what I am doing and saying before I hit "post."

There are many times that I decide not to draw attention to a situation that would only come to light because it is reported here.  Inflicting unnecessary misery for a few hits is a bad bargain.

Third , I have learned more about defamation law and section 230 than I ever cared to know.

I am eternally grateful to Ropes & Gray and Matthew Rizzolo for their superb and successful  pro bono defense of my First Amendment rights.

As you might imagine, lawyers in trouble do not as a rule appreciate the publicity. One of the worst aspects of the blog has been the frequent harassment that comes as a result.

My feelings in that regard are best expressed by Mink Stole as Connie Marble at the conclusion of rejecting job applicant Sandy Sandstone in the movie Pink Flamingos.

Thanks in particular to Alan Childress, who brought me into this project and has been a loyal friend.

Our Kismet was Hurricane Katrina, which  brought Alan to D.C. as a visitor from Tulane.

I do not think you will see me blogging for another 15 years but I do deeply appreciate the readership we have acquired, the friends we have made and the opportunity the blog has provided to allow me to have a small voice in the Court of Public Opinion. 

Mike Frisch

A New Year, A Sad Note

Happy New Year to any and all readers of this blog. 

We have been on line for over 14 years, sustained by the constant stream of bar discipline and legal ethics issues that arise.

The things that get lawyers in ethical hot water (sometimes quite literally) appear to have found a niche in the harsh and unforgiving blogging world. 

I note with sadness the recent passing of former Attorney General Richard Thornburgh, who was perhaps best known in legal ethics circles for the Thornburgh Memorandum dealing with state bar regulation of federal prosecutors.

I used to do some ethics training at what was then Kirkpatrick & Lockhart when he was practicing there. I guess he needed some ethics CLE as he attended one of the two-hour sessions.

He came up to me afterward, introduced himself and thanked me for the talk. We chatted for maybe 15 minutes.

I came away deeply impressed with with him as a person and former public servant.

Note: I was tangentially involved in the case that litigated the Thornburgh memo.

The complaint came to me at the D.C. Bar Counsel and I learned that the attorney was admitted only in New Mexico.  I called my colleague Ginny Ferrara and sent it along.

Ginny always said that she would be best remembered for the ensuing litigation - United States v. Ferrara - that made her sound like a drug dealer.

Editor's note: The regulation glitch that exempted D.C. AUSAs from the court's jurisdiction  if not admitted in D.C. was later fixed. (Mike Frisch)

The Ethics Of Blogging

A July 6 decision from the Wisconsin Supreme Court reversing Marquette University's decision to terminate  a tenured faculty member has generated diverse commentary from applause (The National Review) to dismay  (The Chronicle of Higher Education)

 Justice Ann Walsh Bradley in dissent touches on a point that, as a blogger with some audience, I consider before clicking on the "publish" button.

 Missing from its opinion are key facts that informed [Professor] McAdams' action. After publishing the blog post, McAdams actively promoted it to local and national media outlets. The record reflects that McAdams did so by "distributing copies of the audio recording to interested journalists and bloggers, posting follow-up stories linking back to the Nov. 9 post, creating a category of posts linked to [junior colleague] Abbate by name, and arranging to appear on radio and television interviews about the story and subsequent controversy." McAdams wrote that he was aware that "'[w]hen one does something that gets national publicity, some jerks are going to say nasty things."

That prophecy was fulfilled here. Within hours of the blog post, Abbate started receiving negative emails, which only multiplied in the following weeks. She feared for her safety at Marquette and within weeks withdrew her dissertation proposal and transferred to another university despite adverse consequences to her academic progress...

In his letter to McAdams informing him of the disciplinary action taken, President Lovell is clear that it was not the views expressed in the blog post that led to discipline: "I think it is important to state that the sanctions being brought against you are solely based on your ACTIONS as a tenured faculty member at Marquette University, and have nothing to do with the political or ideological views expressed in your blog" (capitalization in original). President Lovell's letter thus makes clear that McAdams was disciplined for his actions, and not the blog post's viewpoint. Thus, the question is not "whether [the blog post's] contents remove the doctrine's protections." Id., ¶64. It is whether McAdams' actions are worthy of protection.

The majority recognizes that in engaging in extramural activities, a professor "occupies a 'special position in the civil community,' one that comes with 'special obligations.'" Majority op., ¶65. Included in these "special obligations" is the duty to "exercise appropriate restraint." Id.

McAdams did not exercise any restraint at all, let alone appropriate restraint. I agree with the FHC that "where substantial harm is foreseeable, easily avoidable, and not justifiable, it violates a professor's obligations to fellow members of the Marquette community to proceed anyway, heedless of the consequences."

McAdams' actions were well summarized in President Lovell's discipline letter, where he approvingly quoted from the FHC report: "[McAdams'] use of a surreptitious recording, along with Ms. Abbate's name and contact information, to hold Ms. Abbate up for public contempt on his blog, recklessly exposed her to the foreseeable harm that she suffered due to Dr. McAdams's actions."

The majority unpersuasively asserts that the vile commentary immediately following the blog post "does not mean the blog post instigated or invited the vileness." Majority op., ¶76. The only way the majority can reach this conclusion is by ignoring significant facts in the record.

First, McAdams knew the effect his blog post would have on Abbate. Among the FHC's factual findings that go unmentioned by the majority is that Dr. McAdams wrote in a blog post that "[w]hen one does something that gets national publicity, some jerks are going to say nasty things," indicating he was well aware of this modern media phenomenon. Indeed, that is exactly what happened here.

Shortly after the post's publication, Abbate began to receive hateful emails. The negative communications multiplied over the next several days, particularly after the incident received coverage on Fox News. She was forced to shut down her email account and remove her email address from Marquette's graduate student website.

Several of the communications Abbate received expressed violent and profane thoughts. She feared for her physical safety and experienced significant detrimental effects on her mental and physical health. A public safety officer was even posted outside Abbate's classes for two weeks.

Abbate ultimately withdrew from her dissertation proposal defense and transferred to another university. This transfer requires that she repeat three semesters of course work.

Footnote

The record reflects that at the time of the events at issue in this case, Abbate was a graduate student in the philosophy department at Marquette. In addition to working on her dissertation, in the fall of 2014 Abbate taught two sections of Theory of Ethics, a philosophy class for undergraduates. I observe that throughout its opinion, the majority cherry-picks facts when it refers to Abbate as an "instructor" and not a "student." See, e.g., majority op., ¶1. In doing so, it colors the facts, disregarding the realities of the power dynamics at play here between a tenured professor and a graduate student.

My blogger reaction:

Much of what I publish likely brings unwanted attention to a person subject to public bar discipline, disqualification, judicial misconduct allegations and the like. 

My overarching goal has been to shed some light on areas - particularly attorney discipline - that had historically been beyond public reach and that reflect on the ability of the bar and bench to self-regulate. 

But I temper that with some sense that with a soapbox comes a level of responsibility. I often decline to post matters where I think that the educative value is outweighed by the embarrassment or harm it can cause to the individual to the extent that I am able to discern such harm. 

If the harm is brought to my attention, I have deleted posts on request where such action appears appropriate. 

I've also learned that, the more prurient or bizarre the conduct, the greater the traffic. 

Whether or not the Wisconsin court is correct on the law, the use of a blog to intimidate and harass a junior colleague is the antithesis of my own views concerning responsible blogging. (Mike Frisch)

Doctor Beware

A health care provider may be liable for the release of confidential patient information, according to a decision of the Connecticut Supreme Court

The plaintiff sought to recover damages from the defendant health care provider for, inter alia, negligence and negligent infliction of emotional distress in connection with the defendant’s allegedly improper release of certain confidential medical records in responding to a subpoena issued in the course of a separate paternity action filed against the plaintiff. The defendant filed a motion for summary judgment arguing, inter alia, that it was entitled to judgment on the plaintiff’s negligence claims because Connecticut’s common law did not recognize a cause of action against health care providers for breach of the duty of confidentiality in the course of responding to a subpoena. The trial concluded that this state had not yet recognized a common-law privilege for communications between physicians and their patients, and, accordingly, granted summary judgment in favor of the defendant on the plaintiff’s negligence claims. On the plaintiff’s appeal, held that, in light of applicable principles of public policy, case law from other jurisdictions, relevant provisions of the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. § 1320d et seq., and the statute (§ 52-146o) recognizing an evidentiary privilege arising from the physician-patient relationship, a duty of confidentiality arises from the physician-patient relationship and that unauthorized disclosure of confidential information obtained in the course of that relationship for the purpose of treatment gives rise to a cause of action sounding in tort against the health care provider, unless the disclosure is otherwise allowed by law, and that, because there was a genuine issue of material fact as to whether the defendant violated that duty of confidentiality by the manner in which it disclosed the plaintiff’s medical records in response to the subpoena, the trial court improperly granted summary judgment for the defendant on the plaintiff’s negligence claims; moreover, the defendant could not prevail on its claim that summary judgment should nevertheless be granted in this case because the plaintiff’s medical records were disclosed in response to a subpoena and § 52-146o does not require a patient’s consent for such a disclosure, as the mere existence of a subpoena does not preclude recovery for breach of confidentiality, the fact that a disclosure is in response to a subpoena does not necessarily ensure compliance with § 52-146o, and the defendant apparently complied neither with the face of the subpoena nor with the federal regulation (45 C.F.R. § 164.512 [e]) governing responses to such subpoenas.

(One justice concurring separately)

Argued May 1, 2017—officially released January 16, 2018

 There is a concurring opinion. (Mike Frisch)

3,000,000 Page Views

Over the weekend this blog registered Three Million hits! That is some milestone, especially as blogs come and go -- or, more often, become a post-every-once-in-a-while thing. This one is decidedly not that, thanks to Michael Frisch, whose research ability and prolificality are astonishing to me. He is the Stephen King of blawging. Mike is obviously responsible for the lion's share, by far, of the 3,000,000. I know I speak for founding editor Jeff Lipshaw and contributing editor Nancy Rapoport when I say: Congrats, Mike! (Alan Childress)

Falsified GPA On Resume Leads To Bar Admission Denial

The Maryland Court of Appeals has denied admission to an applicant who had passed the February 2013 bar examination

We consider whether to grant the application for admission to the Bar of Maryland of Deirdre Paulette Brown (“Ms. Brown”), who failed to disclose a prior felony theft charge on her application for admission and provided no credible explanation for her omission; intentionally misrepresented her grade point average (“GPA”) on her law school resume in order to enhance her qualifications with a prospective employer; and demonstrated a pattern of financial irresponsibility with credit account debt.

The Character Committee for the Seventh Appellate Circuit (“Committee”) recommended Ms. Brown’s admission to the Bar of Maryland by a vote of three to two. The State Board of Law Examiners (“Board”) voted four to three to adopt the recommendation of the Committee. Upon consideration of the recommendations of the Committee and the Board, and based upon our independent review of the record, we hold that Ms. Brown has not met the burden of establishing that she currently possesses the requisite moral character and fitness for admission to the Bar.

The court found that the debt issues were not an impediment to admission.

The problems lay elsewhere

In 1992, Ms. Brown was charged with making a false statement to a police officer and felony theft. She only disclosed the charge of making a false statement on her Bar application. The charges arose from an alleged robbery that occurred on or about October 10, 1992, while Ms. Brown was a manager in a retail clothing store in Prince George’s County.

The committee found that her testimony about the criminal matter was candid.

She had falsified her GPA

The Committee found Ms. Brown’s “admitted intentional misrepresentation of her [GPA] during the final semester of law school[,]” most egregious. Ms. Brown provided an April 24, 2012 reprimand letter from her law school’s Academic Standards Committee, which reported that she submitted a resume to the school’s Director of Career and Professional Development that falsely reported her GPA to be 3.71, when her GPA was only 2.71. The letter also noted that Ms. Brown failed to correct the misrepresentation when the Assistant Director of the career development office congratulated her on the false GPA. 

In deciding to issue a reprimand, the Academic Standards Committee considered the following: 1) Ms. Brown’s “estimable record of accomplishments;” 2) her “civic engagement and respect by her classmates;” 3) “the isolated nature of the incident;” and 4) the “sincerity of Ms. Brown’s regret regarding her conduct.” During the hearings, Ms. Brown admitted she placed false information on her resume in order to secure an on campus interview with a prospective employer, who required a minimum GPA of 3.0. Ms. Brown also testified that she withdrew her application with the prospective employer after the interview, reasoning that her conduct was “dishonest,” “unethical,” and “stupid.”

Although Ms. Brown acknowledged that her misrepresentation would have been exposed when the employer obtained her law school transcript, she admitted that she would not have reported it had she not been caught by the career development staff. The Committee accepted mitigation evidence relative to the resume incident. The Committee observed that three years had elapsed since the event leading to her academic reprimand, and that during that time, Ms. Brown held a real estate license, has been a notary public, and has worked for at least two title companies. The Committee also observed that within that period, no complaints had been lodged against her, and the accuracy and integrity of her work had not been questioned.

The court

Ms. Brown admitted that she had been financially irresponsible, failed to disclose the felony theft charge on her Bar application, and falsified material information on her resume during law school. Nonetheless, Ms. Brown avers that these incidents were not indicative of her present moral character and fitness for admission to the Bar of Maryland.

With the exception of Ms. Brown’s patterns of financial irresponsibility, which, in our view, she has since rehabilitated based on the record before us, we disagree.

Relative to the failure to disclose information, Ms. Brown alleges that she was not aware of the felony theft charge, and therefore, did not disclose it on her Bar application. However, the record reveals the contrary. Specifically, during Ms. Brown’s testimony at the February 2015 hearing, she stated, in relevant part: “I was very clear with [Mr. Herschfeld] . . . that I never said I committed theft of anything of that nature[,]” and that “[a]t first [the police officer] charged me with making a false statement. Then at some point he did do the theft, I do remember that, but I remember the theft either—I don’t know if it got tied into the stet or if it went away.” (emphasis added). Contrary to these assertions, Ms. Brown thereafter, affirmatively denied having recalled the felony theft charge, by stating, “I don’t remember that particular charge [(i.e., the felony theft charge)][,]” and “I don’t ever remember being charged with [felony] theft.”

...our cases demonstrate that an applicant’s lack of candor, truthfulness, or full disclosure, as reflected by an applicant’s inconsistent or contradictory testimony, or other evidence, also supports the denial of admission to the Bar.

...Ms. Brown’s explanations of her of failure to disclose, as reflected in the record and her representations during oral argument before this Court, are inconsistent, and tend to minimize the extent of her responsibility. We further observe that Ms. Brown failed to disclose a known criminal charge, despite signing an affirmation attesting to the accuracy of the information provided on her Bar application.

The coup de grace

Even more troubling, is Ms. Brown’s falsification of information on her resume during the last semester of law school. Ms. Brown alleges that this conduct displayed a “lapse in judgment” that was not indicative of her character, suggesting that the candid confession of her culpability and requisite remorse, should be viewed favorably towards her admission to the Bar. We disagree. Ms. Brown deliberately altered her GPA on her resume to advance employment prospects which she would not have qualified for, had her true GPA had been disclosed. Ms. Brown was cognizant that her actions were misleading. Ms. Brown also candidly admitted that the motivation behind her actions were calculated and purely designed for her own personal gain.

Ms. Brown further testified that had her law school not confronted her regarding the falsified GPA, she would not have taken the initiative to correct the misinformation. Specifically, Ms. Brown admitted that she did not correct the misrepresentation, even when the Assistant Director of the law school’s career development office congratulated her for achieving an “outstanding GPA,” and did not do so during an on-campus interview with the prospective employer. In furtherance of this act of deception, Ms. Brown testified that she only withdrew her resume from consideration because of her fear of being caught, and the fact that her actual GPA would have ultimately been revealed when compared against her law school transcript...

Although we accord great weight to the Board’s determination, our independent review of the record, which includes argument before this Court, where Ms. Brown appeared and responded to questions, and the proceedings before the Committee and the Board, leads us to conclude that Ms. Brown has failed to unequivocally meet the burden of establishing that she presently possesses the good moral character and fitness required for admission to the Bar of Maryland. In 2012, which was approximately four years ago, Ms. Brown revealed to the Committee and the Board that she deliberately falsified her GPA to enhance her qualifications with a prospective employer, and was less than candid regarding a previous felony theft charge.

Justice Hotten authored the court's opinion. (Mike Frisch)

Criminal Blogging

A decision today from the New York Court of Appeals

University of Chicago Professor Norman Golb is a scholar of the Dead Sea Scrolls. This [criminal] case involves an internet campaign by Golb's son, Raphael Golb, to attack the integrity and harm the reputation of other Dead Sea Scrolls academics and scholars, while promoting the views of his father.

To accomplish his goal of discrediting and harming these individuals, defendant, using pseudonyms and impersonating real academics and scholars, sent emails to museum administrators, academics and reporters. He published anonymous blogs. He concocted an elaborate scheme in which he used a pseudonym to engage one professor in an email exchange, and then impersonated a different scholar to criticize that professor's emails. Defendant impersonated a New York University (NYU) professor and sent emails to NYU students and NYU deans indicating that the professor had plagiarized the work of Professor Golb.

The court's disposition of the criminal charges

...we affirm the convictions for nine counts of criminal impersonation in the second degree and all of the convictions for forgery. We vacate the conviction for identity theft in the second degree; five of the convictions for criminal impersonation in the second degree; all of the convictions for aggravated harassment in the second degree, and the conviction for unauthorized use of a computer.

Justice Lippman would dismiss the charges in their entirety.

It would be difficult to find the conduct by defendant detailed in the majority opinion admirable. But our very different task is to decide whether that conduct was properly treated as criminal. While I see no constitutional impediment to prosecuting conduct similar to defendant's targeting Professor Schiffman as second degree identity theft -- which requires for its proof evidence of intent to cause highly specific injury of a non-reputational sort -- the particular counts of identity theft with which defendant was charged in the indictment's top two counts were not sufficiently proved...

The use of the criminal impersonation and forgery statutes now approved amounts to an atavism at odds with the First Amendment and the free and uninhibited exchange of ideas it is meant to foster.

Extensive information concerning the case can be found at The Raphael Golb Trial web page. (Mike Frisch)

Legal Profession Blog Records Millionth Hit

This month the Sitemeter ticked past 1,000,000. Happy New Year to all, and thanks for checking in. Thanks most of all to Mike Frisch for his dedicated research to find all these stories and dispositions, and for his reporting on them here so prodigiously and clearly. His attention to results and process has really taught me a lot over the past seven years. Thanks also to Jeff Lipshaw for his insightful posts over the years and for creating this blog. Mike and I could not tell an HTML from a hot meal on Sept. 18, 2006! [Alan Childress]

Join Etsy if You Are Lonely Around the Holidays

Once I joined Etsy, just because it was the place I wanted to buy one item, I found my inbox full with all sorts of communications. So this could be a cure for the holiday blues of Really Lonely People. You won't be ignored anymore. This statement is not an endorsement of Etsy. It is a suggestion that if you do need to join it to buy an item, do so by starting a whole new gmail account dedidated to it. Or preferably a compuserve one.

Etsy will sell you, if you want, a taxidermied mouse chess set. Imagine that the creator had to get 32 mice to make one set, and mice of varying sizes and apparent authority and movement. If it were cheaper than the (understandable) 450 buck price tag, I know a lot of people I'd have gotten this for.

The item I did get, which seems like a good idea and is very affordable, is a personalized set of Russian nesting dolls (3, 4, 5, even 6!). After you buy it and wade through other Etsy email, you'll get a request from the artist for family pics and iconic descriptions of family members--like my mom in her checkerboard shirt she would have to wear due to the corporate loyalty my dad (like his generation) had for working for Ralston Purina for all his life (a loyalty not repaid after Nestle bought it out).  Then in a week or so you'll get nesting dolls that represent your family. Better than stiff mice! Too bad she is inundated so you'll have to wait till Epiphany or Armenian Christmas.

The nesting doll idea reminds me that this time last year I got a great gift from a Torts student who is a Russian national. It was a large nesting matryoshka but inside, instead of a smaller ditto, was a bottle of Gray Goose Vodka. Nice. I asked him why the French vodka, thinking I could tease him about his disloyalty. But he explained, "Russian vodka too big to fit in matryoshka." [Alan Childress]

Judge May Sue Blogger For Defamation

The North Carolina Court of Appeals affirmed and reversed in part the disposition of summary judgment motions in a case where a judge engaged in a campaign to retain her seat sued a blogger who supported a candidate for a State Senate seat. The judge supported a different candidate.

The blogger posted a Facebook entry that accused the judge of misconduct for supporting a State Senate candidate. The entry was also posted on Carolina Talk Network. The same day, the judge's attorney informed the blogger that, as a candidate herself, the judge was allowed to endorse other office seekers.

The blogger posted a second comment apologizing for the first comment. He went on to state that he had read the North Carolina Code of Judicial Conduct "top to bottom" and asserted his belief that "for any Republican office holder to campaign openly for any candidate in a primary is wrong." He appended portions of the Code but omitted the portion that specially permits a judicial candidate to endorse another candidate for office.

The court held that the first post contaimed a false statement but there was no evidence of actual malice. Summary judgment was affirmed on behalf of the defendant blogger.

The court found that the second post was not a constitutionally protected opinion. The post  stated that the defendant had consulted an attorney friend and that "[w]e both agreed that there is probable cause for such [disciplinary] action [against the judge]. Read the appendix and make up your own mind."

The defendant was found to have attempted to mislead readers by failing to attach the portion of the Code that allowed the conduct at issue.

The court here held that the second post was subject to one interpretation and was defamatory: "It was, therefore, defamation per se as a matter of law."

The court also held that there was sufficient evidence that the second post was motivated by actual malice to present the issue to a jury. (Mike Frisch)

An Honor

The Penn State Dickinson School of Law had named us their Blog of the Month.

Thanks for the honor and for reading us. (Mike Frisch)

Thank You!

Thank you to Bruce Carton's Legal Blog Watch for selecting us as one of the 10 "most watched" law blogs of 2011.

The list:

1. Abnormal Use
2. Above the Law
3. Consumerist
4. Jonathan Turley
5. Legal Profession Blog
6. Legal Juice
7. Lowering the Bar
8. Simple Justice
9. Slaw.ca
10. Work Matters

We appreciate the recognition and hope to continue to be worthy of our readership.

Since we focus on lawyers who mess up, I'm told that some people read us for the same reason that it's hard not to look at a car accident. (Mike Frisch)

Yale Law Journal adds Kindle, Nook & Apple ebook editions, 99c

The Quid Pro Books project (here), which includes new ebooks in addition to paperbacks, has worked with the editors of the Yale Law Journal to bring out in leading digital formats its 8 print issues per year. That is, particularly, downloads at Amazon for Kindle, B&N for Nook, and direct on iPad/iPhone at Apple iBooks. The student editors decided to price each issue at 99 cents (the minimum such sites allow to indy presses) to make it as accessible as possible--I applaud that--and to help people read each issue as a whole, like a book for the commute or for kicking back. The ebooks are fully formatted, with links for contents, notes, and even cross-references.

More for the philosophy and torts types than legal ethics teachers, perhaps, the first issue of academic year 2011-12, out today, has a summary by Jules Coleman of how jurisprudence is analyzed and structured--a clear synthesis that may turn out to be required introductory reading in the field--as well as a dialog on torts between Ariel Porat and Mark Geistfeld. Plus students have contributed notes on felon disenfranchisement and counter-terrorism. Issue two should follow in a week or two and can be found at the links above too.

All 56 books or journals in the project produced since May 2010 can be found online (including guttenburgy print for the books), for example in this comprehensive Kindle list. Most recent, besides YLJ, is Lawrence Friedman's Contract Law in America, reviewed by NYU's Dan Ernst at Legal History Blog. Friedman's latest book is The Human Rights Culture, on the sociology of the movement.

Please consider letting FB friends or Twitter followers know this new way to access YLJ. [Alan Childress]

Reissue with new introduction of Michael Meltsner's Cruel and Unusual on lawyering against the death penalty

Posted by Alan Childress

After the renewed attention lately on the death penalty from the execution of Troy Davis, including this moving faith-based Huffington Post column on that matter by Stephen Dear, I wanted to mention, as has the StandDown Texas blog, the reissue of Cruel and Unusual: The Supreme Court and Capital Punishment. It's Michael Meltsner's inside account of the NAACP Legal Defense Fund lawyers who set out to abolish the death penalty. Their decade-sought victory, if impermanent, was a methodical and fascinating tale of strategy, perseverence, and people--ending with the Supreme Court's 1972 ruling in Furman v. Georgia. (BTW, Justice Stevens says he regrets his later vote to reinstate capital punishment.)

The 2011 edition has a new Foreword by CUNY's Evan Mandery and a new, reflective preface by the author (a law prof at Northeastern and its former dean). As StandDown notes, I worked with Michael to bring this back to print. It's now out in a variety of formats: Amazon as a paperback or for Kindle; at Barnes & Noble for Nook and in paperback; PDF at Smashwords; also on Apple iBooks and at Sony. The ebooks should be convenient for people worldwide who have not had access to this classic book as a hardback edition.

An aside about some new digital publications, one actually on topic

Posted by Alan Childress

The one on-topic features NYU's Stephen Gillers' new article on the professional responsibility of lawyers who hold or come across real evidence in a case, such as guns, presidential tapes, and drugs. It is part of the current issue of Stanford Law Review, which also has studies of forensic use of DNA in criminal cases to establish familial ties, fixing unfair contracts, and amicus briefs in the Supreme Court where a party below has abandoned the case. I helped the SLR editors bring it to ebook formats in the Quid Pro project I have written on before; here are links to its Amazon Kindle or B&N Nook formats (and at iTunes and Smashwords). Steve's abstract:

A criminal defense lawyer may need to read a document, test a weapon, or analyze a substance in order to advise a client. Or there may be no such need but a client may show up at a law office with an illegal weapon, contraband, or stolen property. In either event, what should a lawyer do with the item following any evaluation? What should she do if her client reveals where a weapon, contraband, or stolen property is hidden? Some cases say that a lawyer who receives or retrieves an item of real evidence must give it to the authorities after examining it. But because the item may implicate the client in a crime, the client may instead withhold it or the lawyer may refuse to accept it, even if the lawyer needs to evaluate it. Or a lawyer may choose not to retrieve a hidden item if she must then deliver it to the authorities. Other cases say that after evaluation, a lawyer may return an item to the source if possible. But is that the right rule when the item is stolen property, a dangerous weapon, or drugs? And what if return is not possible? This Article argues that the holdings of these cases, and secondary authorities that agree with them, are wrong. They impede the need for informed legal advice. They frustrate return of stolen property. And where the item is a weapon or drugs, they endanger public safety. This Article proposes solutions that avoid these results while protecting the legal rights of clients and the interests of law enforcement and the public.

In addition, new releases this week in ebooks include an all-new book, Brothers at War (on which I will write more when the paperback is widely available in June): historian Jerold Auerbach explores the Altalena incident of 1948, where Israeli commandos destroyed an Israeli ship bringing arms to Israel, pursuant to a ceasefire agreement. The surreal event and deaths of Altalena's sailors could have led to civil war in the new country. The cover photo, the actual shelling and evacuations, is by the famed war photographer Robert Capa. Here are Kindle or Nook links.

Also, sociologist Philip Selznick's foundational study Leadership in Administration is re-released in ebook formats (Nook; Kindle). It jumpstarted executive-leadership courses and programs, and is widely used in classes today in business, public policy, and military leadership. The digital edition adds a substantive, explanatory new Foreword by Robert Rosen of the University of Miami. Proceeds benefit Dr. Selznick's scholarship at the JSP Program at Berkeley law.

Finally, my own introduced edition of O.W. Holmes' The Path of the Law, in paperback and many ebook versions. Stay tuned Thursday for pretty big news on this venture.

Some Quick Book Notes on a Weekend

Posted by Alan Childress

Brief update to book project: Jerome Skolnick's Justice Without Trial is now out in a 4th edition,  with his new preface and new foreword by Candace McCoy. New cover but with those iconic handcuffs. As ebook at Kindle, Nook, and Sony, but not yet in paperback (expected late April). Happy 80th birthday, Jerry! It is in the same classics series with Scheingold's Politics of Law and Order, released last month in all formats (linked here).  

A sometimes-bizarre but fascinating diary/memoirs of battlefield nursing in World War I, with new foreword by my colleague Elizabeth Townsend Gard, who wrote her thesis on the genre of women writers  in wartime for a history PhD at UCLA. The aptly named I Saw Them Die (1936), out in Nook, Kindle, and Smashwords (ePub, Sony, PDF), and on Monday here in paperback; and sold on Amazon in paperback. More info on this fascinating memoirs here.

The canonical sociology study TVA and the Grass Roots by Philip Selznick, out in paperback here (paperback is also found on Amazon and other stores). Everyone has heard of it; time to have on the shelf (and next month in ebook). New foreword examining its impact and insights, and prescience, by Berkeley's Jonathan Simon. This is an authorized edition, unlike the OCRd one on Amazon sold so far that attributes to Selznick the sentence: "The jocation of administrative control in the area of operations, with the Authority as a weole, in relation 10 tha fmdfl IJOVCrflffietit, taken as an example." Like reading Hal's version of Beowulf! For our edition: Proceeds benefit the author's scholarship fund at JSP-Berkeley Law. Look for the one with a pretty cover, using actual Norris Dam plans.

UPDATE Mar 27: The Kindle book for TVA and the Grass Roots is out now here, as are Nook at B&N and other formats all linked here. It, and the other books above, are now active at the iTunes bookstore.

Stanford Law Review's Second Ebook Features Posner on Quality of Legal Representation

Posted by Alan Childress

Updating the announcement last week of bringing SLR to Kindle, Nook, iPad, Sony, etc. And thanks to Jeff Lipshaw for noting it at Prawfs--and I think he wants them to publish his new piece on models in contract theory. Which would be full circle since I'd wind up coding its HTML. Should I add <small><small> before any self-cite? Link his embedded URL cites to YouTubes of his riding horses? Or worse?  Note to Stanford editors: Larry Solum yesterday called Jeff's piece "very interesting and recommended."

Anyway, the current issue #2 is now out, at Amazon, Amason UK, B&N for Nook, and Smashwords, so that covers all formats including ePub and Sony. It is also on the iPad at iTunes (or with apps) and will be at Sony ebookstore in a few weeks. For purposes of this blog, one article of interest to our readers is Judge Richard Posner's survey and analysis, with Albert Yoon (law, Toronto), of judges' perceptions of the quality of legal representation ("Studying the legal profession poses several challenges..." -- abstract beneath the fold). Also interesting for the blog topic is Norman Spaulding (law, Stanford) on changes and problems at the Department of Justice, and a student Note on economic espionage, plus of course other articles. SLR will issue a press release this week on how they partnered up with Quid Pro to go ebook. Looks like other journals will follow suit this year.

Related, but certainly off-topic, I'll mention that Quid Pro also released this week a republication in Kindle, Nook, and Smashwords of a classic of law and society (political science; the Court), Martin Shapiro's Freedom of Speech: The Supreme Court and Judicial Review. Its new cover is right. See also David Crump's modern translation, rhyme, and abridgment of Virgil's Aeneid. It was Hades to get poetry to work on Kindle but I mastered the Styx. It has a paperback too, and soon a hardback. Its innovation in digital is using jumps from underlined words, to link to annotations (as a blog does), rather than footnotes. Keeps the poem moving. The paperback put the notes in margin, shaped to mirror the poem, rather than at a distracting footer. I think people will like the format and, of course, David's heartfelt take on the epic.

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Robert Rosen on Lawyers' Roles--In-House and Outside Counsel--in Advising Corporations

Posted by Alan Childress

As promised in a comment, here is more information on a new addition to the publishing project, and quite germane to the blog topic (!): Rob Rosen's (law, Miami) book, Lawyers in Corporate Decision-Making. Today out in hardcover and last month in paperback (allows 'Look Inside'), Kindle, Nook, Sony, and on the iPad via iTunes and K/N apps. This was originally his dissertation in sociology at Berkeley, and had been cited a lot and passed around in manuscript before. It is updated with his new Preface and new Foreword by Sung Hui Kim (law, UCLA) noted below, and a revised chapter two and other additions. Mainly it is the classic study people know and quote. He triangulated interviews with corporate counsel, outside law firms, and the corporate client, on many different legal representations, and got the whole picture of the disparate roles played in corporate advising. Lawyers often perceived it differently from clients. One chapter autopsies four representational failures. Interesting. Rosen also relates all this to theory and practice about "who is the client" and what should be the role of lawyer here: passive, proactive, advising beyond the legal consequences? It is cited a lot, too, for its taxonomy of corporate advising roles. So it is now generally out and not just in Xerox. Rob worked hard to get its substance and presentation just right, and even in library-quality hardback; we hope you'll like it.

"Rosen’s study of in house counsel is a deft, subtle dissection of a complex world where nothing is as it quite seems. In interviewing in house counsel, outside counsel, and clients, Rosen captures, in a Rashomon-like way, the moral character of lawyers’ work–their choices, their pitches, their claims by which they justify what they do. We see inside the professional black box.”
– John Flood, Professor of Law and Sociology, University of Westminster, London

“Widely regarded by experts in the field as a pioneering work in the sociology of the legal profession and a foundational piece in the slowly emerging canon of empirical research on inside counsel…. Not limited to rich, thick description, the study also normatively challenges the legal profession’s ideology of moral ‘independence.’ …With the long-awaited publication of this manuscript, corporate lawyers will have something to guide them.”
– Prof. Sung Hui Kim, UCLA School of Law, from the new Foreword

Also was blogged about at Froomkin's Discourse.net (terming it a cult classic), Business Law Prof Blog, the Advanced Legal Studies@Westminster Blog and Random Academic Thoughts (Flood calling it wonderful), and others (and finally, me!). Libraries can order it through Baker & Taylor, Ingram, Amazon, etc. UPDATE: I forgot to mention that (and thank) Jeff and Nancy and others gave some great blurbs for this you can see below the fold....

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Stanford Law Review Goes Ebook...in Kindle, Nook, and iPad Editions

Posted by Alan Childress

Becoming the first general law review to publish its current issues as an ebook (plus its traditional print volumes), the Stanford Law Review now includes Kindle and the other ebook formats in its distribution. I helped the editors digitize the first academic-year issue, Vol. 63, #1, as part of the "Quid Pro Books" project I discussed at Law Librarian Blog before. (They are the publisher, of course, not me--though one is tempted to insert an article...) SLR's Issue 2 ebook will soon follow.

For now, Issue 1 is available in the Amazon Kindle store (and its UK store); at Barnes & Noble for Nook; on the iPad with these apps and also Apple's iTunes bookstore; and in multiple formats including Sony, ePub, and rtf at Smashwords. This issue features articles by Ryan Scott (on sentencing disparity), Scott Hershovitz (what Harry Potter means to torts), Robert Cooter & Neil Siegel (collective federalism), and Brian Galle & Jonathan Klick (AMT tax). Hope it's a convenient way to keep up with scholarship for some, and a necessary adjustable font for others. Enjoy.

Other Quid Pro updates: latest releases in print and all ebook formats include Robert  Rosen's Lawyers in Corporate Decision-Making (more soon on that, as very pertinent to the blog topic), and the latest book from Amitai Etzioni, Law in a New Key: Essays on Law and Society. 

Also re-released are two classic books: (1) the sociological study (so far in digital, soon in paper), Neil Smelser's Sociological Theory; and (2) in print/digital in political science and criminal law, Stuart Scheingold, The Politics of Law and Order.