Tuesday, March 22, 2011

The Answer Is No Answer (Respectfully)

The San Diego County Bar Association has a recent ethics opinion on the dilemma faced by a defense attorney questioned by a judge about a non-appearing client:

Analyzing all of these rules and ethics opinions, we conclude that in California, Attorney is not able to answer the judge’s question either way.  She is not able to be dishonest with the court due to her duty of candor, and she is not at liberty to disclose the information imparted to her by Client’s mother the night before, because even though that information was not relayed to her by her client and therefore is not protected by the attorney-client privilege, it nonetheless constitutes confidential information. 

The more difficult issue is whether Attorney is permitted to say anything at all in response to the court’s question regarding whether she “had any idea why her client was not there.”  If Attorney answers in the negative, she is in violation of her duty of candor to the court per Rule 5-200 and Bus. and Prof. code section 6068(d) because she does have an idea, as relayed by Client’s mother the night before.  If, however, Attorney answers “yes,” she arguably violates her duty of confidentiality under Cal. Bus. and Prof. code section 6068(e) because that answer would cause a harmful inference to be drawn to the detriment of her client, thus violating Attorney’s duty not to reveal client confidential information.  Certainly if there were an exculpatory and unexceptional [see parenthetical note] reason Attorney’s client was not in court, Attorney would be free to reveal that information, because it would not qualify as information “which the client has requested to be inviolate or the disclosure of which might be embarrassing or detrimental to the client” (Cal. State Bar Formal Op. 1993-133 [citing Cal. State Bar Formal Opn. Nos. 1980-52 and 1981-58]). 
Under our facts, Attorney’s only ethical option is to inform the court respectfully that due to applicable ethical rules she is not at liberty to answer the question.

Hat tip to Wally Mlyniec for passing this along. (Mike Frisch)

March 22, 2011 in Professional Responsibility, The Practice | Permalink | Comments (0) | TrackBack (0)

Monday, March 21, 2011

Multiple Representation Results In Habeas Relief

The Georgia Supreme Court affirmed the grant of habeas corpus relief to a defendant who had been charged with kipnapping and pled guilty to false imprisonment. After serving a sentence of probation, the defendant (a lawful permanent resident from Uzbekistan) was scheduled for deportation. He then moved to vacate his plea. The State appealed the grant of the writ.

The kidnapping charges arose from an incident where the defendant was driving a car with a friend in the passenger seat. They

came upon a young woman, in whom [the friend] had a romantic interest, and they pulled up to her. [The friend] got out and physically forced the victim into the car, telling her that he loved her; the men drove around for a few minutes; and they released her near the place they had picked her up.

One attorney represented both defendants in the ensuing criminal case. The friend retained and paid the attorney. The defendant never met with the attorney outside the presence of the friend or the friend's family. The attorney never raised the issue of potential conflicts or told the defendant her could secure his own counsel. Nor did the attorney advise the defendant of possible deportation. (Mike Frisch)

March 21, 2011 in Professional Responsibility, The Practice | Permalink | Comments (0) | TrackBack (0)

Sunday, March 20, 2011

Malpractice Claims Go Forward

The New York Appellate Division for the First Judicial Department held that a trial court had properly denied a motion to dismiss a legal malpractice action:

This action alleging legal malpractice arose out of defendants' representation of plaintiff in a lawsuit brought by Victoria Gallegos alleging employment discrimination against nonparty Elite Model Management Corp.; plaintiff, a 10% shareholder; and Elite's majority shareholder, director of finance and co-president. A bifurcated trial resulted in a verdict of liability against the Elite defendants and an award to Gallegos of approximately $2.6 million in compensatory damages and $2.6 million in punitive damages against the corporate defendant. On appeal, this Court affirmed the liability verdict but vacated the damages award and remanded the matter for a new trial on the issue of damages.

The instant complaint states a cause of action for legal malpractice by alleging that defendants were negligent in failing to proffer evidence at trial that plaintiff was no longer president of Elite when Gallegos's employment commenced, had limited authority to respond to Gallegos's complaints, and did not approve of or participate in the termination of Gallegos's employment, and that but for this negligence plaintiff would have been exonerated of liability and would not have incurred damages. Plaintiff also alleges sufficiently that Curtin mishandled the Gallegos in-house complaint and failed to apprise her of Gallegos's early settlement demand in the amount of $50,000.

The complaint further alleges that defendants' joint representation of all the Elite defendants in the Gallegos action, in violation of Code of Professional Responsibility DR 5-105 (22 NYCRR 1200.24) (effective through March 31, 2009), divided their loyalties and prevented them from asserting the defense that plaintiff's co-defendants were the primary, if not the sole, actors in the decision to terminate Gallegos's employment; because of their joint representation, defendants could not request that the jury apportion liability among plaintiff and her co-defendants, resulting in the automatic imposition of joint and several liability on her (see CPLR 1601). While these allegations of a conflict of interest or a violation of attorney disciplinary rules alone could not support a cause of action, liability can follow where the divided loyalty results in malpractice.

Nor is the defense of the attorney judgment rule available to defendants on this record. Defendants have offered no reasonable strategic explanation for the failure to introduce arguably exculpatory evidence.

The breach of fiduciary duty cause of action is not duplicative of the malpractice cause of action since it is asserted against Curtin in his capacity as a corporate director, not as an attorney.

(Mike Frisch)

March 20, 2011 in The Practice | Permalink | Comments (0) | TrackBack (0)

Thursday, March 17, 2011

Ineffective Assistance

The Supreme Court of the State of Washington has held that a defense attorney's erroneous advice to a non-citizen regarding the deportation consequences of a guilty warranted reversal of the ensuing conviction. The court's majority opinion framed the issue:

The question presented is whether, in light of the United States Supreme Court's decision in Padilla v. Kentucky, ___ U.S. ___, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), a noncitizen criminal defendant can be denied the right to  effective assistance of counsel when  the defense attorney erroneously  assures the defendant  that the deportation consequence of a guilty plea can be mitigated.

The court answered in the affirmative. Concurring opinions are linked here and here. (Mike Frisch)

March 17, 2011 in The Practice | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 15, 2011

Prosecutor Goaded Defense To Seek Mistrial, Double Jeopardy Bars Retrial

The South Carolina Supreme Court reversed a murder conviction, concluding that the prosecutor had "goaded" defense counsel into seeking a mistrial and then securing the conviction at a second trial. The court concluded that the second trial was barred by double jeopardy.

The court recited the facts:

It is undisputed that Petitioner shot and killed his sister's boyfriend, Robert Lee Stewart (Victim).  In October 2003, Petitioner stood trial for murder.  At trial, Petitioner claimed self-defense.  The first trial ended when the judge granted Petitioner's motion for a mistrial.  When Petitioner was tried again in 2005, he moved to dismiss based on double jeopardy.  The circuit court judge at the second trial denied the motion and the jury convicted Petitioner of murder.

During the first trial, there was a great deal of animosity between the solicitor and defense counsel.  Prior to questioning the first police witness, the solicitor explained that there was a videotape made of the crime scene that included graphic images of Victim's body.  The solicitor redacted the original videotape to erase the graphic images and presented defense counsel a redacted copy on the day of trial.  However, the original videotape, including the graphic images of Victim's body, was shown to the jury.  Petitioner's counsel moved for a mistrial and dismissal with prejudice based on prosecutorial misconduct.  Counsel for defense argued the solicitor's case was not going well and the State was now privy to his defense tactics.  The solicitor claimed the tapes were switched unintentionally and inadvertently.  The court found the explanation offered by the State "shocking" as to why "such a huge, substantial, material piece of evidence would be handled in such carefree fashion . . . ."  The circuit court judge admonished the solicitor, but denied the motion for a mistrial issuing a curative instruction that the jury was to disregard the fact that they viewed the body of Victim.

During the solicitor's closing argument, she accused defense counsel of unethical conduct in coaching witnesses and implied to the jury that it was their community duty to convict Petitioner of murder.  After the solicitor concluded her closing argument, defense counsel again made a motion for a mistrial.  Defense counsel contended a mistrial should be granted based on prosecutorial misconduct in closing argument in that the prosecution accused defense counsel of coaching witnesses, and argued facts not in evidence.  Defense counsel ultimately argued that the cumulative effect of the prosecutorial misconduct warranted a mistrial.  The circuit court judge charged the jury and then heard arguments on the mistrial motion.  The solicitor contended her closing argument was justified by the evidence and was responsive to the defense's closing argument, thus, the mistrial motion should be denied.  The jury then sent a note to the judge that it was deadlocked.  The judge gave an Allen charge and the jury resumed deliberating.  After further deliberation, the jury again reported that it was deadlocked.  The judge received the note that the jury remained deadlocked as he was about to rule on the mistrial motion. 

The circuit court judge noted he had reviewed the motion for a mistrial, the solicitor's closing argument, and his notes from the testimony.  The judge found the statements made about Petitioner's counsel, the exhortation to the jury to convict in order to protect the community, and the introduction of the original videotape warranted a mistrial. 

The circuit court judge stated, "In my readings of those opinions it's almost as if . . . this court can infer that the defendant was almost goaded into the position of asking for a mistrial.  So based on the totality of the circumstances that [have] occurred in this trial . . . I will declare a mistrial . . . ."  The solicitor asked if the mistrial was based specifically on prosecutorial misconduct or the comments in her closing argument.  The judge responded, "The comments made in closing arguments, I would consider to be prosecutorial misconduct as well as . . . the video tape. . . . It's the cumulative nature of everything."  The State appealed the grant of a mistrial and the court of appeals dismissed the case as not immediately appealable.

Almost two years later, the State retried Petitioner.  Petitioner moved to dismiss based on double jeopardy arguing the solicitor at the first trial intentionally goaded him into moving for a mistrial.  The circuit court judge at the second trial denied the motion to dismiss.  In denying the motion to dismiss that judge made two seemingly inconsistent findings.  That judge stated:

I am resolving this motion completely independent of whether or not the prosecutor intentionally goated [sic] the defense into making a motion for a mistrial. . . .

          . . . . Even if there had been prosecutorial misconduct, it was the fact that the jury was deadlocked that caused the mistrial. 

. . . . So regardless of my analysis of what happened in the first trial, this motion to dismiss is denied because it was the jury's being deadlocked that lead to the manifest necessity that lead [sic] to the mistrial.

Shortly after making the above finding, the circuit court judge also found the following:

I do not find that the prosecutor specifically committed misconduct that was designed to elicit a motion for mistrial from Defendant so that the prosecutor would have another bite at the apple, another time to try the Defendant.  I believe that the prosecutor was vigorously trying to win the case and not trying to throw the case in the way of a mistrial.  So I am for those reasons, denying the motions [sic] to dismiss based on double jeopardy.

The second trial proceeded and the jury convicted Petitioner of murder.  Petitioner appealed to the court of appeals.  The court of appeals affirmed the denial of Petitioner's motion to dismiss based on double jeopardy.

The court found that the finding that the prosecutor had not goaded the defense was clearly erroneous.

Details about the decision from FoxCarolina may be found here. (Mike Frisch)

March 15, 2011 in The Practice | Permalink | Comments (0) | TrackBack (0)

Friday, February 18, 2011

Smell Of Alcohol On Attorney's Breath Inadmissible Absent Evidence of Impairment

The Iowa Supreme Court agreed with its Court of Appeals that a trial court committed error when it permitted the plaintiff in a legal malpractice case to introduce evidence that the attorney "emitted the smell of an alcoholic beverage from his breath during the representation, without introducing evidence of impairment."

The court remanded the case for a new trial as a result of errors in the jury instructions.

The opinion of the Court of Appeals is linked here.

The attorney had defended the clients in civil litigation that led to a money judgment against them. He entered a substance abuse treatment facility shortly after the trial. The trial court refused to admit opinion evidence on whether the attorney was intoxicated at the trial and excluded evidence of his post-trial treatment for alcoholism. The Court of Appeals concluded that "there was no evidence [the attorney] was 'under the influence' much less that he was incapable of competently performing his services as a result." (Mike Frisch)

February 18, 2011 in Bar Discipline & Process, The Practice | Permalink | Comments (0) | TrackBack (0)

Monday, February 14, 2011

Metaphors, Models, and Meaning in Contract Law

Posted by Jeff Lipshaw

For those of you out in the practice world who are curious about how academic legal theory and first year contract law pedagogy might be combined with real world intuitions and experience, I've posted a new article, Metaphors, Models, and Meaning in Contract Law , on SSRN. 

The gist of it is this:  the dominant metaphor for contract in practice and the academy is "contract as model."  One upshot of this metaphor is an article of faith (among lawyers at least) about the rational linkage between what is going on before the fact in the creation of the contract, and what gets litigated after the fact.  Sometimes the metaphor is appropriate, and sometimes it is not.  I've played with my intuition and admitted casual empiricism that the contract, even in a heavily negotiated deal, is as often the "thing" that Arthur Leff conceptualized in his iconic 1964 American University Law Review article as it is a model or map of the transaction .  I've proposed an alternative metaphor of "journey" in which the objectification of an agreement in the contract (a milestone, metaphorically speaking) is often as important as the content itself.  The piece contains illustrations I use in class (see Wood v. Lucy, Lady Duff-Gordon, above, but you have to read the article to get the context), as well as a discussion of how I use the fundamentals of metaphor theory to explain hard cases in which the parties assert, and judges must choose between, competing legal "algorithms".

The abstract:

Why does there seem to be such a wide gap between the subject matter of the usual first-year contracts course and what practitioners (particularly transactional lawyers) actually experience? My claim is that it is the result of a powerful theoretical system whose hallmark is a closed linguistic system—in the coinage of one noted scholar, “an epistemic trap.” The subject matter of contract law requires dealing with legal truth not just as a coherent body of doctrine, but also correspondent in some way to actual self-legislation of the parties. I propose escaping the trap with a turn to metaphor theory. The underlying metaphor common to prevailing conceptions of contract law, and which demands some form of correspondent truth from the contract (and contract law), is “contract as model of the transaction.” I suggest alternative metaphors of categories as containers, ideas (including “the meeting of the minds”) as objects, and the transaction life cycle as a journey. The goal is to focus on the “subjective to objective” process of the transactional life cycle, and to consider the perspectives of the participants in or observers of the transactional life cycle, and the models and metaphors that shape the conceptual frames from within which those participants and observers perceive and make use of the legal doctrine.

February 14, 2011 in Abstracts Highlights - Academic Articles on the Legal Profession, Law & Business, Law & Society, Lipshaw, Teaching & Curriculum, The Practice | Permalink | Comments (0) | TrackBack (0)

Thursday, February 10, 2011

Safe Harbor Now But Not Then

The Florida Supreme Court resolved a conflict in lower court decisions by holding that a "safe harbor" provision enacted in 2002 did not apply to frivolous claims filed prior to the adoption of the provision. Under the provision, a party seeking sanctions must serve the motion on the opposing party twenty-one days before filing it with the court. (Mike Frisch)

February 10, 2011 in The Practice | Permalink | Comments (0) | TrackBack (0)

Thursday, February 3, 2011

Is This A Great System Or What?

The Maryland Court of Special Appeals affirmed a criminal conviction nothwithstanding the prosecutor's improper statements to the jury in closing rebuttal argument. The prosecutor asked the jury why the defendant would "want a trial if he's already signed a confession." Then:

Guilty people have a right to trial. That's what we had today.

The court here found that the remarks were an isolated instance, that the trial court instructed the jury that arguments were not evidence, and there was overwhelming evidence of guilt. (Mike Frisch) 

February 3, 2011 in The Practice | Permalink | Comments (0) | TrackBack (0)

Saturday, January 8, 2011

The Paperless Chase

A recent opinion of the District of Columbia Bar Legal Ethics Committee deals with obligations to maintain client files. The opinion summary:

As a general matter, there is no ethical prohibition against maintaining client records solely in electronic form, although there are some restrictions as to particular types of documents. Lawyers and clients may enter into reasonable agreements addressing how the client’s files will be maintained, how copies will be provided to the client if requested, and who will bear what costs associated with providing the files in a particular form; entering into such agreements is prudent and can help avoid misunderstandings. Assuming no such agreement was entered into prior to the termination of the relationship, however, a lawyer must comply with a reasonable request to convert electronic records to paper form. In most circumstances, a former client should bear the cost of converting to paper form any records that were properly maintained in electronic form. However, the lawyer may be required to bear the cost if (1) neither the former client nor substitute counsel (if any) can access the electronic records without undue cost or burden; and (2) the former client’s need for the records in paper form outweighs the burden on the lawyer of furnishing paper copies. Whether (1) a request for electronic files to be converted to paper form is reasonable and (2) the former client’s need for the files in paper form outweighs the lawyer’s burden of providing them (such that the lawyer should bear the cost) should be considered both from the standpoint of a reasonable client and a reasonable lawyer and should take into account the technological sophistication and resources of the former client.

(Mike Frisch)

January 8, 2011 in Clients, The Practice | Permalink | Comments (2) | TrackBack (0)

Thursday, December 30, 2010

New York Times on New Strategies for Hiring Law Firms

Posted by Jeff Lipshaw

The "Small Business" section of the New York Times has an article this morning about models small and entrepreneurial businesses are using to hire law firms, and strategies the firms are using to serve them.  I'm not sure there's anything really new in here, but it does bring up a point that legal educators and young lawyers need to appreciate, particularly for those law grads who aren't headed to the traditional big law associate posting.  Lawyers to small businesses are often the first and only outside adviser the firm has ever had.  Listen to some of these snippets:  "Make sure the attorneys understand your business - who your customers are, what your biggest areas of risk are, and so on."  "One issue is a traditional distrust of lawyers shared by many entrepreneurs: 'They see the lawyer as saying no to daring business moves."  "I needed access to a trusted source and only to pay for it when I use it, like weekends and so forth.  I use my attorney also to brainstorm ideas."

This is consistent with my view that business lawyers (or at least effective or successful one) can't simply give clients the law and expect them to make the integrated business/legal decision.  For more on this from a theoretical standpoint (with practical examples), see The Venn Diagram of Business Lawyering Judgments:  Toward a Theory of Practical Metadisciplinarity, 46 Seton Hall L. Rev. 1 (2011).  

December 30, 2010 in Law & Business, The Practice | Permalink | Comments (2) | TrackBack (0)

Friday, December 17, 2010

New Ohio Pro Hac Rules

The web page of the Ohio Supreme Court reports:

The New Year will result in some significant changes for out-of-state attorneys who want to appear temporarily in a proceeding in Ohio (pro hac vice).

The Supreme Court of Ohio adopted pro hac vice amendments last year, which become effective Jan. 1, 2011. Pro hac vice is a privilege granted by a tribunal to out-of-state attorneys not admitted to practice law in Ohio to appear before the tribunal on a limited basis.

Amendments to Gov. Bar R. XII of the Rules for the Government of the Bar will:

  • Centralize the administration of pro hac vice admission through the Supreme Court’s Office of Attorney Services.
  • Require an out-of-state attorney to file an application and $100 annual registration fee before applying to appear pro hac vice.
  • Establish basic criteria for appearing pro hac vice before a tribunal, including acknowledgement of Ohio’s attorney disciplinary rules and a statement that the attorney has not been granted permission to appear pro hac vice in more than three proceedings before Ohio tribunals in the current calendar year.
  • Permit the administrative revocation of privileges to practice pro hac vice if the attorney does not comply with certain provisions of the rule.

Susan Christoff, Attorney Services Division director, said the changes implemented in Ohio bring the state in line with how other states have handled temporary appearances by out-of-state attorneys.

“Attorneys who regularly practice in other states in the Midwest should be familiar with some of the requirements instituted by Ohio because they are similar to what those other states require,” she said. “That being said, it’s important to note that pro hac vice has changed in Ohio, and we want to make sure Ohio’s courts and administrative agencies as well as Ohio judges and attorneys are aware of these coming changes.”

She noted that attorneys seeking pro hac vice registration will be able to submit registration applications electronically. The Office of Attorney Services will maintain an online public directory that includes the names of attorneys who have registered under the new rule and the cases in which they have received permission to appear pro hac vice.

To access more detailed information on the changes, complete the pro hac vice registration process online or access the pro hac vice attorney directory, click on the pro hac vice button on the front of the Supreme Court’s Web site at www.sc.ohio.gov or visit this Web address: http://www.supremecourt.ohio.gov/AttySvcs/PHV/default.asp.

(Mike Frisch)

December 17, 2010 in The Practice | Permalink | Comments (1) | TrackBack (0)

Thursday, December 16, 2010

Not Enough To Object

In an accident case involving an injured motorcyclist, the defendant City of Tampa made a number of objections at trial concerning the behavior of the plaintiff's attorney. The objections were sustained. After a verdict for the plaintiff, the City sought a new trial based on the improper conduct of counsel.

The Florida Supreme Court held that the City was required to move for a mistrial in order to preserve the appeal for a new trial. The City's failure to timely move for a mistrial precludes consideration of the issue.

The court resolved a district court split over the issue. (Mike Frisch)

December 16, 2010 in The Practice | Permalink | Comments (0) | TrackBack (0)

Saturday, November 27, 2010

The lawyer as juror and the depressed lawyer, not necessarily the same

Over at Minor Wisdom, Ray Ward is starting to share his view from the jury voir dire. More thoughts to come, but the money quote so far is that "while lawyers should not be immune from jury duty, we really should get CLE credit for it."  Also, his blog reminded me of his excellent and serious post five years ago at JD Underground on lawyers and depression, Depression, The Lawyers' Epidemic: How You Can Recognize the Signs. [Alan Childress]

November 27, 2010 in The Practice | Permalink | Comments (0) | TrackBack (0)

Monday, October 4, 2010

No Right To Seek Disqualification

The web page of the Pennsylvania disciplinary board reports:

On August 17, 2010, the Supreme Court of Pennsylvania decided a high-profile case involving an attempt by a pharmaceutical company to disqualify the private law firm hired by the Commonwealth to pursue a claim for damages for Medicaid and other program funds spent as a result of off-label marketing efforts by the company.

In the case of Commonwealth v. Janssen Pharmaceutica, Inc., No. 24 EAP 2009, the company had sought to disqualify the Texas law firm of Perrin Bailey, LLP, which represents several states in similar litigation. The company attacked the contingent fee contract between the firm and the Office of General Counsel on several theories, including:

  • it restricted the ability of the state to enter into a nonmonetary settlement;
  • it was an improper delegation of spending authority;
  • it infringed on the General Assembly’s exclusive spending power; and,
  • it violated the company’s due process rights by giving a party acting on behalf of the government a financial interest in the outcome.

In the majority opinion, written by Chief Justice Castille, the Court did not reach these issues. Rather, it decided the case under the terms of Section 103 of the Attorneys Act, 71 P.S. 732-103, which states that no party other than a Commonwealth agency has standing to challenge the authority of the legal representation of the agency. The Court described Janssen’s statutory and constitutional arguments as “cogent,” but concluded that the intent of the Legislature to deny private parties the right to challenge the representation of the Commonwealth was clear.

In a concurring opinion Justice Baer, joined by Justice McCaffery, agreed with the majority’s reasoning, but expressed concern about whether the issue might be moot.

Justice Saylor filed a dissent in which he expressed the view that the constitutional issues raised by Janssen were not subject to limitation by Section 103, and that its efforts to disqualify the firm should be determined by traditional standing analysis.

(Mike Frisch)


October 4, 2010 in The Practice | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 8, 2010

Complaint Against Immigration Attorney Reinstated

The New York Appellate Division for the First Judicial Department reinstated a dismissed action brought by an employee who was represented in an immigration matter by an attorney retained by the employer. The court found that there were issues that could not be resolved on motion:

...even if it could be said that defendant, despite the lack of an expert, sustained his prima facie burden simply by pointing to plaintiff's failure to maintain a valid passport, plaintiff raised an issue of fact sufficient to defeat the motion. Plaintiff's expert opined in his affidavit that in his experience, the failure to maintain a valid passport has never resulted in a person's loss of legal immigration status. Defendant failed to rebut this. Therefore, a trial is necessary to determine whether plaintiff's actions excuse defendant from liability.

Not even defendant makes the argument, advanced by the dissent, that even assuming plaintiff was illegally benched and had a valid passport, it still would have been proper for defendant to petition for a renewal of the visa. In any event, the argument is meritless. First, the dissent places the burden on plaintiff to explain what he was doing during the 16 months he was not working for WFI [the employer] , when it was defendant's burden to negate the allegation in the complaint that plaintiff was illegally benched. The dissent fails to address the fact that defendant presented not one whit of admissible evidence that plaintiff voluntarily separated himself from WFI.

Furthermore, the dissent's view would permit an unlawful and vindictive act by an employer to work to the detriment of an innocent alien. We find it improbable that defendant would have lacked any ability to present these unique facts to immigration authorities and explain the extraordinary prejudice that would befall plaintiff were he forced to make a trip to a war-torn country to validate a renewed visa that could have simply been extended had his employer not acted in a manner contrary to law. Even if the regulations were so inflexible, as the dissent believes, it would have been necessary for defendant to support his position with expert testimony explaining why even under such extreme circumstances his hands were tied. Indeed, as discussed above, the immigration regulations at issue here, including the section requiring a valid passport at the time an application for extension is filed, are hardly self-explanatory, nor is it possible to conclude from their face that defendant had no chance of successfully securing an extension of plaintiff's visa. Accordingly, we reject the dissent's position that Supreme Court was "able to assess the adequacy of the legal services rendered, and require[d] no expert guidance."

The dissent notes that the employer had rehired the employee after the events that were the basis of the case:

The failure of proof on the dismissal motion lies not with defendant, but with plaintiff. Significantly, the reason for plaintiff's "separation" from his employment — whether benching, as plaintiff now maintains, or abandonment of his job, as WFI records indicate — presents a question of fact. Plaintiff has submitted no affidavit in opposition to the motion explaining why he left WFI or what he was doing during the ensuing 16 months; nothing in the record provides an explanation, including the Kuck affidavit, which — as the affidavit of an attorney unaccompanied by documentary evidence — is without probative value (Zuckerman v City of New York, 49 NY2d 557, 563 [1980]). In the absence of a submission, in admissible form, attesting that plaintiff at all times met the conditions of his H1-B visa, the opposition fails to allege that but for defendant's malpractice, plaintiff could have received a visa extension (see Yong Wong Park v Wolff & Samson, P.C., 56 AD3d 351 [2008], lv denied 12 NY3d 704 [2009]). The expert's submission is thus procedurally deficient, warranting dismissal of the complaint on that basis alone (see Alvarez v Prospect Hosp., 68 NY2d 320, 327 [1986]), since plaintiff has failed to provide a viable theory of malpractice by defendant supported by the requisite factual predicate.

Plaintiff's opposition evades discussion of the circumstances under which he left WFI and what he was doing during the 16 months before he was rehired, and fails to address such matters as whether he took alternative employment to support his family (a wife and a child born in February 1999) during this period. The opposition to the motion only suggests, by indirection, that there was some misconduct on the part of WFI in connection with plaintiff's separation from his employment with the company, but neglects to supply any information to support that intimation or to connect it to the conduct alleged to constitute malpractice. Finally, plaintiff coyly offers only the affidavit of his purported expert in immigration law, in lieu of a sound legal argument supporting his cause of action.

(Mike Frisch)

September 8, 2010 in Clients, The Practice | Permalink | Comments (0) | TrackBack (0)

Thursday, August 26, 2010

Public Defenders And Imputed Disqualification

The web page of the Ohio Supreme Court reports:

The Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline has issued an advisory opinion addressing two questions that arise from the State Public Defender having a central office and branch offices.

Opinion 2010-5 addresses whether assistant state public defenders located in different offices are considered lawyers associated in a firm for purposes of imputation of conflicts of interest. The opinion also addresses whether there’s a conflict of interest when an assistant state public defender in the central appellate office conducts a merit review, prosecutes an appeal, or pursues a post-conviction remedy asserting ineffectiveness of an assistant state public defender from a branch office.

The opinion finds that assistant state public defenders in different offices are not automatically considered lawyers associated in a firm for purposes of imputing conflicts of interest. The association hinges on whether the appellate state public defender provides assistance to a trial branch state public defender in a trial matter.

The opinion also finds that there is not a per se conflict of interest between assistant state public defenders in different offices. A conflict depends “upon whether there is a substantial risk that the appellate lawyer’s ability to consider, recommend, or carry out an appropriate course of action for the defendant is limited by the appellate lawyer’s responsibilities to another client, a former client, or a third person, or by the lawyer’s own person interests.”

Several portions of two Ohio Rules of Professional Conduct were consulted in issuing this advisory opinion, including: Prof. Cond. Rules 1.10 and 1.7.

(Mike Frisch)

August 26, 2010 in Law Firms, The Practice | Permalink | Comments (0) | TrackBack (0)

Friday, August 13, 2010


Posted by Jeff Lipshaw

Over the course of a career, I've mentored enough people to be proud when they achieve good things after we've parted company, but I haven't been teaching long enough to get a lot of that yet from my law students.

One of my students (and my research assistant) at Tulane in 2006-07, Matthew Kirkham, is an assistant DA in Orleans Parish (New Orleans), Louisiana.  This story is about the successful prosecution of a guy who stole $500,000 by not providing contractor services to Katrina victims.  As reported, "Assistant District Attorneys Alex Calenda and Matt Kirkham handled the case."

* Per Merriam-Webster, "Yiddish kveln to be delighted, from Middle High German quellen to well, gush, swell."

August 13, 2010 in Teaching & Curriculum, The Practice | Permalink | Comments (0) | TrackBack (0)

Thursday, July 22, 2010

Webley on the Different Styles and Attitudes of UK Lawyers vs. Mediators in Divorce Disputes

Posted by Alan Childress

Lisa Webley is a Reader at the law school of Westminster and a research fellow at the University of London Institute of Advanced Legal Studies (where she also got her PhD); she was just now at Stanford attending the international conference on the legal profession (and I will try to horse-and-hound her into blogging on it). She has published her law-and-society dissertation on the different approaches solicitors versus mediators take toward divorce and custody matters. Their practical and conceptual styles are indeed different, as revealed by the grounded theory study of their ideologies, training, backgrounds, ethics, and professional messages. So finds Lisa in Adversarialism and Consensus? The Professions’ Construction of Solicitor and Family Mediator Identity and Role. Her abstract: Webley Cover resz

This study considers the messages that the Law Society of England and Wales and the UK College of Family Mediators transmit to their members about the professional approach they should adopt in divorce matters.  The study employs a grounded theory method to analyse the training, accreditation, best practice statements and codes of conduct generated by the two professional bodies.  It examines the extent to which the training, accreditation and codes of conduct of family solicitors and family mediators privilege adversarial or consensus based approaches to divorce for their clients, in the light of statements made around the time of the passage of the Family Law Bill, which suggested a dichotomy in professional approach by these two professional groups.   It considers further the nature of professional identity for each of the professional groupings, as constructed through the messages delivered by the professional bodies.

I finally tout a book on-topic to this blog! I helped Lisa publish this as part of the new Dissertation Series of ebooks which I wrote about in Publish Your Dissertation as a Digital Book. Comparative LP expert John Flood (Westminster; U of Miami Law) read that post and commented, and then told Lisa about the series (thanks John!), and she and I worked hard to get this out fast (the tables were a coding nightmare). It is available on Amazon for Kindle and its free apps (and so iPad and BlackBerrys too); on Smashwords in nine different formats (even just PDF, though a pretty one with links, and view online); is featured on the Quid Pro website; and will soon be on Apple iTunes, Barnes & Noble for Nook, and Sony ebookstore.

July 22, 2010 in Abstracts Highlights - Academic Articles on the Legal Profession, Comparative Professions, Law & Society, The Practice, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, July 12, 2010


Posted by Jeff Lipshaw

I drove up I-75 from the Detroit area to Charlevoix yesterday, and was listening to the baseball game somewhere near Flint (WTRX, 1330-AM, part of the Detroit Tigers Baseball Network*) and heard an ad that I have to admit caught my attention.  I've debated whether I really wanted to give this lawyer the free advertising that this post would entail, but what the heck.  I leave to Mike and Alan to tell me technically whether there's a professional responsibility issue here; I can't decide if the lawyer is doing a public service or not.

It was a pretty standard divorce lawyer's radio ad ("When Matrimony Turns to Acrimony"), but what caught my attention was that the URL for the website was "dumpmyspouse.com."  It went by quickly, so at first I thought that was the URL for a law firm, and that seemed pretty squirrelly to me.  Would you really be doing a service to your clients by sending out communications to the courts, lawyers, and the public with your e-mail as "joe@dumpmyspouse.com?" (I should add, by the way, that I looked at this particular lawyer's online resume, and he seems to be a fully qualified, upstanding guy.)

I was wrong, however, about the website.  "Dump My Spouse" is not a law firm, or a law firm's URL.  It is a private referral service, obviously originated by this particular Flint lawyer.  It has a map of the state of Michigan with all 83 counties outlined, and you are supposed to click on a county to find a lawyer who is part of the "Dump My Spouse" referral network.  You can register to be part of the network.  I wasn't going to click through all 83 counties, but I clicked on a random sample and, as far as I can tell, this Flint lawyer is still the only member of the network, which may answer the question posed in the preceding paragraph.

De gustibus non est disputandum.

* When I'm in Michigan, I get to watch my beloved Tigers to my heart's content on Fox Sports Detroit, but this pleasure has been sullied somewhat by the fact that 1-800-CALLSAM, the quintessential wee hours cheap advertising personal injury law firm of my professional youth in the Detroit area, has obviously prospered to the point that it is now the major sponsor of the ballgames, including the CALLSAM Post-Game Report.  I think it even has one of the advertising spots right behind home plate, so that you get to watch Justin Verlander aim his slider at the right side of the M in alternate innings.  By the way, just to make it clear that I'm an equal opportunity curmudgeon on this issue, I would get almost as disgusted (note the Latin root by the way) when I'd be listening to "All Things Considered" on NPR, and find out that it was underwritten in part by Silk & Stocking, the biggest law firm in town, and one to whom I was sending thousands of dollars of our legal business, with some goony slogan like "It's an Uncertain World:  Be Advised" or "We Know the Territory."

July 12, 2010 in Law Firms, The Practice | Permalink | Comments (12) | TrackBack (0)