Here is a report from about 2 weeks ago in The Wall Street Journal Law Blog on the saga of attorney Stanley Chesley, a very successful plaintiffs' lawyer who became rich and famous for collecting billions of dollars for his clients in various lawsuits throughout his career - many of them huge mass dissaster/multi-district litigation type cases.
I actually worked with Chesley a long time ago, when I was starting out, in a mass disaster fire case. I remember him as a nice guy. He was more involved in the negotiating part of the case, rather than the day to day preparation and discovery work - what I was working on mostly. I like to say that he was one of those guys who is into "practicing facts" rather than "practicing law", but that is another story.
In any case, here is what bothers me the most about this: here is a guy who has done a lot of good work over a long, successful career. He has helped many people. He also made lots and lots of money. At this point in his life, he does not need any more money, or fame or anything. Now his career and his reputation are in jeopardy. Say it ain't so, Stan!
As reported in the WSJ, Chesley’s attorneys said they planned to appeal to the Kentucky Supreme Court, which will make a final determination on the commissioner’s recommendation. The attorneys cited a federal probe of the case, which didn’t result in charges against Chesley. “His findings are directly contrary to the findings of federal authorities, who fully investigated this case and never considered Mr. Chesley a target of their investigation,” they said in a statement.
For more on the story go to the Abnormal Use blog.
Friday, March 11, 2011
Should experts in legal malpractice cases be limited to practicing lawyers? -- UPDATED
The Legal Malpractice law review blog is reporting on a recent case from Georgia that holds that expert witnesses in a legal malpractice case must be practicing lawyers. The court apparently ruled the expert in question was not qualified because he did not (1) represent entities or individuals in court; (2) draft or file pleadings in judicial proceedings; or (3) prepare the type of documents or perform the legal tasks at issue in the litigation. Here is the link to the story. The case is called Wilson v. McNeely.
The ruling in the case, however, is not as broad as the cited report makes it to be. The decision is based on a Georgia statute that states that the testimony of an expert “shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert [w]as licensed by an appropriate regulatory agency to practice his or her profession in the state in which such expert was practicing or teaching in the profession at such time [.]” In the case, the court found that the expert in question was not practicing law at the time of the alleged malpractice.
When I read the report by the legal malpractice law review blog, I thought the case had held that there was a strict rule banning non-practicing lawyers from serving as experts. For this reason, I argued that this was a bad decision. I argued that I did not think that a strict rule would be a good idea because it would preclude the use of testimony from knowledgeable people who could englighten the court and jury even if they did not practice. For that reason I argued the better approach would be to rule on the matter on a case by case basis.
Evidently, the text of the statute does not preclude academics from testifying, so my initial objection about the case was unnecessary.
I do think the text of the statute is peculiar in other ways, though. Why limit the expert to someone who was practicing at the time of the conduct? Couldn't someone who was admitted later have an expert opinion on the matter? Also, the statute requires that the practicing lawyer be admitted in the state where the conduct happens, but seems to say an academic can be based anywhere. Why the distinction? Again, I think the effect of these kinds of details should go to credibility rather than to admissibility, or, at least, should be dealt with on a case by case basis.
The ruling in the case, however, is not as broad as the cited report makes it to be. The decision is based on a Georgia statute that states that the testimony of an expert “shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert [w]as licensed by an appropriate regulatory agency to practice his or her profession in the state in which such expert was practicing or teaching in the profession at such time [.]” In the case, the court found that the expert in question was not practicing law at the time of the alleged malpractice.
When I read the report by the legal malpractice law review blog, I thought the case had held that there was a strict rule banning non-practicing lawyers from serving as experts. For this reason, I argued that this was a bad decision. I argued that I did not think that a strict rule would be a good idea because it would preclude the use of testimony from knowledgeable people who could englighten the court and jury even if they did not practice. For that reason I argued the better approach would be to rule on the matter on a case by case basis.
Evidently, the text of the statute does not preclude academics from testifying, so my initial objection about the case was unnecessary.
I do think the text of the statute is peculiar in other ways, though. Why limit the expert to someone who was practicing at the time of the conduct? Couldn't someone who was admitted later have an expert opinion on the matter? Also, the statute requires that the practicing lawyer be admitted in the state where the conduct happens, but seems to say an academic can be based anywhere. Why the distinction? Again, I think the effect of these kinds of details should go to credibility rather than to admissibility, or, at least, should be dealt with on a case by case basis.
Saturday, March 5, 2011
How not to practice law: charge money for nothing
My students will get a kick out of this story, published yesterday in the Legal Profession Blog, which deals with the topic we discussed in class this week.
Here is a quick reminder of a pretty easy to understand principle: you can't charge a fee and then not provide the services the fee was supposed to pay for. Duh!
This basic principle is illustrated in a decision of the Maryland Court of Appeals. The attorney was disbarred for doing just that. He collected fees in two cases, pocketed them and then did not perform the services. Note that in this scenario, there is yet another violation of the rules: since the fees were paid to perform future services the attorney was supposed to place them in the client trust account. Instead he pocketed the money (and used it for his own personal purposes).
Now here is the kicker. How much money do you think was worth getting disbarred for? The total amount: $1,100.
Maybe I should assign this case to my students because it actually illustrates two other principles I tell them about emphatically in class: (1) it does not matter what the conduct is, because of the lack of guidelines when it comes to sanction, you always risk disbarment. Is it really worth risking it for $1,000? And, (2) having said that, if there is one thing you can be 99% sure of in terms of sanctions it is that if you steal money from a client, it does not matter how much, you will likely get disbarred. And you should; period; end of story.
Here is a quick reminder of a pretty easy to understand principle: you can't charge a fee and then not provide the services the fee was supposed to pay for. Duh!
This basic principle is illustrated in a decision of the Maryland Court of Appeals. The attorney was disbarred for doing just that. He collected fees in two cases, pocketed them and then did not perform the services. Note that in this scenario, there is yet another violation of the rules: since the fees were paid to perform future services the attorney was supposed to place them in the client trust account. Instead he pocketed the money (and used it for his own personal purposes).
Now here is the kicker. How much money do you think was worth getting disbarred for? The total amount: $1,100.
Maybe I should assign this case to my students because it actually illustrates two other principles I tell them about emphatically in class: (1) it does not matter what the conduct is, because of the lack of guidelines when it comes to sanction, you always risk disbarment. Is it really worth risking it for $1,000? And, (2) having said that, if there is one thing you can be 99% sure of in terms of sanctions it is that if you steal money from a client, it does not matter how much, you will likely get disbarred. And you should; period; end of story.
Friday, March 4, 2011
Did She-Hulk violate the rules against solicitation of clients?
Law and the Multiverse is a blog that addresses legal issues in the alternate world of superheroes and villains. Aside from the superheroes' common connection with law enforcement and other aspects of the law, it turns out that some of them are actually lawyers in their alter-ego lives. I am not a comic books kind of guy, but if I remember correctly Dare-Devil is a lawyer and, as I just learned, so is "She Hulk." (Actually, I have to admit I had never heard of "She Hulk" to begin with, but that is neither here nor there....).
In any case, here is a link to a recent discussion on whether "She Hulk" violated the rules against solicitation of clients when, after saving a victim from an attack by some villains, she offered to represent the victim in a case against other superheroes who did not help her.
PS: I will admit to having watched a few episodes of Birdman, Attorney at Law, which is a pretty crazy show.
In any case, here is a link to a recent discussion on whether "She Hulk" violated the rules against solicitation of clients when, after saving a victim from an attack by some villains, she offered to represent the victim in a case against other superheroes who did not help her.
PS: I will admit to having watched a few episodes of Birdman, Attorney at Law, which is a pretty crazy show.
Thursday, March 3, 2011
Prosecution for jury nullification
When discussing the limits of proper argument by lawyers in front of a jury I ask my students whether a lawyer should be disciplined for asking the jury to disregard the law. The approach to the discussion may change this year given a story published by the New York Times this week. In it, the NYT reports that prosecutors in New York have taken the unusual step of having a jury nullification advocate indicted on a charge that distributing of pamphlets informing jurors of their right to disregard the law at the courthouse entrance violates a law against jury tampering.
Go here for the story in the New York Times and here for the story in the Wall Street Journal law blog.
Go here for the story in the New York Times and here for the story in the Wall Street Journal law blog.
Wednesday, March 2, 2011
Billing methods
Yesterday I discussed different billing methods with my students. We spent most of our time talking about contingency fees, but we also mentioned hourly fees and flat fees. We were all familiar with these methods. I have to confess, though, that, until today, I had never heard of anyone billing "by the inch," ... meaning by how thick the file is. Here is a story about an expert witness who claimed he charged $150 per inch of paper....
Proposed bill to enforce ethics rules at the Supreme Court
In the wake of a spirited debate about Justices Scalia and Thomas' decisions to appear before conservative groups and legislators, which included a letter signed by more than 100 law professors (see here), two Democratic lawmakers have proposed a bill that would require a process for taking in ethics complaints about the justices of the Supreme Court, and for investigating those complaints. It would require justices to explain their decisions to recuse or not recuse from a case, and if a justice has turned down a motion to disqualify, it would allow the rest of the Court to disqualify the justice. For more on the story go here.
More on the finding that Feinberg is not neutral in BP oil spill case
About a month ago, I reported that a federal judge ruled that it was misleading for Ken Feinberg to call himself "neutral" or "independent" in administering BP's $20 billion oil spill victim compensation fund. See here. As a result, the website for the Gulf Coast Claims Facility now states the Feinberg is acting "for and on behalf of BP."
According to an updated in the Legal Ethics Forum, the website now states "The Gulf Coast Claims Facility ("GCCF") is the official way for Individuals and Businesses to file claims for costs and damages incurred as a result of the oil discharges due to the Deepwater Horizon Incident on April 20, 2010 ("the Spill"). The GCCF is administered by Kenneth R. Feinberg ("the Claims Administrator"), who is responsible for all decisions relating to the administration and processing of claims submitted to the GCCF. Mr. Feinberg and the GCCF are acting for and on behalf of BP Exploration Production Inc. in fulfilling BP's statutory obligations as a responsible party under the Oil Pollution Act of 1990."
According to an updated in the Legal Ethics Forum, the website now states "The Gulf Coast Claims Facility ("GCCF") is the official way for Individuals and Businesses to file claims for costs and damages incurred as a result of the oil discharges due to the Deepwater Horizon Incident on April 20, 2010 ("the Spill"). The GCCF is administered by Kenneth R. Feinberg ("the Claims Administrator"), who is responsible for all decisions relating to the administration and processing of claims submitted to the GCCF. Mr. Feinberg and the GCCF are acting for and on behalf of BP Exploration Production Inc. in fulfilling BP's statutory obligations as a responsible party under the Oil Pollution Act of 1990."
How not to practice law: try to help your client by breaking the law
I usually make fun of the lawyer's whose stories end up in my running list of "how not to practice law." This is not one of those stories. This is a sad story of a lawyer who meant well but really did not think it through when deciding how to try to help his client. Here is the story, via Don Lundberg and Mike Frisch of the Legal Profession blog:
The attorney was defending a case involving felony methamphetamine dealing charges. He knew the identity of the state's confidential informant and devised a plan to destroy the informant's credibility by showing that he was still dealing drugs. The attorney arranged for two juveniles to purchase marijuana from the informant and assured them that the conduct was legal. The attorney sought the $200 from the client's mother, telling her that it was a litigation cost, and gave the money to the juveniles to fund the purchase.
The juveniles bought the drugs and the attorney recorded the transaction. However, the juveniles only used $50 to buy a smaller amount of marijuana and used the rest for their own purposes. The attorney then told the juveniles to hold on to the evidence but they smoked it instead. Then the attorney called upon the police and a prosecutor to take possesion of the marijuana, bringing the conduct to light. Instead, the attorney was arrested and charged. He was convicted and the Indiana Court of Appeals affirmed.
The court concluded that the attorney did not stand on "the same “legal footing” as law enforcement officers for the purpose of conducting an illegal drug buy." The court concluded that "the legislature has clearly identified those persons legally authorized to engage in law enforcement, and defense attorneys are not included....An attorney is not exempt from the criminal law even if his only purpose is the defense his client...This is not a close case."
The attorney was defending a case involving felony methamphetamine dealing charges. He knew the identity of the state's confidential informant and devised a plan to destroy the informant's credibility by showing that he was still dealing drugs. The attorney arranged for two juveniles to purchase marijuana from the informant and assured them that the conduct was legal. The attorney sought the $200 from the client's mother, telling her that it was a litigation cost, and gave the money to the juveniles to fund the purchase.
The juveniles bought the drugs and the attorney recorded the transaction. However, the juveniles only used $50 to buy a smaller amount of marijuana and used the rest for their own purposes. The attorney then told the juveniles to hold on to the evidence but they smoked it instead. Then the attorney called upon the police and a prosecutor to take possesion of the marijuana, bringing the conduct to light. Instead, the attorney was arrested and charged. He was convicted and the Indiana Court of Appeals affirmed.
The court concluded that the attorney did not stand on "the same “legal footing” as law enforcement officers for the purpose of conducting an illegal drug buy." The court concluded that "the legislature has clearly identified those persons legally authorized to engage in law enforcement, and defense attorneys are not included....An attorney is not exempt from the criminal law even if his only purpose is the defense his client...This is not a close case."
Monday, February 28, 2011
How not to bill a client
Tomorrow in class I will start discussing issues related to fees. Right on cue, the website "Say what?!" - which tells funny but true stories of lawyers in Texas - posted this story:
[A lawyer from Houston] has clients who were engaged in a declaratory judgment action filed in another state. He asked outside counsel to conduct “an expansive review of possible jurisdictional issues related to this particular battle which included a number of non- U.S. business entities.” However, when he received the billing statement, he noticed the following provision: Per instructions ...., conduct an expensive search into any and all possible jurisdictional issues."
[A lawyer from Houston] has clients who were engaged in a declaratory judgment action filed in another state. He asked outside counsel to conduct “an expansive review of possible jurisdictional issues related to this particular battle which included a number of non- U.S. business entities.” However, when he received the billing statement, he noticed the following provision: Per instructions ...., conduct an expensive search into any and all possible jurisdictional issues."
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