Video of oral argument on sanctions and other interesting issues

The Illinois Supreme Court just heard oral arguments in a case where the administrator of the state's disciplinary authority is appealing a ruling arguing that the sanctions imposed in a particular case were too lenient.  You can watch the video by going here, or, if you prefer just the audio, you can go here.  Surprisingly, the attorney facing the sanctions represents himself!

The case (In re Mulroe), is about an attorney who mishandled a client's money.  To make a long story short, he deposited it into one account, then moved it around into other accounts and eventually took too long to repay it.  He apparently had very sloppy accounting of the money in all his accounts and was guilty of commingling at the very least. It sounds like he had a number of accounts, kept money in all of them and moved the money around using it for whatever he needed to use it at the time.  He claimed he always had enough money, but that was adding the funds in all his accounts at any given time.

The disciplinary authority found the attorney had violated the rules and imposed sanctions but also found that the conduct was not "dishonest" - that it was the result of sloppy bookkeeping rather than of intent to convert the client's funds.  The administrator appealed arguing the sanctions should more severe because the conduct should be considered to be dishonest.  In fact, he argued the conduct was the equivalent of misappropriation.  The administrator argued that the lawyer engaged in a willful violation of the fiduciary duty to maintain client's funds properly.

Interestingly, the controversy seems to revolve around whether the conduct was "dishonest."  In my opinion, however, the better way to approach the issue would be to adopt the view of the ABA Standards for Sanctions which is based not on a value judgment of the character of the conduct but on the “mental states” of the lawyer who engaged in it. 

The ABA Standards recognize three different mental states: intent, knowledge and negligence.  In this case, the administrator is arguing that the attorney acted with "knowledge" while the attorney argues he was merely negligent. 

If you listen to the argument you will hear how at one point the discussion seems to be heading that way, although by raising another alternative mental state: "recklessness."  One of the justices asks the attorney point blank if the conduct does not show that he was reckless which makes the attorney look very uncomfortable.

I have always had a problem with the term recklessness (particularly in torts) because it can only be defined as either a high degree of negligence or as disregard for the consequences of the conduct.  If it is the former, it is negligence; if it is the latter, it is knowledge.  So I am afraid "recklessness" adds nothing but confusion to the issue.

The oral argument is long (almost one hour), but it is worth watching.

How to inflate your legal bills

Here is an interesting article from Forbes that describes some ways in which some lawfirms inflate their fees.  The article is called “Grazing,” Photocopying And Other Tricks Inflate Legal Bills but the most interesting method described is charging clients for the use of conference rooms.  According to the article, "some law firms ... form separate LLCs to rent out their conference rooms, turning them into profit centers instead of a cost of doing business." I have to admit, I had not heard that one before.

Thanks to the Legal Ethics forum for the link.

Court of Appeals affrims conviction even though the defendant had been forced to go to trial on the same day he met his lawyer for the first time

The Legal Profession blog is cmmenting today on a case in which the New Jersey Appellate Division affirmed a drug possession and distribution conviction despite the fact that the defendant and his attorney met for the first time on the morning of the suppression hearing and trial. The court majority concluded that the defendant failed to demonstrate ineffective assistance of counsel or other prejudice. The trial judge scoffed at the need for any preparation, likening a drug case to an intersection collision civil trial. 

It makes me sick to hear that a judge would force a lawyer to represent a criminal defendant without preparation.  What kind of system is that?  What kind of moral grounds do we have to say that our criminal justice system is fair?  This is ridiculous.

One of the justices dissented stating "I deem it self-evident that a rational and just criminal justice system cannot accept as valid a conviction predicated on a scenario in which a defendant, through no fault of his or her own, meets his or her lawyer for the first time on the day the case is scheduled for trial" and concluding that "A system of criminal justice that permits a conviction to stand in a case where an indigent man, through no fault of his own, meets his attorney for the first time on the day the case is scheduled for trial, carries with it the indicia of a "show trial," a sham proceeding in which the outcome is perceived as predetermined."

Some of the issues raised by the different approaches to flat fees

In her blog My Shingle.com, attoreny Carolyn Elefant has posted a very good short comment that puts in context some of the questions about flat fees that I have been discussing in previous posts.  Go here to read her post. 

As I have argued in the past a number of jurisdictions have taken an approach to flat fees that eliminates the distinction between a flat fee and a security retainer and thus the advantage of flat fees as an alternative to hourly billing.  As Ms. Elefant points out in her questions, this creates a number of problems for attorneys seeking to use flat fees.  For example, she asks about the language to be used in a retainer agreement that will allow the lawyer to keep the full fee if the case does not go to trial (and arguably, at least some of the fee is “unearned”). 

For some of my previous comments on this issue (and links to others) go here, here, and here.

When should the statute of limitations begin to run on a legal malpractice claim? Two views on "the continuous representation doctrine"

The legal malpractice law review blog is reporting on two cases that illustrate two very different approaches to the issue of the application of a statute of limitation in a legal malpractice action.

In  Laclette v. Galindo, 184 Cal. App. 4th 919 (2010), the court held that the continuous representation doctrine will toll the statute of limitations in a malpractice action for the period of time the attorney is listed as counsel of record-- even where no active representation is undertaken.  (See here.) 

Meanwhile, in Bennett v. Hill-Boren, P.C., 52 So. 3d 364 (Miss. 2011), the court held that the statute of limitations begins to run on the date the client reasonably should have known that the lawyer was negligent.  (See here.)

Two cases illustrate issues regarding sanctions

I have often commented on inconsistencies regarding sanctions among jurisdictions and sometimes within jurisdictions.  Here are two separate news items that help illustrate the issue once again.

In the first one, the Legal Profession blog is reporting on a case in which an attorney who was suspended for a year and a day in Colorado was then disbarred as reciprocal discipline by the Maryland Court of Appeals (the opinion is available here).  The court is correct in pointing out that it is not required to impose the same sanction imposed by the original discipling court.  But, one wonders why the courts reached such different results.  There is a huge difference between a one year suspension and disbarment.

The other item comes from Illinois where a recent decision by an Illinois Hearing Board recommended a one-year suspension of an attorney who engaged in a wide array of what the Board called "extremely serious" ethics violations that included conflicts of interest and dishonesty to courts. The Board also found there were important aggravating factors including the fact that the lawyer did not show any remorse for the impact his actions had on his clients or on the legal profession that the fact that he had been disciplined in the past.  The question this case raises in my mind relates to the severity of the sanction.  If the conduct was "extremely seriuous" and there were aggravating factors, how come the sanction is merely a one year suspension.  One would think that misconduct described as that serious would have resulted in a higher level of discipline.

In the end, as I tell my students, you can never truly predict what the sanctions will be, which means, regardless of what the conduct is, you always risk disbarment.

How not to practice law: start before you are admitted to the bar

Here is a good story for law students out there:  do not start offering legal advice and acting like a lawyer until you are one officially.  The Legal Profession blog is reporting on a case in which an attorney] was suspended for one for offering legal advice to a prospective client before she was admitted even though she  truthful when she told the possible client that she had a law degree and had passed the bar exam, but was awaiting a background check.  Whatever she said, she held herself out as an attorney when she wasn’t entitled to practice and that is all that matters.  Easy solution; don't do that!

A different type of prosecutorial misconduct

Three of my most recent posts have been about prosecutorial misconduct.  Usually, this topic relates to conduct of prosecutors as they investigate or litigate criminal charges.  Here is a story about a different type of prosecutorial misconduct: abuse of power.  Prof. Jonathan Turley is reporting that a (now former) prosecutor in Tennessee has been charged with official misconduct for allegedly offering leniency in exchange for sex with defendants or their mothers.  Go here for the story.

Justice Stevens on prosecutorial misconduct

A few days ago, I posted that I felt I had been wrong to speculate that the Supreme Court actually wanted to address the problem of prosecutorial misconduct (see here). Well, it turns out maybe I was just partially wrong... in a way...

In a speech Monday night to the Equal Justice Initiative, retired Justice John Paul Stevens criticized the Court's decision in Connick v Thompson stating that it and other decisions have given local prosecutors impunity for violating constitutional rights.   Go here for the full text of the speech. (Thanks to the Wall Street Journal law blog for the link.)

The Wall Street Journal law blog and the Blog of the Legal Times have more on the story.

Short deposition transcript

Short deposition in a divorce case.... WARNING: vulgarity and foul language ahead. Go here for the transcript.