A couple of days ago, I posted a note about a few new cases involving lawyers who prepared wills for clients in which the lawyers named themselves or their wives as beneficiaries. Using one of these cases as the basis for his argument, Mike Frisch of the the Legal Profession blog has posted some thoughts on lawyers' discipline here.
He starts by arguing that "[i]f ever there is a case to be made for non-public discipline," one of those three cases is it because it involved an aging practitioner who probably just made a good faith mistake. He had checked case law that was later trumped by changes in the governing rule, he acted in a manner that negates any hint of an improper intent and, in the end, the "inheritance" was an end table and some tools. From there he goes on to discuss the other possible end of the spectrum when it comes to discipline: a "zero tolerance" policy for ethics violations. He thinks that such a system would not only be a bad idea, it would never work.
Should a bar prosecutor be able to exercise discretion and spare a senior lawyer in the process of winding down a 60 + year practice of the shame of a public sanction?
I do not think so. I don't think there is a good case to be made for private discipline. I think all discipline, to be fully effective, should be public. I think that the better approach is to continue to allow the authorities to decide the appropriate sanctions to be imposed on a case by case basis. That way, the attorney who makes a relatively minor mistake would receive a minor sanction. Yet, if the sanction is public, the attorney - and others - would learn from that mistake and be more inclined not to engage in similar conduct in the future.
Monday, September 5, 2011
Should the court have imposed sanctions in lawsuit for "bad mothering"?
Tort reformers love to claim that there are too many frivolous lawsuits filed in this country. Even though the evidence does not necessarily back up the argument, every now and then a new case comes along that helps them advance the allegation. Here is the latest one; one that includes some laughable claims for which the lawyers representing the plaintiffs were lucky not to get disciplined.
In this case, two adult children sued their mother - whom the father had divorced - arguing that she was a bad mother. One of the lawyers for the plaintiffs was the plaintiff's own father and ex-husband of the defendant. Among other things, one of the plaintiffs alleged that his mother told him - when he was 7 years old - that she would call the police if he didn’t buckle his seat belt, that when he went to college she did not send him a "care package" until his third year there, that she either did not send birthday cards or that, when she did, she did not send gifts and that she changed her last name when she remarried.
Based on these and other similar allegations (you really should read the opinion to get an accurate impression of the allegations), the children argued the mother's conduct constituted either intentional or negligent infliction of emotional distress. In response, the court found for the defendant and dismissed the claims finding - correctly - that the allegations simply did not support a prima facie case. Many of the allegations, the court concluded, "consist or snide and insulting remarks" and relate to parental discipline, which are not actionable.
As the court suggests, maybe the mother was not generous or fully sensitive to the needs of her children, but that is not conduct for which the law recognizes a remedy in tort law. A ruling in favor of the children, the court said, “could potentially open the floodgates to subject family child rearing to nonconstructive excessive judicial scrutiny and interference."
The case is called Miner v Garrity and you can read the order of the court dismissing the complaint here.
For more on the story, go to the Chicago Tribune or take a look at the coverage in Lowering the Bar - a blog dedicated to legal humor, and to the comments by readers of the Wall Street Journal law blog - all of which either make fun of the lawyer and plaintiffs or wonder why the plaintiffs' lawyers were not sanctioned.
In this case, two adult children sued their mother - whom the father had divorced - arguing that she was a bad mother. One of the lawyers for the plaintiffs was the plaintiff's own father and ex-husband of the defendant. Among other things, one of the plaintiffs alleged that his mother told him - when he was 7 years old - that she would call the police if he didn’t buckle his seat belt, that when he went to college she did not send him a "care package" until his third year there, that she either did not send birthday cards or that, when she did, she did not send gifts and that she changed her last name when she remarried.
Based on these and other similar allegations (you really should read the opinion to get an accurate impression of the allegations), the children argued the mother's conduct constituted either intentional or negligent infliction of emotional distress. In response, the court found for the defendant and dismissed the claims finding - correctly - that the allegations simply did not support a prima facie case. Many of the allegations, the court concluded, "consist or snide and insulting remarks" and relate to parental discipline, which are not actionable.
As the court suggests, maybe the mother was not generous or fully sensitive to the needs of her children, but that is not conduct for which the law recognizes a remedy in tort law. A ruling in favor of the children, the court said, “could potentially open the floodgates to subject family child rearing to nonconstructive excessive judicial scrutiny and interference."
The case is called Miner v Garrity and you can read the order of the court dismissing the complaint here.
For more on the story, go to the Chicago Tribune or take a look at the coverage in Lowering the Bar - a blog dedicated to legal humor, and to the comments by readers of the Wall Street Journal law blog - all of which either make fun of the lawyer and plaintiffs or wonder why the plaintiffs' lawyers were not sanctioned.
Sunday, September 4, 2011
How not to practice law: prepare a will for the client in which the client names you or your wife as the beneficiary
There must be something going around about this... Three separate cases reported within the last couple of weeks involved attorneys getting disciplined for preparing wills in which they named themselves or their wives as beneficiaries.
In one case, a New York attorney appointed as a guardian to an incapacitated person was disbarred for helping her prepare a will in favor of the attorney's wife. Interestingly, he used her maiden name. I wonder why? You can read the opinion here.
In a similar case, however, the Illinois Review Board found that a censure was the appropriate sanction for an attorney who drafted a will that left a small portion of the deceased's residual estate to the attorney's wife. That opinion is available here.
In the third case, the Illinois Review Board recommended that a public censure for an attorney who drafted a series of trusts and wills in which he was one of the beneficiaries. In this case, the board found it significant that there was a close, longstanding relationship between the attorney and the deceased. That opinion is available here.
In one case, a New York attorney appointed as a guardian to an incapacitated person was disbarred for helping her prepare a will in favor of the attorney's wife. Interestingly, he used her maiden name. I wonder why? You can read the opinion here.
In a similar case, however, the Illinois Review Board found that a censure was the appropriate sanction for an attorney who drafted a will that left a small portion of the deceased's residual estate to the attorney's wife. That opinion is available here.
In the third case, the Illinois Review Board recommended that a public censure for an attorney who drafted a series of trusts and wills in which he was one of the beneficiaries. In this case, the board found it significant that there was a close, longstanding relationship between the attorney and the deceased. That opinion is available here.
Discipline for conduct outside the practice of law
One of the first lessons I want my students to learn is that the disciplinary authorities can, and often do, discipline an attorney for conduct outside the practice of law. There are many cases that can be used to illustrate this, and now we have a brand new one courtesy of the Illinois Hearing Board. In this case, called In the Matter of Golden, the Board concluded that the attorney in question lied to his daughter's school so that she could get financial aid for which she did not qualify. He submitted financial aid applications which included false representations and fraudulently altered documents for three separate academic years. Even though the conduct was not within the practice of law and even though the attorney had no record of prior discipline, the Board found the conduct was so dishonest that the attorney should be disbarred. You can read the opinion here.
Saturday, September 3, 2011
New Formal Opinions from the ABA Standing Committee on Ethics and Professional Responsibility
Last month the ABA's Committee on Ethics and Professional Responsibility issued two new formal opinions. There are available through the website of the ABA Center for Professional Responsibility. Here are the official summaries:
Formal Opinion 11-459: Duty to Protect the Confidentiality of E-mail Communications with One’s Client
A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access. In the context of representing an employee, this obligation arises, at the very least, when the lawyer knows or reasonably should know that the client is likely to send or receive substantive client-lawyer communications via e-mail or other electronic means, using a business device or system under circumstances where there is a significant risk that the communications will be read by the employer or another third party.
Formal Opinion 11-460: Duty when Lawyer Receives Copies of a Third Party’s E-mail Communications with Counsel
When an employer’s lawyer receives copies of an employee’s private communications with counsel, which the employer located in the employee’s business e-mail file or on the employee’s workplace computer or other device, neither Rule 4.4(b) nor any other Rule requires the employer’s lawyer to notify opposing counsel of the receipt of the communications. However, court decisions, civil procedure rules, or other law may impose such a notification duty, which a lawyer may then be subject to discipline for violating. If the law governing potential disclosure is unclear, Rule 1.6(b)(6) allows the employer’s lawyer to disclose that the employer has retrieved the employee’s attorney-client e-mail communications to the extent the lawyer reasonably believes it is necessary to do so to comply with the relevant law. If no law can reasonably be read as establishing a notification obligation, however, then the decision whether to give notice must be made by the employer-client, and the employer’s lawyer must explain the implications of disclosure, and the available alternatives, as necessary to enable the employer to make an informed decision. Read the full opinion here.
Wednesday, August 31, 2011
IL Supreme Court announces decision that illustrates why a statute of repose in legal malpractice cases is a bad idea
Illinois is the only state I know of that has a statute of repose that applies to legal malpractice actions. This means that, as in all statute of repose cases, an injured plaintiff can lose the right to recover against a lawyer before the client finds out he or she has suffered that injury. This, in my humble opinion, is absurd, and what makes it even worse is that the period of time recognized in the statute is only six years. Typically, statutes of repose in other areas of the law are at least ten years - although some have been lowered in response to tort reform efforts.
This summer the Illinois Supreme Court issued an opinion that illustrates everything that is wrong with the Illinois approach to the issue. In this case, the plaintiff, a widow, found out after her husband’s death that, due to the negligence of the defendant attorney, she was not entitled to her house by right of survivorship. She sued the lawyer and the lawyer argued the claim should be dismissed under the statute of repose. The lower court granted the motion and the Supreme Court affirmed.
The Illinois statute of repose states that a claim may not be brought more than six years from the date on which the complained-of act or omission occurred. There is an exception to this, however, where the injury does not occur until the death of the client, in which case suit may be brought within two years of the demise. Here the court held the injury occured when the lawyer was negligent, not at the decedent’s death and held the case had to be dismissed.
Applying a statute of repose in legal malpractice cases is a terrible policy and Justice Freeman wrote a dissenting opinion that does a great job explaining why. First of all, it must be understood that the plaintiff here is not the lawyer’s client but a beneficiary of the lawyer’s work. More importantly, a future beneficiary. The lawyer’s work would not have any effect on the plaintiff at the time the lawyer performed his work negligently but much later in the future when the beneficiary would acquire the right to the benefits supposedly provided by the lawyer’s work. Thus, it is simply absurd to claim that the beneficiary suffered anything at all when the lawyer failed to draft some documents while her husband was alive.
Second, it is illogical to assume that a beneficiary would have to double check - presumably with another lawyer - the accuracy of the lawyer’s work when the lawyer performed it in order to discover the lawyer’s negligence at the time it happened.
Third, given the facts of the particular case, to survive the effect of the statute of repose, the plaintiff would have had to have sued while her husband was still alive, at which time she had not suffered the injury, had no knowledge that she was at risk of suffering an injury and, more importantly, since her husband was still alive, had no right to sue to begin with.
I agree with Justice Freeman when he says the result is absurd and unjust and that what it does is protect negligent lawyers. You can judge for yourself by reading the opinion here. The case is called Snyder v. Heidelberger.
This summer the Illinois Supreme Court issued an opinion that illustrates everything that is wrong with the Illinois approach to the issue. In this case, the plaintiff, a widow, found out after her husband’s death that, due to the negligence of the defendant attorney, she was not entitled to her house by right of survivorship. She sued the lawyer and the lawyer argued the claim should be dismissed under the statute of repose. The lower court granted the motion and the Supreme Court affirmed.
The Illinois statute of repose states that a claim may not be brought more than six years from the date on which the complained-of act or omission occurred. There is an exception to this, however, where the injury does not occur until the death of the client, in which case suit may be brought within two years of the demise. Here the court held the injury occured when the lawyer was negligent, not at the decedent’s death and held the case had to be dismissed.
Applying a statute of repose in legal malpractice cases is a terrible policy and Justice Freeman wrote a dissenting opinion that does a great job explaining why. First of all, it must be understood that the plaintiff here is not the lawyer’s client but a beneficiary of the lawyer’s work. More importantly, a future beneficiary. The lawyer’s work would not have any effect on the plaintiff at the time the lawyer performed his work negligently but much later in the future when the beneficiary would acquire the right to the benefits supposedly provided by the lawyer’s work. Thus, it is simply absurd to claim that the beneficiary suffered anything at all when the lawyer failed to draft some documents while her husband was alive.
Second, it is illogical to assume that a beneficiary would have to double check - presumably with another lawyer - the accuracy of the lawyer’s work when the lawyer performed it in order to discover the lawyer’s negligence at the time it happened.
Third, given the facts of the particular case, to survive the effect of the statute of repose, the plaintiff would have had to have sued while her husband was still alive, at which time she had not suffered the injury, had no knowledge that she was at risk of suffering an injury and, more importantly, since her husband was still alive, had no right to sue to begin with.
I agree with Justice Freeman when he says the result is absurd and unjust and that what it does is protect negligent lawyers. You can judge for yourself by reading the opinion here. The case is called Snyder v. Heidelberger.
Defendant who pleads nolo contendere is precluded from suing for legal malpractice
Here is a recent case in a long line of bad cases that hold that a criminal defendant does not have a right to sue his or her attorney for legal malpractice. I had posted about it in my torts blog this summer but forgot to mention it here so here it is... In this instance, the West Virginia Supreme Court held that a criminal defendant who, having obtained habeas relief, pled nolo contendere to the criminal charges. In a dissenting opinion, Justice Ketchum argued that the court's decision is contrary to 148 years of precedent as well as rules of procedure and evidence. He also argues that the decision "obliterates a criminal plea that served a very useful purpose." You can read the opinion here and the dissent here.
Friday, August 26, 2011
How not to practice law: double bill the court!
Adding to our running list of examples on how now to parctice law, here is the story of a Washington attorney who has been suspended from practicing law in the District of Columbia for a year after it was revealed that he double billed D.C. Superior Court for legal services rendered to indigent defendants on 162 occasions! Go here for the story. Go here for more "how not to practice law" stories.
Thursday, August 25, 2011
Documentaries -- UPDATED
In my post about the West Memphis Three earlier today I mentioned the documentary "Paradise Lost," which I highly recommend. It was also included in the list of "50 Documentaries to See Before You Die." This is the title of a series in the Current TV cable channel that has been running this month. I am a big fan of documentaries and the selection of "the 50" so far has been very good, but I don't think they are going to include all of my favorites. So here is my list of the best law related documentaries I have seen, in no particular order. I encourage you to look them up.
Four Little Girls
William Kunstler: Disturbing the Universe
Paradise Lost
Brother's Keeper
Incident at Oglala (here)
Waco: rules of engagement
Cheney’s Law (here)
The Thin Blue Line
The Trials of Henry Kissinger (here)
Terror’s Advocate (here and here)
The U.S. vs. John Lennon
The Most Dangerous Man in America: Daniel Ellsberg and the Pentagon Papers
The Chair
Chicago 10
Now is your turn. What law related documentaries do you recommend? There are two more documentaries I would like to mention but I have not seen them yet: The Trials of Darryl Hunt and Hot Coffee. They are on my list of movies to see soon...
Four Little Girls
William Kunstler: Disturbing the Universe
Paradise Lost
Brother's Keeper
Incident at Oglala (here)
Waco: rules of engagement
Cheney’s Law (here)
The Thin Blue Line
The Trials of Henry Kissinger (here)
Terror’s Advocate (here and here)
The U.S. vs. John Lennon
The Most Dangerous Man in America: Daniel Ellsberg and the Pentagon Papers
The Chair
Chicago 10
Now is your turn. What law related documentaries do you recommend? There are two more documentaries I would like to mention but I have not seen them yet: The Trials of Darryl Hunt and Hot Coffee. They are on my list of movies to see soon...
On the release of the West Memphis Three
In 1993 three eight-year-old boys were found dead in a muddy creek in West Memphis, a small town in eastern Arkansas. The discovery of their bodies led to hysterical allegations of satanic rituals and eventually resulted in the arrest and trial of three other kids. Their case became famous in part because of an outstanding documentary called Paradise Lost: The Child Murders at Robin Hood Hills.
One of the kids confessed but then recanted; the others always maintained their innocence. At their trials very little evidence was brought forward to connect them to the murders but they were all convicted.
Having served more than 18 years in prison, all three were released last week when, after years of appeals, the state of Arkansas accepted a rare plea by the three men (now in their 30s). They were sentenced to time served and released immediately.
A lot has been written about this development in the case over the past few days. You can google "West Memphis Three" for lots of information. (By the way, did you know "google" is now a verb?)
Also, here is a link to a podcast from the Legal Talk Network discussing the case.
If you have not seen the documentary, you really should.
One of the kids confessed but then recanted; the others always maintained their innocence. At their trials very little evidence was brought forward to connect them to the murders but they were all convicted.
Having served more than 18 years in prison, all three were released last week when, after years of appeals, the state of Arkansas accepted a rare plea by the three men (now in their 30s). They were sentenced to time served and released immediately.
A lot has been written about this development in the case over the past few days. You can google "West Memphis Three" for lots of information. (By the way, did you know "google" is now a verb?)
Also, here is a link to a podcast from the Legal Talk Network discussing the case.
If you have not seen the documentary, you really should.
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