The title says it all. If you want to be admitted to the practice of law, it is really not a good idea to try to cheat during the bar exam. ..just sayin'...
The Legal Profession blog is reporting today on a case in which the State Board of Law Examiners found that the petitioner was trying to cheat during the bar exam. The Appellate Division of New York's Supreme Court
affirmed the decision nullifying the results of the exam. Go here for a copy of the court's order.
Friday, December 30, 2011
Wednesday, December 28, 2011
More on the controversy over Stephen Glass' request for admission to the bar - UPDATED (Dec. 27)
A few days ago I wrote about the controversy over the request for admission to the bar by Stephen Glass, a former journalist who was exposed for having falsified many of the stories he wrote for important national magazines over the years - including some he wrote while attending law school. See my original comment on the case here. Reuters has a new story on the case here.
UPDATE 12-10-11: Stephen Diamond has posted a comment called "Now it’s Judge Honn’s turn to be the state-bar establishment laughing stock: The Stephen A. Glass embarrassment," here.
UPDATE #2: 12/27/11: (by the Legal Ethics Forum): An op-ed published by the New York Times (here) argues in favor of admission to the bar. The Washington Post has more on the story here. Here is a link to the 1998 Vanity Fair article Shattered Glass which offers a detailed account of the history behind this case. The article was later turned into a film of the same name.
UPDATE 12-10-11: Stephen Diamond has posted a comment called "Now it’s Judge Honn’s turn to be the state-bar establishment laughing stock: The Stephen A. Glass embarrassment," here.
UPDATE #2: 12/27/11: (by the Legal Ethics Forum): An op-ed published by the New York Times (here) argues in favor of admission to the bar. The Washington Post has more on the story here. Here is a link to the 1998 Vanity Fair article Shattered Glass which offers a detailed account of the history behind this case. The article was later turned into a film of the same name.
Top stories of the year
As usual, around this time of the year we start seeing "top ten lists" for everything. Go here for the Top Legal Ethics Stories of the Year list as compiled by the Legal Ethics Forum.
How not to practice law: host a website with nudity and profanity and then go ahead and post statements that suggest you are a drug user
I am constantly amazed at how people post stuff on the internet forgetting that others have access to what they post... I like to tell my students jokingly (although it is not entirely a joke) that "facebook makes you dumb." Here is another example: In a recent case the South Carolina Supreme Court disbarred an attorney who did not reply to a number of alleged ethics violations, among them a charge that he maintained a webpage with the name of his law firm on MySpace.com that contained profanity and nudity along statements that suggested he had been using drugs during the week prior to posting the comment.
Listen people: if you post something on the internet, others will read it. It can and will be used against you.
Listen people: if you post something on the internet, others will read it. It can and will be used against you.
Friday, December 16, 2011
The New Jersey approach to sanctions
As Mike Frisch of the Legal Profession Blog recently stated, "there was a time when New Jersey had the reputation for being tough on attorney misconduct. That time has obviously long since passed." His comment was prompted by a couple of new cases that display what he called "the forgiving nature of attorney discipline in New Jersey."
In the first case, an attorney had been suspended for three months but failed to file the required affidavit demonstrating compliance with the suspension order. He then failed to participate in the ensuing bar proceedings. The Office of Attorney Ethics sought a three-month suspension but the Disciplinary Review Board concluded that no further suspension was appropriate.
In the second case, the attorney was censured for "engaging in the practice of issuing trust checks against uncollected funds" which resulted in negligent misappropriation. He had been reprimanded in 1998 for filing false unemployment insurance claims and again in 2009 for a conflict of interest and failure to withdraw from representation. As a result, while claiming that the attorney's "cavalier attitude toward the disciplinary system cannot be tolerated," the imposed sanction was merely a reprimand.
In the first case, an attorney had been suspended for three months but failed to file the required affidavit demonstrating compliance with the suspension order. He then failed to participate in the ensuing bar proceedings. The Office of Attorney Ethics sought a three-month suspension but the Disciplinary Review Board concluded that no further suspension was appropriate.
In the second case, the attorney was censured for "engaging in the practice of issuing trust checks against uncollected funds" which resulted in negligent misappropriation. He had been reprimanded in 1998 for filing false unemployment insurance claims and again in 2009 for a conflict of interest and failure to withdraw from representation. As a result, while claiming that the attorney's "cavalier attitude toward the disciplinary system cannot be tolerated," the imposed sanction was merely a reprimand.
Permanent ban from the SEC as a sanction
Breaking from tradition, the Securities and Exchange Commission sought sanctions in a recent case for ethics violations that were not tethered to violations of securities law. In fact, the Commission imposed a lifetime ban on a commercial litigator whom the agency accused of violating attorney ethics rules. Today, the BLT is reporting that the Court of Appeals for the DC Circuit unanimously upheld the commission's sanction. Go here for more on the story. Go here for the decision of the court.
Proper sanctions? You be the judge
Here is a story from the Pennsylvania Disciplinary Board (via the Legal Profession blog).
An attorney was retained to pursue claims for injuries sustained by a passenger in a plane that collided with a truck on the runway. In the suit, he asserted that the client's injuries were solely caused by the accident. The client so testified at her deposition. The client also testified that she had had no contact with the attorney prior to the plane accident.
However, this was false. The client had been in a car accident two months before and had retained the attorney to pursue the claim.
The attorney failed to correct her false deposition testimony, contending that he did not "contemporaneously realize" that the testimony was false.
I am sorry, what? So, at the time of the deposition the attorney had forgotten that the client was his client in another on going case? Or was it that the attorney did not realize the client lied when she said she had not contacted the attorney? Since he must have known she had contacted him, I am not sure it is difficult to see the statement was incorrect.
What sanctions would you impose? The Board imposed a public censure. The opinion is available here.
An attorney was retained to pursue claims for injuries sustained by a passenger in a plane that collided with a truck on the runway. In the suit, he asserted that the client's injuries were solely caused by the accident. The client so testified at her deposition. The client also testified that she had had no contact with the attorney prior to the plane accident.
However, this was false. The client had been in a car accident two months before and had retained the attorney to pursue the claim.
The attorney failed to correct her false deposition testimony, contending that he did not "contemporaneously realize" that the testimony was false.
I am sorry, what? So, at the time of the deposition the attorney had forgotten that the client was his client in another on going case? Or was it that the attorney did not realize the client lied when she said she had not contacted the attorney? Since he must have known she had contacted him, I am not sure it is difficult to see the statement was incorrect.
What sanctions would you impose? The Board imposed a public censure. The opinion is available here.
Wednesday, December 14, 2011
Malpractice on 34th Street
Abnormal Use has an interesting take on the movie Miracle on 34th Street, a Christmas classic. As you may recall, the movie's climax is a trial scene. Abnormal Use reviews the film and discusses how inaccurate the courtroom scenes are here.
Conviction reversed because of improper argument by prosecutor
A conviction of a criminal defendant for the murder of his wife was reversed by the Mississippi Supreme Court because, as part of the closing argument, the prosecutor repeatedly asked the jurors how they would feel with a loaded shotgun pointed at their face.
Thanks to the Legal Profession blog for the link.
Thanks to the Legal Profession blog for the link.
Monday, December 12, 2011
Spectacular incompetence
I once used the title "incomparable incompetence" to describe the conduct of attorneys and the judge in a particular case (see here). Then a similar case came along and I again questioned the competence of those involved (here). Now a judge has beaten me to the punch, calling the conduct of a criminal defense lawyer and the prosecutor in the case "spectacularly incompetent" according to the Houston Chronicle (here).
In this new case, the defendant was convicted and sentenced to life in prison for armed robbery. He insisted he was innocent, but could not remember exactly where he was on the day of the robbery. The fact is he had a pretty good alibi, he just did not remember it. He was in prison; a fact that apparently was evident from the information provided to the defendant's lawyer and the prosecutor in the defendant's criminal record.
Defense counsel discovered the evidence of the alibi after the conviction and the court recently dismissed the charges. In doing so, the judge reportedly stated,that "It boggles the mind that neither side knew about this during trial." . . . "Both sides in this case were spectacularly incompetent."
The newspaper article then quotes defense counsel as responding to the judge's comments this way: "I have freed a man from a life sentence, so if you want to say I'm incompetent for doing that, I'll accept that with a smile."
Interestingly, it seems the attorney's conduct did not result in injuries to the client, though. True, he was convicted of a crime he did not commit, but the consequence of the conviction was about a month's stay in prison where the client would have been anyway since he is awaiting trial for a number of other charges. In fact, he is still in custody for this reason.
In terms of malpractice, this is a very odd example of a case where the client could support the most difficult element of the claim, required in most jurisdictions (actual innocence), but can't support the claim because even though he was wrongfully convicted he may not be able to prove an injury.
In terms of discipline, should we impose sanctions for this conduct?
In this new case, the defendant was convicted and sentenced to life in prison for armed robbery. He insisted he was innocent, but could not remember exactly where he was on the day of the robbery. The fact is he had a pretty good alibi, he just did not remember it. He was in prison; a fact that apparently was evident from the information provided to the defendant's lawyer and the prosecutor in the defendant's criminal record.
Defense counsel discovered the evidence of the alibi after the conviction and the court recently dismissed the charges. In doing so, the judge reportedly stated,that "It boggles the mind that neither side knew about this during trial." . . . "Both sides in this case were spectacularly incompetent."
The newspaper article then quotes defense counsel as responding to the judge's comments this way: "I have freed a man from a life sentence, so if you want to say I'm incompetent for doing that, I'll accept that with a smile."
Interestingly, it seems the attorney's conduct did not result in injuries to the client, though. True, he was convicted of a crime he did not commit, but the consequence of the conviction was about a month's stay in prison where the client would have been anyway since he is awaiting trial for a number of other charges. In fact, he is still in custody for this reason.
In terms of malpractice, this is a very odd example of a case where the client could support the most difficult element of the claim, required in most jurisdictions (actual innocence), but can't support the claim because even though he was wrongfully convicted he may not be able to prove an injury.
In terms of discipline, should we impose sanctions for this conduct?
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