Friday, September 30, 2011

Is there such a thing as a potential conflict of interest?

Today we started to discuss conflicts of interest in my class. As we tried to define the concept I asked the students if it makes sense to talk about "potential conflicts" and tried to get them to understand that having a conflict is, in and of itself, a violation of a duty to the client.

Interestingly, over at the Legal Ethics Forum, four law professors recently exchanged views on this.  NYU's Stephen Gillers started it off by using an example from journalism ethics saying that "if there is an appearance of a conflict there is an actual conflict. If the reporter succumbs to the conflict by favoring the clients of the speakers bureau, that's not a conflict. It's a breach of trust." Also, Hofstra's Monroe Freedman commented on the shameful way courts approach conflicts in criminal cases Read the rest of the conversation here.

Indiana Supreme Court on the reasonableness of a contingency fee

A few days ago, I spent some time discussing contingency fees with my students.  Among other things, we talked about whether the reasonableness of a contingency fee should be evaluated based on the terms of the agreement, the circumstances at the time the agreement is reached, the end result (the amount recovered) or a combination of all of them.

Just a day too late for our discussion, but almost right on cue, the Legal Profession blog is reporting today on a new case in which the Indiana Supreme Court imposed a suspension of at least 120 day for "misconduct by collecting a clearly unreasonable and exploitive [contingecny] fee."

In this case, a client approached a recently admitted attorney [which is relevant since the rules list the lawyer's experience as one of the factors used to evaluate the reasonableness of a fee] asking for help to get access to money that was in a trust.  The lawyer agreed to help based on a contingency agreement.  Another lawyer who had been serving as the trustee of the trust agreed to resign as trustee, and the new lawyer took over.  After the transition, the new lawyer paid himself one-third of the funds held in trust, nearly $15,000. The client got nearly $30,000, which presumably was quickly spent.

The trust had been created to protect the client and "to prevent rapid depletion by [the client's abusive, substance abusing boyfriend]."

In support of the view that a contingency fee should be evaluated based on the circumstances at the time of the agreement, the court emphasized that a contingent fee is not unreasonable "every time a case turns out easier or more lucrative than contemplated by the parties at the outset."

However, the court added that a fee that is not unreasonable at the outset may become unreasonable in light of later developments:

...Respondent may have reasonably believed at the outset that removing Ross as trustee would be contested (despite documentation indicating Ross was willing to step aside in favor of a qualified successor). He may have even reasonably questioned the amount of money in the trust upon which his fee would be calculated and collected (despite documentation that $42,500 had been deposited in it just a few months earlier). But within two or three days, Ross agreed to resign as trustee in favor of Respondent, and Respondent had assumed control over the trust, knew the balance in the trust account, had gained access to those funds, and had cut himself a check for his fee. At this point, he knew the case did not involve any complex issues, prolonged time commitment, risk of no recovery, or even any opposition.
The case is called In the Matter of Powell and it is available here.

Thursday, September 29, 2011

Analysis of ABA's new formal ethics opinion 461

Go here for an analyisis of the ABA's new opinion 11-461, "Advising Clients Regarding Direct Contacts with Represented Persons."

Thanks to the Legal Ethics Forum for the link.

IL amends rules on CLE

The Illinois Supreme Court has amended some of the rules regarding Continuing Legal Education for Illinois attorneys.  Go here for more information.

Tuesday, September 27, 2011

Cash for kids judge sentenced

On Friday, Pennsylvania judge Michael Conahan was sentenced to 17.5 years in prison for his role in the cash-for-kids scandal. Conahan and judge Mark Ciavarella Jr. were accused in 2009 of sending teenagers to privately run youth detention centers in exchange for kickbacks from the builder of the detention facilities.  Ciavarella, was sentenced in August to 28 years in prison.  For more, go here.

Supreme Court grants review of case on attorney immunity

The Supreme Court announced this morning that it will review a case on "whether a lawyer retained to work with government employees in conducting an internal affairs investigation is precluded from asserting qualified immunity solely because of his status as a “private” lawyer rather than a government employee." The case is called Filarsky v. Delia.

In this case, the District Court found the attorney was protected by qualified immunity, but the Court of Appeals for the Ninth Circuit reversed.  The opinion of the Court of Appeals is available here.  For all the documents filed before the Supreme Court go here.

For more on some surprising announcements by the Supreme Court today - on a different subject, go here.

Monday, September 26, 2011

Pro bono conversation questions of the week

The national pro bono celebration conversation continues this week with the following questions:

Some lawyers prefer to give money rather than their time and skill, and some legal services/pro bono organizations would also prefer this arrangement. Others favor both a monetary and personal commitment to pro bono work/legal services. How do you see this issue? What suggestions do you have?

Go here to join the conversation.

Recent disciplinary decisions in Illinois

The Illinois Supreme Court has announced 70 new disciplinary orders. The Court disbarred 12 lawyers, suspended 43, censured 10, remprimanded two and transferred three others to inactive disability status.

The disbarment orders were for misappropriation (5), charging unreasonable fees (3), failing to return unearned fees or retainers (3), unathorized practice of law in a different state (2), convictions for fraud/tax evasion (2) and dishonesty (1).  The numbers add to more than 12 because some of the attorneys engaged in more than one of these examples of misconduct.

Go to Illinois Laywer Now (here) for details on all the cases.

Oregon finds that convicted defendant can bring malpractice claim against lawyers for mishandling post conviction appeal

As I have discussed previously (more recently here, here and here), a majority of jurisdictions hold that a convicted criminal defendant does not have a right to sue his or her trial attorney for legal malpractice unless the plaintiff can show he or she was innocent of the crime.

In a slightly different type of case, the Oregon Supreme Court recently ruled, however, that a convicted criminal defense client need not obtain exoneration of the underlying offense before suing his or her lawyers. The case is called Drollinger v. Mallon, and it is available here. The case is slightly different because the plaintiff's allegation was that the lawyer was negligent in handling a post-conviction appeal. The court found that exoneration is not required in the post-conviction malpractice setting because the policies underlying the exoneration requirement in an action involving alleged trial malpractice do not apply to an action in which a client's failure to obtain post-conviction relief is the heart of the case.

ABA Committee on Professional Responsibility issues new formal opinion

The ABA Standing Committee on Professional Responsibility has issued a new Formal Opinion (No. 11-461 August 4, 2011) in which it discusses whether an attorney violates the "no contact rule" by helping a client communicate directly with another party that is represented by counsel.

The bottom line is essentially this:  A lawyer may not communicate with a person the lawyer knows is represented by counsel unless that person’s counsel has consented to the communication or the communication is authorized by law or court order, and a lawyer may not use an intermediary to communicate directly with a represented person in violation of the “no contact” rule.  On the other hand, it sometimes is desirable for parties to a litigation or transactional matter to communicate directly with each other even though they are represented by counsel.  For this reason, since parties to a legal matter have the right to communicate directly with each other, a lawyer may advise a client of that right and may assist the client regarding the substance of any proposed communication. Such assistance may not, however, result in overreaching by the lawyer.

The full text of the opinion is available at the ABA's Center for Professional Responsibility website here or here.

Friday, September 23, 2011

How not to practice law: write incomprehensible complaints and briefs; Court suggests disbarment for lawyer's inability to write

A panel of the 7th Circuit Court of Appeals recently ordered an attorney to show cause why he should not be disbarred (from the federal court) after finding that the lawyer repeatedly filed "unintelligible" court papers that were "riddled with errors" and full of gibberish, including a 345-word sentence.

The lawyer had been given three opportunities to correct the brief in the case but “[e]ach iteration of the complaint was generally incomprehensible and riddled with errors, making it impossible for the defendants to know what wrongs they were accused of committing.”

For more on the story go here, here and here.  For a copy of the court's opinion go here.

On the possible liability of a lawyer for negligence in handling a settlement ... in Australia

I have commented on the issue of whether a lawyer can be found liable for negligence in a case if the client decides to settle here, here and here.  Interestingly, this is now under debate in Australia.  Here is a link to a short comment by the Australian Professional Liability Blog on the issue.  It provides a survey of the relevant cases and the state of the law down under.

South Carolina continues to struggle with the notion of conflicts of interest

I have argued before that the South Carolina Supreme Court does not understand basic principles of conflicts of interest (see here) and a recent decision involving a lawyer who had "romantic feelings for a client" prompts me to repeat my conclusion.

In this new case (In re Poff, S.C., available here), the court held that having what the court referred to as romantic feelings for the client doesn't create a conflict of interest that rises to the level of an ethics rule violation.  The court concluded that the lawyer's unrevealed romantic interest in the client, "in the absence of any evidence of its effect on his representation, does not, in our view, represent a conflict that rises to the level of a Rule violation."

In other words, the court finds that there is no conflict of interests unless the client is harmed by the conflict of interest.  This view is wrong - in general and as it applies to the facts of the case itself.

As I have stated elsewhere, the court's position shows its misunderstanding of the concept of a conflict of interest in the first place. For a court to find a conflict of interest it is not required that there be a certain "effect" or "harm" to the representation. The rules regarding conflicts of interest are there precisely to prevent a harm from happening.  A conflict exists if a lawyer from finding himself or herself in a situation where there is a significant risk that the representation of a client might be threatened by the lawyer's interest in, or duty to, someone or something else.  The significant risk is what is important.  If there is a significant risk that the lawyer might break a rule there's a conflict. Whether the lawyer breaks the rule is irrelevant.

Thus it is incorrect to think that there is a conflict only if the conflict causes harm to the representation.  On the contrary, it is the risk to the representation what determines that there is a conflict of interest.

The lawyer in this case had a conflict.  The conflict existed because his feelings for the client created a significant risk that the representation could be affected.  Period.  For example, there was a risk that the lawyer would disclose confidential information about the client to others when talking to them about his feelings toward her.... which, not surprisingly, is what actually happened in the case, and which brings me to my next point.  It is incredible that the court would say the representation was not affected since the court found the attorney violated his duty of confidentiality to the client!  

What is the proper level of discipline for this?

Suppose a lawyer is practicing law in a state where he or she is not admitted.  Regardless of whether, at least of paper, that state can impose discipline the lawyer, what the state really wants to do is inform the state where the lawyer is admitted and ask that state to take action.  What level of discipline should the state where the lawyer is admitted apply to a lawyer who was caught practicing law without a license in a different state?

A new case from New York provides some light on the subject.  In this case, a lawyer licensed to practice in New York was “disbarred” by the highest court in Maryland for several acts of misconduct, including the unauthorized practice of law. See, Maryland Attorney Grievance Comm'n v. Sucklal, 12 A.3d 650 (Md. 2011).  Since the lawyer was never admitted in Maryland, "disbarment" in that context means permanent exclusion from eligibility for law practice in Maryland.

Back in New York, however, the attorney was only suspended for one year (with the possibility of reinstatement after only six months).  The case is called In re Sucklal.

This situation poses and interesting question about the concept of reciprocal discipline.  I think states should have the flexibility to decide their own disciplinary matters and that there may be reasons why a state may not want to impose exactly the same sanction imposed by another state.  But I wonder what is the standard sanction in New York for the unauthorized practice of law.  If it is a one year suspension, I understand the decision of the court.  But if New York disbars attorneys who practice law illegally in New York, why not disbar a New York attorney who practices illegally somewhere else?

Thursday, September 22, 2011

ABA Commission has released new proposals for amendments to the ABA Model Rules

The ABA Commission on Ethics 20/20 has released for comment revised proposals for amendments to the ABA Model Rules of Professional Conduct with regard to Outsourcing, Technology and Confidentiality, and Technology and Client Development. In addition the Commission has released updated versions of its proposals concerning foreign lawyers and the ABA Model Rule on Pro Hac Vice Admission, the ABA Model Rule for Registration of In-House Counsel, and ABA Model Rule 5.5.

Comments are due by November 30, 2011. Please check the Commission's website (here), for continued updates regarding proposals, discussion drafts, Commission meetings, and public hearings.

You may view the cover memo from Commission Co-Chairs Jamie S. Gorelick and Michael Traynor and the proposals from these links:

Cover Memo


Technology and Confidentiality

Technology and Client Development

ABA Model Rule on Pro Hac Vice Admission

ABA Model Rule for Registration of In-House Counsel

ABA Model Rule 5.5

For a comment on the proposal regarding outsourcing go to the Legal Research and Writing Pro blog

Monday, September 19, 2011

Pro bono conversation questions of the week

The national pro bono celebration conversation continues this week with the following questions:

What methods have you found most effective in engaging law students in pro bono?  What type of legal work have you found is most appropriate for law students?  What suggestions do you have for law schools that would result in the graduation of students committed to access for all?

Go here to join the conversation.

Friday, September 16, 2011

Pro bono conversation continues

Following up on the invitation to engage in a conversation about pro bono work during the next few weeks, here are a couple of items:

1.. In a recent speech, retired Supreme Court Justice John Paul Stevens said that for lawyers, "the greatest reward is not monetary," as he urged attorneys to take on clients in need of help on a pro bono basis.  Go here for the full story.

2. Some jurisdictions are considering imposing mandatory pro bono, something that has been considered several times in the past by the drafters of the ABA Model Rules also. In response, Esther F. Lardent, the president and chief executive officer of the Pro Bono Institute, argues that even though "[t]he U.S. legal system is facing a crisis of unparalleled proportions" and that "[t]he legal aid crisis and the courts crisis have morphed into a justice-system crisis" mandatory pro bono is not a good idea. She argues that there are other things all segments of the profession "can and should do to ease the crisis and restore the public's faith in our justice system before resorting to mandatory pro bono."

I tend to agree.  Mandatory pro bono is not necessarily a good idea.  Forcing people to do work they don't want to do usually does not yield good results.  For those who don't want to do the work, I would rather urge them to contribute financially to organizations who do want to do the work and can use the resources.  If we do institute mandatory pro bono, this financial contribution option should be an alternative to meet the requirement.

In her short article, available here, Lardent names seven other things that can be done.  Let me comment on a couple.

She suggests that ABA Model Rule 6.1 should be revised stating that "As one of the co-authors of the ABA's model rule on pro bono adopted in the early 1990s, I can candidly state that it is seriously out of date. Given the scope of the crisis we are facing, the rule's overly broad definition of pro bono — which currently includes discounted fees and bar association service — cannot and should not stand. Pro bono should mean free legal work done on behalf of low-income or disadvantaged clients, period."  I agree that there can be a better way to define pro bono and also that lawyers should be encouraged to do more than simply offer  "discounted fees" for clients who can pay regular fees and who have easy access to legal representation.  I do think, however, as I said before, that contributing financially to legal aid or other organizations created for the purpose of providing legal aid to those who wouldn't otherwise have access to legal representation should be considered a valid way to meet pro bono obligations.

Lardent also suggests that states should make pro bono reporting meaningful. I couldn't agree more.  Some years ago, Illinois adopted a mandatory reporting system.  Lawyers are not required to provide pro bono services but if they do provide it, they have to report it.  When I ask my students how this would work to encourage more people to do pro bono work, they usually say that other lawyers would be "shamed into" doing it when they saw how many other people were doing it, or when they saw other "competing" firms using their pro bono commitment as a marketing tool, and so on.  This is true, and not necessarily a bad thing, but it only works if the reporting results in publicity. Only if the results of the reporting are publicized, and celebrated, will the information have a positive effect on others.   I will post a separate comment on this at some point in the future.

Wednesday, September 14, 2011

Commission on Legal Ethics 20/20 presentation at the ABA annual meeting

The ABA Commission 20/20 is working on new amendments to the Model Rules of Professional Responsibility.  Here is a video of a presentation to the ABA at the recent annual meeting discussing the work of the Commission. It provides a very good summary of the work of the Commission so far.

Monday, September 12, 2011

Pro bono conversation question of the week

Here are this week's national pro bono celebration questions: What are the best ways for the public interest and private bars to work together to provide high quality legal services to poor and marginalized people? How can we increase collaboration between all segments of the legal community?  What innovative, creative models already do or would result in increased legal services for low income individuals and communities?  Are there new ways of thinking about the delivery of legal services that would result in meeting more need?

Go here to join the conversation.

Sunday, September 11, 2011

National Pro Bono Celebration

Building on the success of the annual National Pro Bono Celebrations in 2009 and 2010, the ABA Standing Committee on Pro Bono and Public Service is sponsoring the Celebration again this year October 23 through 29, 2011.  Go here for more information.

The Celebration is a coordinated national effort to meet the ever-growing needs of this country's most vulnerable citizens by encouraging and supporting local efforts to expand the delivery of pro bono legal services, and by showcasing the great difference that pro bono lawyers make to the nation, its system of justice, its communities and, most of all, to the clients they serve.

As part of the Celebration, the Committee is encouraging a national conversation about pro bono.  How can we frame a new way of thinking about and delivering pro bono legal services?

Please contribute to a stimulating national conversation about the future of pro bono work and the delivery of quality legal services. Help shape this approach by sharing your inspired ideas and comments. What has worked for you? What are your best ideas and experiences? What changes are needed and how might they be accomplished? What are the most effective collaborations and partnerships? How can the private and public interest bars work together most effectively to provide access to justice for all?

Twice weekly, on Mondays and Wednesdays, a new question will be posted for your reflection and comments. Please participate often and invite your colleagues to do the same.  You can see the list of questions here.

A national conversation can seed new initiatives and new approaches throughout the country; please join in this dynamic exchange of insights and ideas. Your voice needs to be heard. Join the discussion now.

Thursday, September 8, 2011

Former White House Aide suspended for one year only over definition of "moral turpitude" -- UPDATED

In March of 2010, I reported the story that appears below. The case was appealed and the Court of Appeals just announced its decision affirming the decision.  If you remember the original story, go to the bottom for the more recent update.

March 12, 2010:

The Blog of the Legal Times is reporting today that the D.C. Board on Professional Responsibility has recommended to the D.C. Court of Appeals that former White House aide Claude Allen, who pleaded guilty in 2006 to one misdemeanor count of theft of property, be suspended from the practice of law for one year.

Allen, who at one point was nominated by President Bush to the U.S. Court of Appeals for the Fourth Circuit, admitted that, on several occasions, he bought an item at a Target store and then later went back to the store with the receipt, pulled an identical item off the shelves, and used the receipt to “return” it, allowing him to keep the purchased item at no cost.

On these facts, the Board recommended a suspension because, according to its report, bar counsel "failed to prove moral turpitude." Had bar counsel proven moral turpitude, the lawyer would have been disbarred. According to the report, the Board stated that "Allen’s actions were “deceptive and dishonest”" but not enough to show moral turpitude.

I am sorry, I must be missing something.... Let's review,... so the guy goes to the store, lies, cheats and STEALS... repeatedly.... for kicks and giggles.... (I am guessing a White House aide, federal appeals court nominee does not really need a few things from Target that badly!).... and that is not moral turpitude?!?

I guess I have to review what 'moral turpitude' means....

Ok, so let's see... According to the BLT, the Board's report states that “Dishonesty is an important factor in analyzing whether criminal conduct rises to the level of moral turpitude, but not every criminal act of dishonesty involves moral turpitude . . . The key factor, the report says, is “dishonesty for personal gain.""

Hmm... Let me see if I get this.... go to Target, ...lie, ....cheat, ....steal, .... keep money..... "dishonesty for personal gain"?....... Yeah, sorry, ... still don't get it...

How is the conduct here not "dishonesty for personal gain"? Can someone explain this to me?

The guy is a convicted liar and a thief and you are telling me that his conduct is not evidence of dishonesty for personal gain!?

Is the Board saying that it is not so bad because the guy stole "only" about $800 or so.... So stealing is not so bad as long as it is not that much? Is that what you are telling me? Is that a lesson you'd like me to teach my 5 year old?

I think I have made my point. I hope the court disregards the recommendation and does the right thing here. This guy should be disbarred. Period. If he needs psychiatric help, get him help, do whatever, but don't allow him to represent people whose property, lives and money depend on him until he shows he can be trusted. Shame on the Board.

More on the story here.  You can find the Board's report through this link.

UPDATE:  September 8, 2011

More than a year since the decision of the DC Board on Professional Responsibility, the DC Court of Appeals has affirmed the decision and imposed a one year suspension.  On appeal, Bar Counsel had requested that the Court reject the Board's conclusion and order disbarment.  As I argued back when the Board's decision was issued, I agree with Bar Counsel.

But the Court did not agree, holding that a misdemeanor should never be considered, per se, a crime involving moral turpitude - even if it could be considered to be a "serious crime."  But that was not the end of the question.  Finding that the conduct did not involve moral turpitude per se, the court had to evaluate the specific facts of the case to determine if, under the circumstances, the conduct should be considered to have involved moral turpitude.  The court concluded that it did not.

Bar counsel argued that the conduct involved moral turpitude because it was intentional dishonesty for personal gain.  The court saw it slightly differently concluding that, although "it is clear that respondent committed an intentional act of dishonesty, . . . and because respondent kept the stolen items, he actually personally gained from the commission of the theft," the lawyer's actions "were not so much motivated by a desire for personal gain as by psychological disturbances."

I understand the court's reasoning, but I remain unconvinced, particularly when the Hearing Committee who heard the original evidence did not give credit to the testimony of the attorney's doctor whose opinion and diagnosis was described as imprecise and "changing" -- which I take to be a nice way of saying it was unconvincing to say the least.

Judge for yourself and let me know what you think....  The case is called In re Claude A. Allen and the opinion of the court is available here.

For more on the story go to the Blog of the Legal Times and the Legal Profession Blog.

Discipline for conduct outside the practice of law: conduct as a juror

The rules of conduct clearly state that making false statements to a tribunal constitutes misconduct.  Typically, we think of this as applying to attorneys who participate in a judicial process as an attorney, (ie when representing a client).  But a new case by the Supreme Court of Minnesota reminds us that this principle is broader than that. In this case, the attorney was called to serve as a juror.  During the voir dire process he lied about his past and, for this reason, the Supreme Court imposed a 60 suspension.  The case is called In re Petition for Disciplinary Action against Benjamin Adam Warpeh and it is available here.

Note that this is also an example of discipline for conduct outside the practice of law.

Just goes to show you that, as the old saying goes, "honesty is the best policy."

Thanks to the The Legal Profession Blog for the link.

Tuesday, September 6, 2011

Groupon for lawyer services

As you know, ABA Model Rule 5.4 prevents a lawyer from sharing fees with non-lawyers other than in some limited cases.  This is also true in most, if not all jurisdictions. Do lawyers violate this rule if they try to attract clients by sharing a percentage of the fee with the service that provides the means for the lawyers to communicate with the possible clients?

This is the business model of the daily coupon system now known as "Groupon" which offers customers discounted deals for future services.

Given the slow economy, many lawyers are looking for ways to attract new clients so it was inevitable that someone would think of using groupon to do so thus raising the question regarding fee-sharing.

At least two states have now published ethics opinions on the issue and both found that using groupon as an advertising method would not violate the rules that ban sharing fees with a non-lawyer. The North Carolina State Bar so concluded in its Formal Ethics Opinion 10: Lawyer Advertising on Deal of the Day or Group Coupon Website (July 14, 2011) (available here) and the South Carolina Bar did so in its Ethics Advisory Opinion 11-05 (available here).  The Virtual Law Practice blog comments on them here.

Given that Groupon takes 50% each time a customer buys the coupon, a lawyer who gets clients' fees through a Groupon deal is, in fact, sharing the fee with Groupon. But I guess I understand the reasoning behind the opinions. The fear behind the ban on sharing fees with non-lawyers is that the non-lawyers could exercise influence over the lawyers thus threatening the lawyers' duty to exercise independent professional judgment. That is not likely to be a problem with Groupon.

Having said that, the fact that it is not unethical to use Groupon to attract clients, does not mean it is a good idea, according to solo practitioner and popular blogger Carolyn Elephant who says that "Groupon’s potential fee-splitting issues that the bar decisions resolve are the least of its problems for lawyers. In my opinion, the ethics decisions are a no-brainer: regulators have no choice but to lighten up on performance-based online advertising (like Google Ads) where participants pay only for results. If not, small firms won’t be able to compete online with large shops which will always have the resources to pay out of pocket for ads and directory listings. So I never got too excited about Groupon’s ethical implications. Instead, I wouldn’t recommend Groupon because the business model simply DOES NOT WORK!"  Read her full comment here.

Monday, September 5, 2011

Should the financial effects of defending against a disciplinary procedure on the accused attorney be taken into account when deciding the appropriate sanction?

Here is a link to a comment on a recent decision in Australia discussing this question. The court's decision is available here.  If I understand the Australian case correctly, apparently the disciplinary authorities can impose fines on attorneys as a form of discipline.  In this particular case, the Tribunal found that the fine would be "at the lower end of the range" because the attorney was also ordered to cover the state's costs.

I have mixed feelings about this.  I understand that adding the amount the attorney would have to pay in costs and fines might result in a significant expense, but I think the punishment should fit the crime, as the saying goes. If the conduct is particularly bad, the punishment should be harsh.  At least in theory, this is the more effective way to achieve deterrence.

Thoughts on discipline

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.

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.

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.

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.