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.
Monday, September 5, 2011
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.
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.
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.
What constitutes a "misleading" ad?
As you probably know from having studied the Supreme Court cases on advertising of legal services, the state can, without violating the attorney's first amendment rights, discipline attorneys who engage in advertising that is misleading. Claiming that an advertisement is misleading is, in fact, the easiest way for the state to impose discipline in advertising cases.
But what exactly constitutes a misleading ad? That is not such an easy question to answer. Obviously, you would think it means an ad that gives a wrong impression; but that is subject to so much interpretation that it really does not provide much guidance.
Should an ad in which the lawyer says "I get results!" while pounding on a table be considered misleading because it suggests the lawyer always wins? How about one that says "we make them pay!" or that "I have been getting victims higher cash awards for years" or something like that?
I don't know. And now, a case from Indiana should give lawyers reason to worry about exactly what words they use to describe their practice. Choosing the wrong word can not only make the ad misleading it can be interpreted to be a violation of another rule.
In this case, two attorneys agreed to a stipulated sanction for having published an ad in the phonebook's yellow pages promoting themselves as "Specializing in Bankruptcy Relief."
The objection to the add was based on the fact that "[n]either Respondent has been certified as a specialist by an Independent Certifying Organization accredited by the Indiana Commission for Continuing Legal Education."
How is the statement in the ad misleading?
The problem is that, subject to limited exceptions, rules of professional conduct ban lawyers from stating, or implying, that they are "specialists" in any particular field of law. See for example, Model Rule 7.4(d). And, as in this case, some courts have found that saying that one specializes in a certain type of practice implies that one has been certified as a specialist in that area.
I am sorry but I think that investing time and money on imposing discipline for the statement in this case is just a waste of resources! To specialize is a verb. I looked it up in the dictionary and it says "to concentrate one's efforts in a special activity, field, or practice." You don't have to be certified to practice bankruptcy law and if the attorneys' main area of practice is bankruptcy law they, in fact, specialize in bankruptcy relief. Can't a lawyer advertise that they specialize in a particular area of the law anymore? How about saying "specializing in criminal defense" or "specializing in representing victims of accidents" and so on.
What do you think? Is advertising that says a lawyer specializes in an area of law (assuming the lawyer does practice mostly in that area) misleading? Should it subject the lawyer to discipline?
UPDATE: May 2013: In a recent case from Louisiana a Hearing Committee has recommended a reprimand for an attorney based on the fact that his web page stated that he specializes in maritime personal injury and death cases. See my comment on this new case here.
UPDATE: Oct 2015: In a case called Searcy v Florida Bar, a Federal District Court Judge enjoined the Florida Bar from enforcing a rule prohibiting truthful claims of expertise. The Bar had argued that potential clients would be misled into assuming that lawyers who advertise that they “specialize” or have “expertise” are board certified, but the Court found no evidence to support this argument. Because the rule essentially banned attorneys from making true statements that describe their areas of practice, the judge concluded the rule was unconstitutional under the test used to determine the constitutionality of restrictions on commercial speech under the First Amendment. Accordingly, the court enjoined the bar from prohibiting the plaintiffs from making truthful statements on websites, blogs or social media about their specialty and expertise. Go here for more information.
UPDATE: Sept 2016: Despite the Court's order, the Florida Bar has enacted a proposed amendment to the state's Rules of Professional Conduct and will ask the Florida Supreme Court to approve it. I think the amendment would not pass Constitutional analysis. You can read the proposed new language and get more information here.
But what exactly constitutes a misleading ad? That is not such an easy question to answer. Obviously, you would think it means an ad that gives a wrong impression; but that is subject to so much interpretation that it really does not provide much guidance.
Should an ad in which the lawyer says "I get results!" while pounding on a table be considered misleading because it suggests the lawyer always wins? How about one that says "we make them pay!" or that "I have been getting victims higher cash awards for years" or something like that?
I don't know. And now, a case from Indiana should give lawyers reason to worry about exactly what words they use to describe their practice. Choosing the wrong word can not only make the ad misleading it can be interpreted to be a violation of another rule.
In this case, two attorneys agreed to a stipulated sanction for having published an ad in the phonebook's yellow pages promoting themselves as "Specializing in Bankruptcy Relief."
The objection to the add was based on the fact that "[n]either Respondent has been certified as a specialist by an Independent Certifying Organization accredited by the Indiana Commission for Continuing Legal Education."
How is the statement in the ad misleading?
The problem is that, subject to limited exceptions, rules of professional conduct ban lawyers from stating, or implying, that they are "specialists" in any particular field of law. See for example, Model Rule 7.4(d). And, as in this case, some courts have found that saying that one specializes in a certain type of practice implies that one has been certified as a specialist in that area.
I am sorry but I think that investing time and money on imposing discipline for the statement in this case is just a waste of resources! To specialize is a verb. I looked it up in the dictionary and it says "to concentrate one's efforts in a special activity, field, or practice." You don't have to be certified to practice bankruptcy law and if the attorneys' main area of practice is bankruptcy law they, in fact, specialize in bankruptcy relief. Can't a lawyer advertise that they specialize in a particular area of the law anymore? How about saying "specializing in criminal defense" or "specializing in representing victims of accidents" and so on.
What do you think? Is advertising that says a lawyer specializes in an area of law (assuming the lawyer does practice mostly in that area) misleading? Should it subject the lawyer to discipline?
UPDATE: May 2013: In a recent case from Louisiana a Hearing Committee has recommended a reprimand for an attorney based on the fact that his web page stated that he specializes in maritime personal injury and death cases. See my comment on this new case here.
UPDATE: Oct 2015: In a case called Searcy v Florida Bar, a Federal District Court Judge enjoined the Florida Bar from enforcing a rule prohibiting truthful claims of expertise. The Bar had argued that potential clients would be misled into assuming that lawyers who advertise that they “specialize” or have “expertise” are board certified, but the Court found no evidence to support this argument. Because the rule essentially banned attorneys from making true statements that describe their areas of practice, the judge concluded the rule was unconstitutional under the test used to determine the constitutionality of restrictions on commercial speech under the First Amendment. Accordingly, the court enjoined the bar from prohibiting the plaintiffs from making truthful statements on websites, blogs or social media about their specialty and expertise. Go here for more information.
UPDATE: Sept 2016: Despite the Court's order, the Florida Bar has enacted a proposed amendment to the state's Rules of Professional Conduct and will ask the Florida Supreme Court to approve it. I think the amendment would not pass Constitutional analysis. You can read the proposed new language and get more information here.
Is this one of your favorite blogs?
The ABA Journal has started its annual search for the 100 best legal blogs. You can nominate your favorite blogs by filling out a short form here. I would be honored if you would consider nominating this blog and/or my Torts blog.
I started this blog a few years ago thinking I would use it to keep my students informed of recent news, but I quickly realized a lot more people have been paying attention to it! One of the most rewarding things about blogging is getting unexpected e-mails from time to time from lawyers, judges, professors and other bloggers with comments, suggestions and ideas. Needless to say, I will continue to do my best to bring you news and commentary and hope you continue to enjoy the blog.
I started this blog a few years ago thinking I would use it to keep my students informed of recent news, but I quickly realized a lot more people have been paying attention to it! One of the most rewarding things about blogging is getting unexpected e-mails from time to time from lawyers, judges, professors and other bloggers with comments, suggestions and ideas. Needless to say, I will continue to do my best to bring you news and commentary and hope you continue to enjoy the blog.
Tuesday, August 23, 2011
Legal Zoom settles claim of unathorized practice of law
The class action filed in Missouri claiming that LegalZoom.com, which sells do-it-yourself wills, leases and other documents online, is illegally practicing law in the state of Missouri has settled. The trial had been set to start yesterday but LegalZoom has announced an agreement in principle to settle the lawsuit. LegalZoom says the settlement agreement contains no admission of wrongdoing and lets the company continue offering services to Missouri residents with certain changes.
Go here for my original post on the case where you can find a copy of the complaint and more links.
This is not a new issue. In fact, back in November 2010, the Pennsylvania Bar issued an opinion concluding that many online legal document preparation services, including many of the services provided by LegalZoom, constitute the unauthorized practice of law. The opinion is avaliable here. LegalZoom's response to it is available here.
Sources: The Wall Street Journal law blog, AP
Go here for my original post on the case where you can find a copy of the complaint and more links.
This is not a new issue. In fact, back in November 2010, the Pennsylvania Bar issued an opinion concluding that many online legal document preparation services, including many of the services provided by LegalZoom, constitute the unauthorized practice of law. The opinion is avaliable here. LegalZoom's response to it is available here.
Sources: The Wall Street Journal law blog, AP
Friday, August 19, 2011
Prosecutors respond to Roger Clemens' argument against re-trial
A few weeks ago I reported (here) that the lawyers for Roger Clemens asked the court to prohibit prosecutors from putting the former baseball star on trial again, saying the government engaged in intentional misconduct and should be punished. In response, prosecutors have filed a brief arguing that Clemens is "seeking to gain an unwarranted windfall" from an "inadvertent error." Go here for the full story. Go here for a copy of the brief. The motions will de discussed at a motion hearing scheduled for Sept. 2.
Thursday, August 18, 2011
Prosecutor gets slap on the wrist for violation of duty to disclose information to the defense
The Legal Profession blog is reporting today that the Virginia State bar agreed to accept a prosecutor's agreed disposition (ie, a plea agreement) to get a public reprimand after admitting to having failed to make a timely disclosure to a defendant’s counsel of evidence that could negate the guilt of the accused, mitigate the degree of the offense or reduce the punishment.
To this I say: shame on the Virginia State bar. Given the many recent reports of prosecutorial misconduct around the country, the recent changes to the Model Rules (now adopted in at least 46 states) that impose specific duties on prosecutors and the US Supreme Court's recent decisions related to the misconduct of prosecutors for this exact same conduct, the choice of a reprimand as a sanction is disturbing. It gives the impression the Virginia bar does not really find the conduct was that bad and that it does not care that much prosecutors are violating the rules.
For more on the story go here.
To this I say: shame on the Virginia State bar. Given the many recent reports of prosecutorial misconduct around the country, the recent changes to the Model Rules (now adopted in at least 46 states) that impose specific duties on prosecutors and the US Supreme Court's recent decisions related to the misconduct of prosecutors for this exact same conduct, the choice of a reprimand as a sanction is disturbing. It gives the impression the Virginia bar does not really find the conduct was that bad and that it does not care that much prosecutors are violating the rules.
For more on the story go here.
Monday, August 8, 2011
Supreme Court November oral argument schedule
The Supreme Court has issued its schedule for the first oral arguments of the year and there are three cases related to the "law lawyering" including the two very first ones scheduled:
On Monday, Oct 31 the court will hear arguments in Lafler v. Cooper (10-209) and Missouri v. Frye (10-444). Both cases are about claims of ineffective assistance of counsel based on advice to reject a plea offer and either plead guilty or go to trial.
Also, on what seems to be a trend of cases related to prosecutorial misconduct before the Court in the last couple of terms., on Tuesday, Nov. 8, the Court will hear Smith v. Cain (10-8145) which addresses the impact of a prosecutors’ failure to disclose evidence favorable to the accused’s defense on the verdict in a criminal trial.
As usual, for more details and information on these (and any other Supreme Court case), including links to the briefs, lower court opinions, and other documents, go to the SCOTUS case files page (here).
On Monday, Oct 31 the court will hear arguments in Lafler v. Cooper (10-209) and Missouri v. Frye (10-444). Both cases are about claims of ineffective assistance of counsel based on advice to reject a plea offer and either plead guilty or go to trial.
Also, on what seems to be a trend of cases related to prosecutorial misconduct before the Court in the last couple of terms., on Tuesday, Nov. 8, the Court will hear Smith v. Cain (10-8145) which addresses the impact of a prosecutors’ failure to disclose evidence favorable to the accused’s defense on the verdict in a criminal trial.
As usual, for more details and information on these (and any other Supreme Court case), including links to the briefs, lower court opinions, and other documents, go to the SCOTUS case files page (here).
Thursday, August 4, 2011
Court of Appeals finds no ineffective assistance of counsel even though attorney fell asleep while defendant was under cross-examination -- UPDATED
Yesterday, the U.S. Court of Appeals for the Sixth Circuit denied a habeas petition alleging ineffective assistance of counsel because the defense attorney fell asleep while the defendant was under cross-examination. The case is called Muniz v. Smith (although I suspect it should be Muñiz) and it is available here. The court held that a courtroom nap, by itself, is insufficient to establish ineffective assistance of counsel unless the attorney is asleep for a “substantial portion” of the trial. The case has generated a good debate here.
UPDATE 8/4/11: Lowering the Bar has more on the story here.
UPDATE 8/4/11: Lowering the Bar has more on the story here.
Wednesday, August 3, 2011
Iowa to consider whether sanctions in discipline matters should be kept confidential
The Wall Street Journal law blog is reporting that at the end of this month, the Iowa Supreme Court will consider a proposal that would allow lawyers who face discipline for stealing from clients and neglecting client matters to prevent their sanctions from being disclosed publicly. In exchange for this confidentiality, though, lawyers would have to agree to cooperate in expediting the suspension of their law licenses. Go here for the full story.
I have mixed feelings about this. On the one hand, offering confidentiality will expedite the process and, hopefully, make it more efficient. That is a good thing. But on the other hand, secrecy may eliminate, or at least limit, the goal of deterrence. Also, it limits the amount of information available to the public when searching for representation.
I have mixed feelings about this. On the one hand, offering confidentiality will expedite the process and, hopefully, make it more efficient. That is a good thing. But on the other hand, secrecy may eliminate, or at least limit, the goal of deterrence. Also, it limits the amount of information available to the public when searching for representation.
How not to practice law in Australia
Here is a link to an intereting story in the Australian Professional Liability blog about a firm who sued a former client's wife to get her to pay the client's bills and, after obtaining default judgment against her, set out to, literally, take everything she owned. The wife did not answer the lawsuit because she was unaware the law protected her apparently, and eventually the court ruled in her favor. Go here for the full story, which does not end well for the lawfirm.
Revisions to the rules proposed in California - Updated
The California State Bar Association has submitted to the Supreme Court 67 proposed new Rules of Professional Conduct. California is currently the only state whose professional conduct rules are not adapted from the ABA Model Rules, and the new proposals suggest a reorganization and renumbering to align California rules with the Model Rules. The new rules can not take effect unless they are approved by the Supreme Court. Some of the proposals have been submitted to the court; others will be submitted in the future. The full text of the proposal is available here. (Thanks to the Legal Profession Blog for the update.)
UPDATE 8/3/11: More on the story at the Legal Ethics Forum.
UPDATE 8/3/11: More on the story at the Legal Ethics Forum.
Sunday, July 31, 2011
How not to practice law: show up to court drunk, again
Class Action Claims Online Legal Forms (like "Legal Zoom") Pose Threat To Consumers.
A few days ago, The Wall Street Journal law blog posted (here) that a case I reported about back in February of 2010 (here where you can find a copy of the complaint and more links) is now set for trial on August 22. The case involves a class action filed in Missouri claiming that LegalZoom.com, which sells do-it-yourself wills, leases and other documents online, is illegally practicing law in the state of Missouri.
This is not a new issue. In fact, back in November 2010, the Pennsylvania Bar issued an opinion concluding that many online legal document preparation services, including many of the services provided by LegalZoom, constitute the unauthorized practice of law. The opinion is here. LegalZoom's response is available here.
This is not a new issue. In fact, back in November 2010, the Pennsylvania Bar issued an opinion concluding that many online legal document preparation services, including many of the services provided by LegalZoom, constitute the unauthorized practice of law. The opinion is here. LegalZoom's response is available here.
How not to practice law: use client's money to shop at Walmart and then claim misconduct is due to "poor bookkeeping"
In a recent decision called Grievance Administrator v. Trott (available here), the State of Michigan Disciplinary Board disbarred an attorney for mishandling client's funds. Among other things, the attorney used money from his client's trust account to pay personal expenses at stores and to pay for his utility bills.
It is not unusual for attorneys caught commingling and misappropriating money to claim the misconduct is due to carelessness rather than intent and to claim the problem is in their "poor bookkeeping", which, of course, they promise to improve in the future.
The court in this case, suggested the attorney had the good sense not to make that stupid claim and added that
It is not unusual for attorneys caught commingling and misappropriating money to claim the misconduct is due to carelessness rather than intent and to claim the problem is in their "poor bookkeeping", which, of course, they promise to improve in the future.
The court in this case, suggested the attorney had the good sense not to make that stupid claim and added that
"[a]ttempts to blame misuse of client funds on poor bookkeeping practices seldom make any sense. With respect to the handling of trust funds, "poor bookkeeping" is often actually a refusal to assign priority to the lawyer's role as a fiduciary. The public is asked to trust lawyers with their confidences, their liberty, and their fortunes. The public is also asked to trust lawyers as repositories of funds. The duty to keep client and third party funds safe and separate from lawyer funds is a fundamental one."For more on this case go to the Legal Profession blog here.
Saturday, July 30, 2011
It does not look like there will be changes to Rule 11 after all
Roger Clemens' lawyers ask for dismissal due to prosecutorial misconduct
A few days ago, I posted (here) that the prosecution in the trial against former baseball pitcher Roger Clemens engaged in misconduct by using certain evidence the judge had excluded. Now comes news the Clemens' lawyers have asked the court to prohibit prosecutors from putting the former baseball star on trial again, saying the government engaged in intentional misconduct and should be punished. Go here for the full story.
Tuesday, July 19, 2011
How not to practice law: represent buyer and seller in a transaction, then represent one of them against the other after transaction is done
Here is a link to a decision from New Jersey imposing a light sanction on an attorney who represented the buyer and seller in the transaction without full disclosure and a written waiver of the conflict and who then represented the seller in litigation brought by the buyer. This are two obvious violations of the rules it makes me wonder why the court does not challenge the lawyer's competence. The case is another one of those that can be used to illustrate the difficulty of determining what should be the proper sanction.
One year suspension for attorney who told applicants that having sex with him would be part of the job
About two years ago I reported that the Illinois Adminstrator has filed a disciplinary complaint against an attorney for, among other things, telling an applicant for a poition as secretary in his law firm (in writing) that in addition to general secretarial work she would also be required to have "sexual interaction with me and my partner, sometimes together sometimes separate." Go here for the original story, which includes the full text of the ad and more information.
Now comes news that the Illinois disciplinary board has recommended a one-year suspension for the attorney. You can read the opinion here. You can read more about the story here and here.
One thing that strikes about the decision is how long it took to decide the case -- almost two years since the filing of the complaint in the fall of 2009 - particularly since it is reported that the attorney did not respond to the proceeding at all!
Now comes news that the Illinois disciplinary board has recommended a one-year suspension for the attorney. You can read the opinion here. You can read more about the story here and here.
One thing that strikes about the decision is how long it took to decide the case -- almost two years since the filing of the complaint in the fall of 2009 - particularly since it is reported that the attorney did not respond to the proceeding at all!
Saturday, July 16, 2011
Comment on the report on pro bono by large firms
About two weeks ago I posted a link to a report by the American Lawyer magazine that concluded that major firms contributed significantly fewer hours of pro bono service in 2010 than in the previous two years. See here.
In response to the report and the media commentary that followed, Esther F. Lardent, president and chief executive officer of the Pro Bono Institute, published an op-ed piece in the National Law Journal in which she argues that we should be optimistic that the policy, personnel and attitudinal changes undertaken during the past decade by large firms when it comes to pro bono provide the infrastructure and support that will keep pro bono work strong and vital at these firms. You can read the full article here.
In response to the report and the media commentary that followed, Esther F. Lardent, president and chief executive officer of the Pro Bono Institute, published an op-ed piece in the National Law Journal in which she argues that we should be optimistic that the policy, personnel and attitudinal changes undertaken during the past decade by large firms when it comes to pro bono provide the infrastructure and support that will keep pro bono work strong and vital at these firms. You can read the full article here.
How not to practice law (during the Roger Clemens trial): show the jury the evidence the judge had excluded
Almost a year ago, I posted a story in my on-going "how not to practice law" series on a case in which the Washington Court of Appeals upheld sanctions against a criminal defense counsel for suggesting to the jury what they might have heard if the judge hadn't excluded certain lines of questioning. See here.
Now comes news that the judge presiding over the Roger Clemens trial declared it a mistrial after prosecutors presented evidence the judge had earlier ruled was inadmissible.
For more on the story you can go to the Wall Street Journal law blog, Prof. Jonathan Turley's blog, the blog of the Legal Times and the Legal Ethics Forum.
Now comes news that the judge presiding over the Roger Clemens trial declared it a mistrial after prosecutors presented evidence the judge had earlier ruled was inadmissible.
For more on the story you can go to the Wall Street Journal law blog, Prof. Jonathan Turley's blog, the blog of the Legal Times and the Legal Ethics Forum.
Thursday, July 14, 2011
West Virginia Adopts Actual Innocence Rule For Criminal Clients Who Sue for Malpractice
Here is the most 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. 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.
For more recent news on this issue go here and here.
For more recent news on this issue go here and here.
Attorney suspended for having his wife lend money to client; Court finds loans violated rule against financial assistance to clients
In a recent case callled Toledo Bar Ass'n v. Pheils, the Ohio Supreme Court suspended a lawyer who arranged loans from his wife to a client whom the lawyer was representing in a litigation matter. At the time of the loans, the client was having financial difficulties and wanted to sign a proposed settlement of his lawsuit, but the lawyer wanted to continue negotiating. The lawyer arranged for his wife to lend the client a total of $14,500 and as part of the promissory note for one of the loans, the client agreed to assign his rights in the litigation to the lawyer's wife. The lawyer acted as lawyer for his wife during the negotiations with the client regarding the loans and later he represented his wife in a lawsuit against his former client.
Given these facts, the court concluded that the loans constituted improper financial assistance to the client even though the money came from the lawyer's wife rather than the lawyer himself and that the lawyer had violated the rules regarding conflicts of interest.
As is common in these types of cases, the court found that Even if respondent’s sole intention was to benefit Robinson, that even if the lawyer’s sole intention was to benefit the client, "intention does not excuse his conduct" and that the mere fact that an attorney provides financial assistance to a client is a problem in and of itself because it “gives the attorney too great a financial stake in the litigation.”
Given these facts, the court concluded that the loans constituted improper financial assistance to the client even though the money came from the lawyer's wife rather than the lawyer himself and that the lawyer had violated the rules regarding conflicts of interest.
As is common in these types of cases, the court found that Even if respondent’s sole intention was to benefit Robinson, that even if the lawyer’s sole intention was to benefit the client, "intention does not excuse his conduct" and that the mere fact that an attorney provides financial assistance to a client is a problem in and of itself because it “gives the attorney too great a financial stake in the litigation.”
Podcast on Lawyer Advertising and Marketing Online
Here is a link to a radio program on lawyer advertising and marketing online.
Sunday, July 10, 2011
How should an ethical prosecutor deal with a high-publicity rape case?
A recent editorial in the National Law Journal asks "How should an ethical prosecutor deal with a high-publicity rape case?" (see here) My answer is simple: the same way he or she should handle a no publicity one and according to what is expected by the rules of professional conduct. Why should there be any difference?
Court reverses conviction because prosecutor read privileged communication between defendant and his lawyer
In a recent case, Connecticut Supreme Court considered "whether a prosecutor’s intrusion into communications between a defendant and his attorney that are subject to the attorney-client privilege requires the dismissal of the criminal charges against the defendant." Finding that the prosecutor came into possession of and read certain written materials belonging to the defendant that were subject to the attorney-client privilege, the court reversed the conviction - which was obtained after the lower court had denied a motion to dismiss the charges based on the prosecutor's conduct. Interestingly, the court held that the conviction should be reversed regardless of whether the prosecutor's conduct was intentional. The opinion was not unanimous. You can read the opinion here. You can read the dissenting opinion here.
Thanks to the legal profession blog for the information.
Thanks to the legal profession blog for the information.
How not to practice law: don't care about the details
The Legal Profession blog is reporting (here) that the California State Bar Court Review Department has suspended an attorney who allowed his office assistant to sign his name to pleadings from July 2005 to February 2007. The attorney denied misconduct but offered this explanation of the practice: "[i]t's just easier for me to do that. I don't like details. I leave the details to her." The opinion is available here.
Friday, July 1, 2011
Big firms make profits, pro bono plunges
The Wall Street Journal law blog is reporting on a study by the American Lawyer magazine in its just-released July pro-bono issue that concludes that many lawyers were too busy representing paying clients to counsel non-paying ones. Go here for the story in the WSJ, go here for the story by American Lawyer magazine.
Illinois amends lawyer trust account guidelines
The Supreme Court of Illinois has announced amendments to existing lawyer trust account guidelines. The new amendments to Rule 1.15 of the Illinois Rules of Professional Conduct help clarify the obligations that all lawyers have to manage and protect client funds. Go here for more on the story. Go here to view the new rule changes.
Recap of the Supreme Court cases on lawyering issues
The Legal Ethics Forum has a short summary of the eight lawyering cases decided by the US Supreme Court this past term here (and it also includes a summary of the lawyering cases already on the docket for next term).
Saturday, June 25, 2011
Chemerinsky on access to the judicial system in the US
Constitutional law scholar and UC Irvine School of Law Dean, Erwin Chemerinsky has published an op-ed piece in which he argues that the U.S. Supreme Court's conservative majority is aggressively closing the courthouse doors even when it requires a tortured reading of federal statutes to do so. You can read the article here.
Wednesday, June 22, 2011
Comments on Turner v Rogers -- UPDATED
Here is a list of links to articles or comments on the Supreme Court's decision in Turner v Rogers (thanks to the SCOTUS blog for the list):
SCOTUS blog
Washington Post
New York Times
Courthouse News Service
JURIST
The Boston Globe
Concurring Opinions
Constitutional Law Prof Blog
UPDATE 6/22: Here are a few more links
The Atlantic
Concurring Opinions
ACSblog
SCOTUS blog
Washington Post
New York Times
Courthouse News Service
JURIST
The Boston Globe
Concurring Opinions
Constitutional Law Prof Blog
UPDATE 6/22: Here are a few more links
The Atlantic
Concurring Opinions
ACSblog
Class action alleges public defender caseloads result in violation of right to counsel
The ABA Journal.com is reporting today that three inmates have filed a class action suit against two cities in Washington state, contending that excessive public defender caseloads in municipal court have deprived them and other defendants of their constitutional right to counsel. Go here for the story in the Seattle Times.
Tuesday, June 21, 2011
Supreme Court decides Turner v Rogers
Back in March the Supreme Court heard oral arguments on a case called Turner v. Rogers (formerly titled Turner v. Price) which asked the court to decide whether an indigent client has a right to an attorney for civil contempt proceeding that could lead to jail time. I posted a number of links to comments on the oral argument the day after it was heard here.
Yesterday, the Court announced its decision holding (on a 5 to 4 vote) that the Fourteenth Amendment’s Due Process Clause does not automatically require the state to provide counsel at civil contempt proceedings to an indigent noncustodial parent who is subject to a child support order, even if that individual faces incarceration. In this case, however, the petitioner’s incarceration violated due process because he received neither counsel nor the benefit of alternative procedural safeguards that would reduce the risk of an erroneous deprivation of liberty. The opinion, as well as the lower court's opinion and the briefs and other relevant documents in the case are available here.
Here is a comment on the case at the Legal Ethics Forum (with links to two others here and here). The Wall Street Journal law blog has the story here.
I will continue to update this post with links to comments on the case as I see new ones.
Yesterday, the Court announced its decision holding (on a 5 to 4 vote) that the Fourteenth Amendment’s Due Process Clause does not automatically require the state to provide counsel at civil contempt proceedings to an indigent noncustodial parent who is subject to a child support order, even if that individual faces incarceration. In this case, however, the petitioner’s incarceration violated due process because he received neither counsel nor the benefit of alternative procedural safeguards that would reduce the risk of an erroneous deprivation of liberty. The opinion, as well as the lower court's opinion and the briefs and other relevant documents in the case are available here.
Here is a comment on the case at the Legal Ethics Forum (with links to two others here and here). The Wall Street Journal law blog has the story here.
I will continue to update this post with links to comments on the case as I see new ones.
How not to practice law (as a judge): order defendants to go to church
Here is an interesting little story about a Mississippi judge who has been reprimanded for ordering defendants to attend church as a condition of bail. You can read the reprimand here. More on the story here. Thanks to the First Amendment Center blog for the link.
Podcast on right to counsel
Changes to Federal Rule 11 on sanctions for frivolous lawsuits, again?
The Blog of the Legal Times is reporting today that the U.S. House Judiciary Committee is getting ready to vote on legislation that would restore the system of mandatory sanctions on lawyers who file frivolous lawsuits. The text of the proposal is available here. It would make sanctions mandatory once a judge has found a lawsuit to be frivolous under Rule 11 of the rules of civil procedure, and it would remove a 21-day “safe harbor” under which lawyers can now withdraw a lawsuit to avoid threatened sanctions. As expected, "the proposal has drawn enthusiastic support from business groups who say it would eliminate wasteful litigation, while opponents say it would lead to costly side battles that will consume judges’ time." Wasn't the approach supported by the bill tried and eventually rejected?
Thursday, June 16, 2011
NYC bar issues opinion on litigation lending industry -- UPDATED
Back in November of last year and then again in January of this year, I reported on a series of articles on the entities that lend money to litigants in exchange for an assignment of an amount of the potential proceeds of the litigants' legal action. Then, later that month, I reported that the Illinois legislature rejected a proposal to regulate litigation financing companies.
Now, the New York City Bar has issued a opinion on ethical issues raised by the use of litigation lending services. The opinion is available here. The New York Law Journal has an article on it here. Finally, the ABA Journal has a short summary here.
The Wall Street Journal law blog has more on the story here.
Now, the New York City Bar has issued a opinion on ethical issues raised by the use of litigation lending services. The opinion is available here. The New York Law Journal has an article on it here. Finally, the ABA Journal has a short summary here.
The Wall Street Journal law blog has more on the story here.
Ohio State Univ football scandal includes possible discipline for disclosure of confidential information
The Legal Profession blog is reporting that Ohio Supreme Court's Office of Disciplinary Counsel has filed a complaint accusing a lawyer of violating his duty of confidentiality by sending three e-mails to former Ohio State Univerisity football coach Jim Tressel. In the emails, the lawyer told Tressel that certain players had been given free tattoos in exchange for signed memorabilia. This conduct, in case you don't know, violates NCAA rules. The reason sending the messages is arguably a violation of the rules is that the lawyer, learned of the situation when the owner of the tattoo parlor came to him for legal advice about a federal-drug investigation against him. Go here for more details.
Disbarment recommended for one of the "kings of torts"
Back in March I reported (here) on the possible disbarment of attorney Stanley Chesley, a very successful plaintiffs' lawyer who some consider to be the father of the modern-day mass tort. I actually worked with Chesley a long time ago, when I was starting out, in a mass disaster fire case and it really bothers me to see his career -- during which he helped many people -- go down in flames like this.
The Wall Street Journal blog is reporting (here) that the Kentucky Bar Association board of governors voted to disbar him for allegedly taking more than his share – $7 million, to be exact – in fees from a 2001 diet drug settlement. The Lexington Herald-Leader has more details here.
The Wall Street Journal blog is reporting (here) that the Kentucky Bar Association board of governors voted to disbar him for allegedly taking more than his share – $7 million, to be exact – in fees from a 2001 diet drug settlement. The Lexington Herald-Leader has more details here.
Monday, June 13, 2011
New case on prosecutorial misconduct before the Supreme Court
After the Supreme Court granted review in Connick v Thompson just after it was prevented from deciding Pottawattamie County, Iowa v. Harrington because it settled, I speculated that the Court was looking for a case to criticize what seemed to be widespread prosecutorial misconduct. Once it decided Connick by essentially avoiding commenting on the notion of prosecutorial misconduct directly, however, I was forced to admit I had been wrong.
This is why I am now dazed and confused by the news that the Court has decided to grant review to a new case of prosecutorial misconduct out of New Orleans.
Reporting for the SCotUS blog, Lyle Denniston writes that "[j]ust weeks after the Supreme Court divided deeply over the tactics of prosecutors in New Orleans, the Justices on Monday decided to take another look, adding a new case claiming repeated violations of those prosecutors’ duty to share information that would help defense lawyers. Public defender lawyers, in the new case, aimed strong complaints at the District Attorney’s office in Orleans Parish, contending that it has “a well-documented history of hiding…from defense counsel” evidence of potential aid to the defense." Go here to read the full report. The case will be decided next term.
In Connick, the Court held that a local government decision not to train employees about their duties under Brady v. Maryland may rise to an actionable policy, but the failure to train must reflect a deliberate indifference to the rights of persons. So, the question now is whether this new case presents enough evidence to support a "deliberate indifference"? Have the justices now seen the light and are ready to reverse their view of the conduct of the DA's office?
I am not going to speculate this time...
For lots of information and links to comments on Connick, go to my sections on Supreme Court or Prosecutors and scroll down.
This is why I am now dazed and confused by the news that the Court has decided to grant review to a new case of prosecutorial misconduct out of New Orleans.
Reporting for the SCotUS blog, Lyle Denniston writes that "[j]ust weeks after the Supreme Court divided deeply over the tactics of prosecutors in New Orleans, the Justices on Monday decided to take another look, adding a new case claiming repeated violations of those prosecutors’ duty to share information that would help defense lawyers. Public defender lawyers, in the new case, aimed strong complaints at the District Attorney’s office in Orleans Parish, contending that it has “a well-documented history of hiding…from defense counsel” evidence of potential aid to the defense." Go here to read the full report. The case will be decided next term.
In Connick, the Court held that a local government decision not to train employees about their duties under Brady v. Maryland may rise to an actionable policy, but the failure to train must reflect a deliberate indifference to the rights of persons. So, the question now is whether this new case presents enough evidence to support a "deliberate indifference"? Have the justices now seen the light and are ready to reverse their view of the conduct of the DA's office?
I am not going to speculate this time...
For lots of information and links to comments on Connick, go to my sections on Supreme Court or Prosecutors and scroll down.
Sunday, June 12, 2011
Judge reprimanded for trying to force lawyer to recite the pledge of allegiance
Back in December I reported a story (here) about a judge who sent a lawyer to jail for contempt when a lawyer refused to recite the pledge of allegiance in open court after being ordered to do so by the judge. The Wall Street Journal is reporting that the Mississippi Supreme Court has voted unanimously to discipline the judge. The court concluded the judge abused his power. Go here for the full story.
Tuesday, June 7, 2011
Podcast on the ethics of structured settlements
Monday, June 6, 2011
UPDATE: Michigan adopts a 30 day waiting period rule
Last month I reported that Michigan adopted a new rule imposing a waiting period on certain types of communications sent to victims of accidents. See here. Here is a bit more information on the new rule.
As you probably know, the U.S. Supreme Court confirmed a state's authority to impose a temporary ban on attorneys' direct-mail solicitations to accident victims in Florida Bar v. Went For It Inc., 515 U.S. 618 (1995). Following that decision, a number of jurisdictions have enacted a waiting period for attorney solicitation after accidents. Last month, Michigan became the most recent state to do so.
The (5 to 4) decision in Went for it is controversial. Personally, I do not find it convicing at all. It simply does not follow the applicable precedent and doctrine. Also, while claiming that the challenged rule was needed to advance the right to privacy of the victims, the rule did not prevent defendant's lawyers from invading that privacy. It only applied to plaintiffs' lawyers.
This problem has been addressed by some of the jurisdictions that have adopted waiting period rules since then, but not by all. The newly adopted rule in Michigan was approved on a 4 to 3 vote by the Michigan Supreme Court. The text of the new rule, which can be found here is not entirely clear on this point.
In one of the dissenting opinions, Justice Markman argues that the rule places small firms at an increasing economic disadvantage to the large law firm in terms of client solicitation.
As you probably know, the U.S. Supreme Court confirmed a state's authority to impose a temporary ban on attorneys' direct-mail solicitations to accident victims in Florida Bar v. Went For It Inc., 515 U.S. 618 (1995). Following that decision, a number of jurisdictions have enacted a waiting period for attorney solicitation after accidents. Last month, Michigan became the most recent state to do so.
The (5 to 4) decision in Went for it is controversial. Personally, I do not find it convicing at all. It simply does not follow the applicable precedent and doctrine. Also, while claiming that the challenged rule was needed to advance the right to privacy of the victims, the rule did not prevent defendant's lawyers from invading that privacy. It only applied to plaintiffs' lawyers.
This problem has been addressed by some of the jurisdictions that have adopted waiting period rules since then, but not by all. The newly adopted rule in Michigan was approved on a 4 to 3 vote by the Michigan Supreme Court. The text of the new rule, which can be found here is not entirely clear on this point.
In one of the dissenting opinions, Justice Markman argues that the rule places small firms at an increasing economic disadvantage to the large law firm in terms of client solicitation.
Saturday, May 28, 2011
Technical problems with the blog
For the second time in just a few weeks, I have been experiencing serious technical problems with the system that hosts my blogs (ie, "Blogger"). I have enjoyed using Blogger and I like many of its features but I am becoming increasingly frustrated with the problems I am experiencing. The last time I had problems, Blogger was updating some features and the problems resolved themselves after a few days. I am hoping this is the case again. Otherwise, I may not be able to post new information for a few days and I may soon be looking to move the blogs to a new system or stop blogging altogether. If you have any comments or suggestions please send them to me by email.
Friday, May 20, 2011
UPDATE: The next big thing: whether to allow non-lawyers to own shares of law firms
A few months ago, I thought that "the next big thing" in legal ethics was going to be a debate over whether to allow the use of screening to avoid concurrent conflicts of interest in some cases. I may be wrong. It is starting to look like the next big thing is going to be a debate about whether nonlawyers should be allow to own equity stakes in law firms.
One reason this has not been allowed up to now is to avoid the possibility that non-lawyers - essentially "investors" in the firm - or the need for investors might compromise the lawyers' independent professional judgment.
This concern is not trivial in my opinion. But, as the Wall Street Journal reports today (here and here), pressure is building in the business to let law firms raise capital from nonlaywers. Yesterday, plaintiffs’ firm Jacoby & Meyers filed suits in New York, New Jersey and Connecticut claiming that their state rules barring outsiders from owning stakes in firms unconstitutionally restricts interstate commerce. For more on the story, go to the Legal Ethics Forum (here)
If successful, this case could lead to the most significant change in which law is practiced in the United States in many years.
The Commission in charge of reviewing and revising the ABA Model Rules just announced it will hold a meeting to discuss this issue during the upcoming annual meeting of the Center for Professional Responsilbity in Memphis, June 1-4. For information (and to register) for the annual meeting, go here.
UPDATE (5/20): Blogger Eric Turkewitz has a comment on the idea of allowing non-lawyers to acquire shares in law firms here and here (hint: he is against it).
One reason this has not been allowed up to now is to avoid the possibility that non-lawyers - essentially "investors" in the firm - or the need for investors might compromise the lawyers' independent professional judgment.
This concern is not trivial in my opinion. But, as the Wall Street Journal reports today (here and here), pressure is building in the business to let law firms raise capital from nonlaywers. Yesterday, plaintiffs’ firm Jacoby & Meyers filed suits in New York, New Jersey and Connecticut claiming that their state rules barring outsiders from owning stakes in firms unconstitutionally restricts interstate commerce. For more on the story, go to the Legal Ethics Forum (here)
If successful, this case could lead to the most significant change in which law is practiced in the United States in many years.
The Commission in charge of reviewing and revising the ABA Model Rules just announced it will hold a meeting to discuss this issue during the upcoming annual meeting of the Center for Professional Responsilbity in Memphis, June 1-4. For information (and to register) for the annual meeting, go here.
UPDATE (5/20): Blogger Eric Turkewitz has a comment on the idea of allowing non-lawyers to acquire shares in law firms here and here (hint: he is against it).
Thursday, May 19, 2011
IL lawyer in trouble for deception in the process of investigating compliance with the law
An Illinois Assistant Attorney General is the subject of an interesting ethical charge after allegedly using a "ruse” to gain evidence against a condominium project for lack of handicapped access. He is accused of entering the premises under the false pretense that he was looking for a condo for his grandmother. More on the story here. The complaint is available here.
This is an example of an old question: whether it is ethical to engage in some level of deception in order to confirm whether someone else is discriminating.
Assuming all the facts are true, the lawyer in question was, in fact, dishonest. But he was dishonest "with good intentions" or for a good reason -- in order to find whether the other party was violating the law.
In part, the solution to the problem might be simply to let others do the investigating or, as in this case, the "testing." Attorneys should stay out of it and wait until the information is gathered to intervene in the prosecution. On the other hand, an attorney can't ask someone to do something the attorney can't do himself, so I am not sure where that leaves the attorney who needs to engage in some level of deception to gather the information.
Any thoughts?
This is an example of an old question: whether it is ethical to engage in some level of deception in order to confirm whether someone else is discriminating.
Assuming all the facts are true, the lawyer in question was, in fact, dishonest. But he was dishonest "with good intentions" or for a good reason -- in order to find whether the other party was violating the law.
In part, the solution to the problem might be simply to let others do the investigating or, as in this case, the "testing." Attorneys should stay out of it and wait until the information is gathered to intervene in the prosecution. On the other hand, an attorney can't ask someone to do something the attorney can't do himself, so I am not sure where that leaves the attorney who needs to engage in some level of deception to gather the information.
Any thoughts?
Michigan adopts waiting period rule
The Michigan Supreme Court has adopted a new version of Rule 7.3 that prohibits solicitation of accident victims within 30 days of the accident or injury. The rule will implement regulation that is permissible in light of the Supreme Court's decision in Florida Bar v. Went For It. The decision was not unanimous, though. There are dissents. For more on the story and a good quote from one of the dissenting opinions, go here.
Florida Bar v. Went for It is a terrible decision. It is illogical and inconsistent with prior precedent. It therefore set a bad precedent and it is not encouraging to see states following it. But it is what it is. It is still the law of the land.
I have not seen the new Michigan rule so I can't comment on it. The one thing I do hope is that it, at least, applies to both plaintiffs and defendants' lawyers. This was one of the main problems with the rule in question in Went for it. Because of its wording, it only applied to plaintiffs' lawyers leaving victims vulnerable to personal visits by defendants' lawyers. The rule simply did not advance the state interest in protecting the victims from intrusion. This was a fatal flaw in the rule that the Court chose to ignore. I hope the Michigan Court has not ignored this point.
Florida Bar v. Went for It is a terrible decision. It is illogical and inconsistent with prior precedent. It therefore set a bad precedent and it is not encouraging to see states following it. But it is what it is. It is still the law of the land.
I have not seen the new Michigan rule so I can't comment on it. The one thing I do hope is that it, at least, applies to both plaintiffs and defendants' lawyers. This was one of the main problems with the rule in question in Went for it. Because of its wording, it only applied to plaintiffs' lawyers leaving victims vulnerable to personal visits by defendants' lawyers. The rule simply did not advance the state interest in protecting the victims from intrusion. This was a fatal flaw in the rule that the Court chose to ignore. I hope the Michigan Court has not ignored this point.
Wednesday, May 18, 2011
Michigan Attorney Discipline Board finds flat fees are not earned upon agreement
Here is yet another comment on the character of flat fees. I have commented on this issue several times before, most recently here.
In this case (available here), the attorney and client agreed to a flat fee. The attorney began to work on the matter but failed to follow through on it. He then claimed that the fee had been earned on receipt. The Board disagreed and stated that "Respondent's primary argument is that "there can be no unused [or unearned] portion of a 'flat fee' " This is simply erroneous as a matter of law. It would be absurd for the law to provide, as respondent argues, that " [t]he total fee was due (earned) the moment the attorney began any work on the file." This would enable an attorney to begin an agreed upon representation, abandon it, and retain the entire fee as if the whole of the work had been completed. For obvious reasons, this has never been the law..."
This is the logical result for the circumstances of the case. Otherwise, as the Board correctly points out, attorneys would be free to disregard the client's matters and collect the fees anyway.
Thanks to the Legal Profession blog for the information and link.
In this case (available here), the attorney and client agreed to a flat fee. The attorney began to work on the matter but failed to follow through on it. He then claimed that the fee had been earned on receipt. The Board disagreed and stated that "Respondent's primary argument is that "there can be no unused [or unearned] portion of a 'flat fee' " This is simply erroneous as a matter of law. It would be absurd for the law to provide, as respondent argues, that " [t]he total fee was due (earned) the moment the attorney began any work on the file." This would enable an attorney to begin an agreed upon representation, abandon it, and retain the entire fee as if the whole of the work had been completed. For obvious reasons, this has never been the law..."
This is the logical result for the circumstances of the case. Otherwise, as the Board correctly points out, attorneys would be free to disregard the client's matters and collect the fees anyway.
Thanks to the Legal Profession blog for the information and link.
Lawyer’s License Revoked After Panel Finds He Hid Funds During His Divorce
Here is a good reminder of the fact that a lawyer's conduct outside the practice of law can result in professional discipline. In this case, a lawyer’s license was revoked because he attempted to hide assest during his divorce. Go here for the full story.
Interestingly, the attorney for the disciplined lawyer is quoted as saying that "the discipline is unusual because the facts related to the revocation are from a personal divorce, not mishandling a client's case. This had nothing to do with his performance as a lawyer."
Although he is correct in stating that the sanctions are not related to the lawyer's performance as a lawyer, he is wrong is claiming this is unusual. It is pretty well known that a lawyer can be disciplined for conduct outside the practice of law, as long as the conduct in question relates to the lawyer's character or ability to practice law. The conduct in this instance brings into question the lawyer's honesty, integrity and respect for the legal process. Obviously, these are pretty relevant factors to consider when deciding whether a lawyer's conduct calls for discipline.
There may be an argument as to the severity of the sanction imposed, but that is a different matter. I see no problem with the fact that a sanction was imposed.
Interestingly, the attorney for the disciplined lawyer is quoted as saying that "the discipline is unusual because the facts related to the revocation are from a personal divorce, not mishandling a client's case. This had nothing to do with his performance as a lawyer."
Although he is correct in stating that the sanctions are not related to the lawyer's performance as a lawyer, he is wrong is claiming this is unusual. It is pretty well known that a lawyer can be disciplined for conduct outside the practice of law, as long as the conduct in question relates to the lawyer's character or ability to practice law. The conduct in this instance brings into question the lawyer's honesty, integrity and respect for the legal process. Obviously, these are pretty relevant factors to consider when deciding whether a lawyer's conduct calls for discipline.
There may be an argument as to the severity of the sanction imposed, but that is a different matter. I see no problem with the fact that a sanction was imposed.
UPDATE on the story "Bloggers get sued for expressing their opinion on conduct of another attorney"
In an interesting bit of news, a lawyer whose conduct was ctiricized by the press and bloggers over the internet has sued 74 defendants including several bloggers whose blogs I follow regularly.
At the risk of getting added to the lawsuit, I will repeat part of the story here. The story apparently started with an article in the Washington Post that stated that a Superior Court judge in Washington DC declared a mistrial in a murder case in which the judge thought the attorney exhibited "numerous signs that he [the attorney] lacked knowledge of proper trial procedure" and that went on to say that the judge told the attorney "during a hearing . . . that he was “astonished” at his performance and at his “not having a good grasp of legal procedures”". Here is a link to a comment by one of the jurors in the case. (Thanks to Simple Justice for the link.)
Following this story, a number of bloggers commented on the lawyer's conduct. The news today is that the attorney has fired back by suing them for defamation. Two of those bloggers have commented on the situation here and here. This second comment, in the blog "Simple Justice", is really worth a look. It opines that "[t]he substance of the action is not merely frivolous, but the action was brought in New York Supreme Court, and had [the plaintiff's] lawyer done some homework, he would [have] learn[ed] that New York's long arm statute expressly excludes defamation." Simple Justice then identifies the plaintiff's attorney and quotes his ads on CraigsList and in the Pennysaver, which is pretty interesting.
UPDATE (May 18): Eric Turkewitz, one of the bloggers sued, has posted an great response (with links to more information) to the lawsuit here. It is very much worth reading.
Go here for a list of posts on the case.
At the risk of getting added to the lawsuit, I will repeat part of the story here. The story apparently started with an article in the Washington Post that stated that a Superior Court judge in Washington DC declared a mistrial in a murder case in which the judge thought the attorney exhibited "numerous signs that he [the attorney] lacked knowledge of proper trial procedure" and that went on to say that the judge told the attorney "during a hearing . . . that he was “astonished” at his performance and at his “not having a good grasp of legal procedures”". Here is a link to a comment by one of the jurors in the case. (Thanks to Simple Justice for the link.)
Following this story, a number of bloggers commented on the lawyer's conduct. The news today is that the attorney has fired back by suing them for defamation. Two of those bloggers have commented on the situation here and here. This second comment, in the blog "Simple Justice", is really worth a look. It opines that "[t]he substance of the action is not merely frivolous, but the action was brought in New York Supreme Court, and had [the plaintiff's] lawyer done some homework, he would [have] learn[ed] that New York's long arm statute expressly excludes defamation." Simple Justice then identifies the plaintiff's attorney and quotes his ads on CraigsList and in the Pennysaver, which is pretty interesting.
UPDATE (May 18): Eric Turkewitz, one of the bloggers sued, has posted an great response (with links to more information) to the lawsuit here. It is very much worth reading.
Go here for a list of posts on the case.
Tuesday, May 17, 2011
Lawyering can be dangerous
Here is an interesting headline from today's news: "Man Who Stabbed His Lawyer With a Pencil Stabs His New Lawyer With a Pencil." Go here for the full story.
Monday, May 16, 2011
More thoughts on the inconsistency of sanctions- UPDATED
I have often commented on inconsistencies regarding sanctions among jurisdictions and sometimes within jurisdictions. Most recently, I mentioned (here) a recent decision by an Illinois Hearing Board that discussed the conduct of an attorney engaged in what the Board called "extremely serious" ethics violations which the Board also found were aggravated by a series of important 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. Yet, having described the conduct as "extremely serious" and having found aggravating factors, the Board imposed a mere one year suspension. One would think that misconduct described as that serious would have resulted in a higher level of discipline.
I am glad to see now that I am not alone in my frustration with this issue.
Here is another case, courtesy of the Legal Profession blog. In this one, a New Jersey attorney was suspended for abandoning a client in a family law matter and defaulting in the ensuing proceeding before the Bar. Although the Disciplinary Review Board found that the attorney had shown "nothing but disrespect - indeed, insolence - in his dealing with the disciplinary system", the Board said the conduct would merit merely a three month suspension. To this, Mike Frisch, of the Legal Profession blog, replies, "[i]f abandoning a client and ignoring a bar complaint normally merits a three-month suspension, New Jersey needs a new normal."
And, today, over at the Legal Ethics Forum, Prof. Stephen Gillers expresses his frustration with the problem stating,
UPDATE (5/16): Mike Frisch, of the Legal Profession blog, replies to Giller's last comment by stating that "[w]hat is really needed to protect (or at least forewarn) the public is ready and easily available online access to complete information about bar sanctions. Not summmaries, but the actual opinions, informal admonitions, hearing reports, review board reports, court decisions--the full package. . . . Unfortunately, the reality is that many jurisdictions make this kind of information either difficult or impossible to find. Until that situation is rectified, bar discipline will be as much about the parochial, self-interested concerns of the Bar rather than (as every opinion on the subject claims) the protection of the public."
I am glad to see now that I am not alone in my frustration with this issue.
Here is another case, courtesy of the Legal Profession blog. In this one, a New Jersey attorney was suspended for abandoning a client in a family law matter and defaulting in the ensuing proceeding before the Bar. Although the Disciplinary Review Board found that the attorney had shown "nothing but disrespect - indeed, insolence - in his dealing with the disciplinary system", the Board said the conduct would merit merely a three month suspension. To this, Mike Frisch, of the Legal Profession blog, replies, "[i]f abandoning a client and ignoring a bar complaint normally merits a three-month suspension, New Jersey needs a new normal."
And, today, over at the Legal Ethics Forum, Prof. Stephen Gillers expresses his frustration with the problem stating,
"In reviewing several years worth of disciplinary opinions from courts around the nation in connection with a writing project, I was struck again by a disturbing pattern. . . .
The courts' opinions first tell a really awful story about professional or personal misconduct, sometimes sordid or tawdry, sometimes thieving, sometimes duplicitous. The opinions lay it all out and as readers we are led to expect a proportionate sanction.
But then comes that frequent phrase "an unblemished record," a phrase one rarely sees elsewhere in life or law, sometimes accompanied by "no prior discipline" (which more often than not may mean the lawyer has not heretofore been caught), and perhaps a citation to character testimony.Go here to see comments posted in the Legal Ethics Forum in response to this comment.
And although the reader had been led to expect disbarment or a long suspension for the bad behavior so abundantly detailed . . . he or she finds instead the most modest of sanctions -- a public reprimand or a suspension the length of a nice vacation.
I sometimes wonder if we should just forget the sanctions and instead require the lawyer to give the court's opinion to all present and prospective clients. It might better protect the public."
UPDATE (5/16): Mike Frisch, of the Legal Profession blog, replies to Giller's last comment by stating that "[w]hat is really needed to protect (or at least forewarn) the public is ready and easily available online access to complete information about bar sanctions. Not summmaries, but the actual opinions, informal admonitions, hearing reports, review board reports, court decisions--the full package. . . . Unfortunately, the reality is that many jurisdictions make this kind of information either difficult or impossible to find. Until that situation is rectified, bar discipline will be as much about the parochial, self-interested concerns of the Bar rather than (as every opinion on the subject claims) the protection of the public."
Friday, May 13, 2011
Conviction reversed because of judge's comments
Prof. Jonathan Turley is reporting today on a case out of Oklahoma where a murder conviction was overturned due to the comments at trial by the Judge. The appeals court found the judge's comments to be “a misstatement of the law that was an inherently coercive intrusion into the jury’s deliberative process.” Interestingly, this is not the first controversy for the judge who was previously asked to step down in a criminal trial after allegedly using an offensive term to describe illegal immigrants. Go here for the full story.
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.
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.
Thanks to the Legal Ethics forum for the link.
Tuesday, May 10, 2011
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."
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."
Monday, May 9, 2011
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.
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.)
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.)
Saturday, May 7, 2011
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.
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.
Tuesday, May 3, 2011
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.
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.
Monday, May 2, 2011
Short deposition transcript
Short deposition in a divorce case.... WARNING: vulgarity and foul language ahead. Go here for the transcript.
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