SBM Blog

Now Showing At A Law School Near You: The Discipline Show

The State Bar of Michigan is pleased that its Professionalism in Action program, which brings distinguished lawyers from the community into law schools to talk to 1Ls about ethical problems in practice, has been embraced by all of Michigan's law schools. Here's an equally great idea: bring Michigan disciplinary proceedings into the law schools to show what the consequences can be when disciplinary rules aren't followed. That's exactly what happened last week at the Ann Arbor campus of Cooley Law School. Appearing before the school's students, the nine members of Michigan's Attorney Discipline Board heard appeals and found four attorneys guilty of professional misconduct.  Board members and the lawyers for the disciplined attorneys took questions from the students.

HT: Washtenaw County Legal News

Virginia Senate Rejects Judicial Nomination of Openly Gay Prosecutor

To become a judge in Virginia, you must be nominated and approved by the state legislature. On Tuesday, the Virginia Senate defeated the nomination of Tracy Thorne-Begland, a county prosecutor who is a former navy pilot, a father, and openly gay.  According to a story in the Richmond Times-Dispatch, his nomination had been approved by the courts committees in the House and Senate, but last week the Family Foundation voiced concerns that the Thorne-Begland would allow his sexual orientation to influence his judicial decisions. Virginia's Republican Governor, Bob McDonnell, issued a statement that judicial candidates “must be considered based solely on their merit, record, aptitude and skill.”

Roger Clemens and Attorney-Client Privilege

The New York Times reports on an interesting attorney-client privilege ruling in the perjury trial of Roger Clemens:

Prosecutors in the Roger Clemens perjury trial started their week on a down note Monday when the judge presiding over the case ruled against their request to play a clip of Clemens’s 2008 interview with “60 Minutes” that the government had hoped would bolster its case.

That clip showed Clemens saying that his lawyers had advised him not to talk to George J. Mitchell for Mitchell’s investigation of performance-enhancing drug use in baseball. Prosecutors said those comments contradicted what Clemens told Congress in 2008 when he testified that he had “no idea” Mitchell wanted to speak to him.

Clemens is charged with perjury, making false statements and obstructing Congress when he testified to a House committee that he never used steroids or human growth hormone, substances now banned by Major League Baseball. Included in the obstruction count is the allegation that Clemens lied when he said he did not know Mitchell wanted to talk to him.

The judge, Reggie Walton, said showing the clip could violate attorney-client privilege.

Huh?

Lawyer Peril Du Jour: Phony Law Firm Websites

As if the legal profession didn't have enough to worry about, what with digital discovery, commoditization, immunity creep, law school debt, incivility, boundaryless practice, and online self-help, just to name a few, now there's law firm identity theft. 

England, as usual, is leading the way.

From the Solicitors Regulation Authority:

There are serious and continuing risks to the public arising from the activities of criminals and criminal gangs who are setting up bogus law firms or bogus branch offices of genuine law firms with the intention, usually, of stealing mortgage loans. This warning notice provides information about the threat and advice about how to protect yourself and others from it.

HT: Slaw

Michigan's Judicial Selection Process and the Problem of Perception

The problem with saying out loud that Michigan's system of electing our Supreme Court justices undermines public confidence in the Court is that people might conclude that we don't just have a perception problem, we have an actual problem -- that because their campaigns are funded by private contribution justices are de facto corrupt. The problem is neatly illustrated in Brian Dickerson's column this weekend in the Free Press, "The case of money v. justice in Supreme Court," in which he says:

State Supreme Court Justice Marilyn Kelly and U.S. Court of Appeals Judge James Ryan are two of the most experienced jurists in Michigan. They tend to diverge on political matters -- she's a liberal Democrat, he's a conservative Republican -- but between them is more than 25 years of service on our state's highest court.

So when Kelly and Ryan stand up at a press conference to tell you that court has been bought and paid for by special interests, it should get your attention.

They didn't come right out and say that, of course, because both are extremely courteous people, and they do not want to suggest that justices with whom they have appeared in countless official photographs have the same ethical standards as, say, Kwame Kilpatrick.

Fact is, the distinguished and very knowledgeable co-chairs of the Judicial Selection Task Force not only didn't say that the Court has been bought and paid for by special interests, they, and the Report (PDF) issued by the Task Force last month, were scrupulous about not saying that because that's not what the members of the Task Force believe.

I know. I was there. (I served as a member of the Task Force. The State Bar itself has not yet considered or taken a position on the Report's package of recommendations.)

Here's part of what the Task Force Report had to say:

As a result of undisclosed spending, citizens and litigants alike lack a sound basis for confidence in the impartiality of their highest court. Michigan voters already believe that campaign spending has infected the decision-making of their judiciary; 63% believe that judicial campaign contributions have a lot or some influence on the decisions judges make. Perhaps this explains the overwhelming support nationwide for full-disclosure laws among both Democrats (86% in favor) and Republicans (88% in favor). In Michigan, 96% of voters believe it is very or somewhat important to require public disclosure of all sources of spending for judicial elections.

The Task Force worried a great deal about the danger of others bootstrapping the Task Force identification of the perception problem into a conclusion of actual corruption. But the Task Force concluded that the actual problem of public perception is real and urgent, that there are sensible, practical remedies, and that the time to act is now, before the problem becomes worse. To conclude that we shouldn't do anything about the perception problem because there is no proof of corruption is kinda like saying that Iago wasn't really a problem in Othello's marriage because Desdemona was actually faithful. And we all know how that worked out.

Art: Eugène Delacroix, Othello and Desdemona, c. 1847-1849, National Gallery of Canada

New York's Law Day Gift To the Public: Mandatory Pro Bono

Starting next year, new lawyers will have to perform 50 hours of pro bono work in order to get a license to practice In New York. The chief judge of the state's highest court, Jonathan Lippman, announced the new requirement yesterday, saying that it is intended to provide about a half-million hours of legal services to people with urgent problems, like foreclosure and domestic violence, who cannot afford to pay. Here's the speech, from the New York Law Journal. The rules have yet to be drafted and it is not clear at this point whether the requirement will apply to already licensed lawyers from other states applying for New York licensure. Justice Lippman believes the new requirement would not be onerous, and could be a source of satisfaction to most lawyers. His staff noted that the requirement could be met in a weeklong summer internship.

Michigan's pro bono rule, like all other jurisdictions except New York's, is voluntary. The State Bar's Pro Bono Standard, which gives lawyers guidance about annual pro bono expectations, is three cases or 30 hours of free legal help for low-income persons, or a $300 donation to a nonprofit legal aid program; lawyers with the ability to contribute more than $300 are encouraged to donate $500 or more. Michigan's lawyers give generously of their time and money, but the need is far greater than their generosity. In 2009 more than a third of those who qualified for legal aid in Michigan were turned away due to lack of resources; of those served, almost half did not receive the level of legal assistance needed to resolve their cases. The New York situation appears even more dire. The New York Legal Aid Society reports that it must turn away eight out of every nine people who seek services.

The New York Times story is here. For an opposing view on mandatory pro bono, see this piece from Esther Lardent of the Pro Bono Institute. And Carolyn Elefant has weighed in with a passionate protest that, among other things, the rule is an undue burden on solo practitioners.

 

Special Master Finds Misconduct By Inkster Judge Sylvia James

The special master appointed by the Michigan Supreme Court in the Judicial Tenure Commission (FTC) case against Judge Sylvia James has issued a report upholding several of the charges brought by the JTC. Its conclusion:

The Master concludes that the Examiner has proven by a preponderance of the evidence: Count I A, B, and C, Count II A and C, Count III C, and Count IV 1. Respondent failed to diligently discharge her administrative responsibilities. She ignored the advice of trained financial professionals that all the Court‟s financial practices should comply with generally accepted accounting principles (GAAP). She failed to establish policies requiring documentation of expenditures of all public moneys. Despite being told that her actions were improper, she continued to authorize donations from the CSP account to charitable, civic, fraternal and religious organizations. She failed to ensure that her magistrate was qualified for that position and she rehired her niece in disregard of the clearly applicable anti-nepotism policy. Her actions demonstrated her lack of respect for the law.

Download the full report here. The Free Press has a story. Judge James has been suspended with pay pending the resolution of Judicial Tenure Commission charges against her.

ABA's Ethics 20/20 Commission Throws Up Its Hands Over Nonattorney Ownership of Law Firms

From the Commission's press release on Monday:

At its April 12-13 meeting in Washington, D.C., the ABA Commission on Ethics 20/20 decided not to propose changes to ABA policy prohibiting nonlawyer ownership of law firms.

Co-Chairs Jamie S. Gorelick and Michael Traynor said, “Since its creation in 2009, the commission has undertaken a careful study of alternative law practice structures. Based on the commission’s extensive outreach, research, consultation, and the response of the profession, there does not appear to be a sufficient basis for recommending a change to ABA policy on nonlawyer ownership of law firms.”

High-Profile Arizona Disbarments End in Raucous Rally

Marathon disciplinary proceedings against former Maricopa County prosecutor Andrew Thomas and two of his deputies in what may well be the highest profile attorney discipline case ever ended this week in the disbarment of Thomas and one of the deputies, and the suspension of the other. Thomas, a political ally of controversial Maricopa County sheriff Joe Arpaio was charged with a total of 33 ethical violations including conflicts of interest; filing criminal and civil cases to embarrass or burden rivals or filing without probable cause or sufficient evidence; criminal conduct; and conduct involving dishonesty and fraud. The case was so politically fraught that the Arizona Supreme Court appointed independent bar counsel from outside the state -- John Gleason, regulation attorney for the Colorado's Office of Attorney Regulation -- to prosecute the charges after the first appointed bar counsel withdrew. Thomas defended his actions as anti-corruption activity.

In the wake of the decision, a bizarre gathering of supporters and detractors took place. The Republic described the scene:

At times, the spectacle lapsed into theater: An obviously impaired young man walked between Thomas and TV cameras, smiling and waving. To one side, a man in a Mexican Lucha Libre wrestler's mask who was holding a sign shouted at Thomas while an elderly Thomas supporter in a cowboy hat tried to push him away by driving his motorized wheelchair into him.

Thomas was noncommittal when asked if he planned to appeal the decision of the Arizona Supreme Court disciplinary panel that ordered him disbarred. And when he compared his travails to those of greater men like Gandhi, Martin Luther King Jr. and the Catholic martyr Sir Thomas More, the crowd erupted in jeers.

"Someone has to fight for justice," he said. "I've stated my case. I did my job. The loser is the people of Arizona."

Here's the opinion (PDF). Fair warning -- it's 247-pages long.

Ethics Charges Filed Against Wisconsin Supreme Court Justice

If you thought that the charge that in the course of heated deliberations over the state's collective bargaining law Wisconsin Supreme Court Justice David Prosser assaulted a fellow Justice ended when a special prosecutor found no criminal wrong-doing, think again. Bloomberg News reports that on Saturday a special prosecutor appointed by the State Judicial Commission filed a request with the Wisconsin Supreme Court for sanctions against Prosser, after finding probable cause to believe he willfully violated the judicial ethics code requirement to be “patient, dignified and courteous” to those involved in the court system; cooperate with [other judges] and maintain high standards of conduct to ensure the integrity of the judiciary.  The special prosecutor also sent a letter to the chief of the appellate court asking that a three-judge panel be appointed to hear the case. Wisconsin law also provides for a jury to hear allegations.