SBM Blog

Suing Legal Malpractice Lawyers For Legal Malpractice

National Law Journal's story "Suit Alleges Law Firm Botched Legal Malpractice Action," describes an  interesting Massachusetts case.  From the complaint (PDF):

This case arises out of claims for legal malpractice and other wrongdoing by a prominent Boston law firm and two of its attorneys. These attorneys did not act alone, however, and instead were part of a substantial conspiracy designed to manage and contain the clients (the two Plaintiffs in this suit) who simply wanted a trusted legal advisor to look further into claims of legal malpractice committed by other attorneys. Ultimately, and in furtherance of that conspiracy, these attorneys (the Defendants in this suit) performed a sham investigation of its clients [sic] putative malpractice claims and finally fell on their sword in an act of “damage control” by misleading the clients, delaying the filing of certain claims until the running of the statute of limitations, and ultimately refusing to file claims for those clients on the eve of the expiration of the statutes of limitations on those claims. In short, the Defendants left their clients to fend for themselves and to lose claims they would still have had the Defendants timely filed.

 

Governor Appoints Kathy HoogstraTo Muskegon Circuit Court

Governor Snyder has appointed Kathy Hoogstra, Muskegon Probate Register/Court Administrator since 2007, to the vacancy created by the retirement of Judge John C. Ruck. She is a 1989 graduate of IIT Chicago-Kent College of Law.

How Law Firm For Detroit Restructuring Was Selected

AmLaw Daily has a detailed story about how Jones Day was selected (barely) over thirteen competitors --  including Michigan-based law firms Miller Canfield, Dykema Gossett, Lewis Munday, Butzel Long, Plunkett Cooney, and Jaffe Raitt -- to handle Detroit's restructuring. From the story:

Fourteen firms responded with proposals that Miller Buckfire rated in such categories as each firm's ties to Detroit and Michigan; its experience with large debtor-side bankruptcies, Chapter 9 municipal bankruptcies, and public finance work; and the potential for conflicts to arise if it took on the assignment. Guided by that matrix, and without conducting additional interviews, the city selected Jones Day on March 8, just two days after the deadline for submitting bids had passed. The firm, which received 21 out of 24 possible points on the Miller Buckfire matrix, signed a $3.35 million contract with the city on March 20 that runs at least through the end of September.

Attorney Discipline Board Picks A New Executive Director

The Attorney Discipline Board has selected deputy executive director Mark Armitage to succeed the agency's longtime executive director, John Van Bolt, when he retires at the end of September.

Mr. Armitage is a graduate of Albion College and the University of Detroit Mercy School of Law. Prior to joining the Board's staff in 1994, he clerked for the Michigan Court of Appeals, was in private practice, was a volunteer hearing panelist and served on the State Bar's Standing Committee on Grievance. He is a fellow of the Michigan and American Bar Foundations and has taught professional responsibility at Wayne State Law School, the University of Detroit Mercy School of Law, and at Thomas M. Cooley Law School. 

A former president of the National Organization of Bar Counsel (NOBC), Mr. Armitage has regularly lectured on legal ethics and professional responsibility at seminars sponsored by the State Bar of Michigan, the Institute for Continuing Legal Education (lCLE) and at national conferences conducted by the NOBC and the National Council of Lawyer Disciplinary Boards (NCLDB). He currently serves on councils of the ABA's Center for Professional Responsibility and the Government and Public Sector Lawyers Division of the ABA, and has been invited to serve on ABA consulting teams to review the operation of the discipline systems and present recommendations to the Supreme Courts of New Mexico and Tennessee.

Governor Appoints Arthur Cotter To Berrien County District Court

Governor Snyder has appointed Arthur Cotter to the 5th district court, filling the vacancy created by the resignation of Judge Angela M. Pasula, who was elected to the Berrien circuit court. Cotter was elected Berrien County prosecutor in 2006 and has served in the prosecutor's office for 27 years. He is a graduate of the University of Michigan and the University of Detroit School of Law.

Governor Appoints Jeffrey Sauter To Eaton County Circuit Court

Governor Snyder has appointed Eaton County Prosecutor Jeffrey Sauter to the 56^th Circuit Court, to complete the last two years of the judgeship previously held by retired judge Cal Osterhaven. Sauter has served as prosecutor since 1991 and is a past president of the Prosecuting Attorneys Association of Michigan. He is a graduate of Central Michigan University and Thomas M. Cooley Law School. 

Indiana: "Virulent Bigotry" Results In Three Year License Suspension

The Indiana Supreme Court has suspended a lawyer for at least 3 years for the "virulent bigotry" he demonstrated in defense of a foreclosure action against him.  One justice would have disbarred him. From the opinion:

In 2009, Respondent handed out flyers entitled "Stop the Plunder in Bankruptcy Court" in downtown Indianapolis. The flyer, which was based upon Respondent's Chapter 13 bankruptcy case, called Sellers (without naming them) "slumlords," called their attorneys (naming the firm) "bloodsucking shylocks" who were part of a "heavily jewish (sic) . . . reorganization cartel," and made free-ranging disparaging remarks about Jews generally, from the fall of Jericho, through 1925 Berlin, to their alleged involvement in the 9/11 attacks.

Aggravating and mitigating facts. The hearing officer found as a fact in aggravation that Respondent continued his offensive conduct in this disciplinary proceeding by, for example, seeking discovery to establish that Sellers were mentally impaired, serving interrogatories upon the Commission seeking confirmation of Respondent's anti-Semitic statements, attempting to use discovery to ask for the names of Commission members and others with Jewish affiliations, and attacking the merits of rulings in the bankruptcy and foreclosure proceedings that were long ago final.

HT: Legal Profession Blog

Two Lawyers Sued For Copyright Theft of "To Kill A Mockingbird"

There's no greater lawyer-hero in fiction than To Kill A Mockingbird's Atticus Finch. For that reason there is special resonance to the fact that two defendants in the complaint alleging that author Harper Lee, aging and infirm, was tricked into relinquishing rights to the beloved story, are lawyers. Samuel L. Pinkus is identified in news stories as a literary agent and son-in-law of Lee's longtime literary agent, but he is also lawyer. Another defendant, Gerald Posner, is an investigative journalist, but is also lawyer.

Justice At The Boston Marathon Finish Line

A Virginia Supreme Court justice who ran his first Boston Marathon this year crossed the finish line just minutes before the first bomb blast, and discounted the significance until the second blast. Justice Bill Mims was Virginia's Attorney General before joining the Virginia Supreme Court in 2010. Mims said that once he was aware that the blasts were deliberate he was reminded of the mass shooting at Virginia Tech, the sixth anniversary of which took place the day after the Boston event.

Problem Prosecutors: A Proposal

The New York Daily News and Pro Publica publish an op-ed responding to the phenomenon of prosecutorial misconduct — judges should be required to report problem prosecutors to their states' disciplinary systems:

Senior prosecutors we interviewed contend that almost all of the instances of alleged misconduct amounted to honest mistakes or differences of opinion on the requirements of the law. And they like to note that cases of misconduct represent a tiny portion of the criminal charges processed each year by courts in the five boroughs.

It's hard to know what to make of that claim. The vast majority of convictions, more than 90 percent, are plea bargains — deals struck outside of public view. If prosecutors are willing to violate rules at trial, who is to say what is going on behind closed doors?

More importantly, the claim that instances of serious misconduct are few amounts to a convenient bit of misdirection. The issue, at heart, is not the frequency of misconduct, but the lack of consequences for prosecutors who violate their oaths.

All of this forces us to ask: What are judges obligated to do, and should they be required to do more?

A judge in New York who learns there is "substantial likelihood" that a lawyer has committed a "substantial violation" of legal ethics must take "appropriate action."

A lawyer who "knows" that another lawyer has violated ethics rules so that a "substantial question" is raised concerning the suspect lawyer's honesty, trustworthiness or fitness must report the issue to an appropriate authority.

Take a close look at these words and you can see pretty quickly why the system has broken down. The words are fuzzy; they leave tremendous discretion.

Judges have responded that their opinions are the equivalent of a misconduct report. Pro Publica and the NYDN reject that as ineffectual. And they reject an obvious alternative, requiring defense attorneys to report prosecutorial misconduct, as impractical. "Few who work regularly in the criminal courts are eager to bite the hand that plea bargains."

Although the op-ed notes that some states (not Michigan) require what the op-ed urges New York to do, a 2011 Yale Law Journal essay suggests that such rules, and the enhanced provisions of the model rules of professional conduct, have not been effective:

Given the Supreme Court’s repeated endorsement of professional discipline as the appropriate vehicle for addressing allegations of prosecutorial misconduct, one might suppose that state bar agencies frequently sanction prosecutors. In fact, prosecutors are rarely held accountable for violating ethics rules. In 1999, Chicago Tribune reporters Maurice Possley and Ken Armstrong identified 381 homicide cases nationally in which Brady violations produced conviction reversals. Not a single prosecutor in those cases was publicly sanctioned. Four years later, a study by the Center for Public Integrity found 2012 appellate cases between 1970 and 2003 in which prosecutorial misconduct led to dismissals, sentence reductions, or reversals. Yet prosecutors faced disciplinary action in only forty-four of those cases, and seven of these actions were eventually dismissed. The most recent study indicates that depressingly little has changed since 2003, at least in California. The Northern California Innocence Project identified 707 cases between 1997 and 2009 in which courts made explicit findings of prosecutorial misconduct, 159 of which were deemed harmful. The Project’s review of the public disciplinary actions reported in the California State Bar Journal, however, revealed a mere six—out of a total of 4741—that involved prosecutorial misconduct.

Meanwhile, Legal Ethics Blog notes three California disciplinary cases against prosecutors and wonders if it is a trend. A comment is skeptical: "same way that the sighting of a northern hairy-tailed wombat would be a trend."