SBM Blog

Grievance Administrator Petitions For Increased Sanctions for Valerie Colbert-Osamuede

The 90-day suspension ordered by a hearing panel for Valerie Colbert-Osamuede, the last of the five disciplinary cases arising from the Kwame Kilpatrick text-message scandal to be decided, has been appealed by the Grievance Administrator as too lenient. The report of misconduct is here; the notice of suspension pending the appeal is here.

All In The Family: Join Our Mother/Offspring Lawyer Tribute

Last year's Father's Day post on Father/Son- or Daughter-lawyer combos was such a big hit that we promised a Mother's Day follow-up this year. So if you are the Michigan mother-lawyer of a lawyer, or the Michigan lawyer-child of a mother-lawyer, tell us so we can include you in the Mother's Day compendium. You can let us know by a comment to this post, or by an email to blog@mail.michbar.org.  While you're at it, you might consider making a donation to the Access to Justice Fund in your mother's name.

Pictured here is a trifecta -- the family lawyer team of mother Etta Zivian, son Robert Zivian, and daughter Sara Zivian Zwickl. Together, they helped change a young mother's life through their pro bono work. Etta represented the young mother in her divorce from her abusive husband and had her name removed from the CPS records that cited her for failure to protect her children. Robert  helped to terminate the father’s parental rights. Sara assisted with drafting a will and assigned the person whom Christine wanted to be guardian of her children if anything were to happen to her.

Forty Years Between Admission and Graduation For New Michigan Law Grad

Bravo, John Graves. Between admission to law school to the University of Michigan Law School forty years ago and his enrollment there three years ago, he packed in a full career in education, including as superintendent for five school districts, but he always felt the "pull of the law school."  Ann Arbor.com has the story.

Can You Be Suspended For "Shockingly Poor" Briefs?

Poor writing is certainly a factor in New York.  From a decision announced last week:

When respondent informed the Second Circuit's Committee on Admissions and Grievances that he waived his right to appear at a hearing and did not intend to present witnesses on his behalf, but would rely on his July 2009 response, the Committee issued a report without holding a hearing, relying on court records and respondent's submissions. It concluded that respondent had submitted briefs of "shockingly poor quality," replete with defects such as incorrect clients' names, inclusion of irrelevant boilerplate, and reference to evidence that had not been submitted. It observed that respondent's explanation that he had relied on a paralegal for some of his work, and had filed that work without reviewing it, constituted an admission that he had aided the unauthorized practice of law in violation of DR 3-101(A) and failed to supervise non-lawyer staff acting at his direction, in violation of DR 1-104[C] and [D]. It found that respondent had neglected numerous matters in violation of DR 6-101(A)(3), resulting in the dismissal of seven petitions. It also found that most of his filing of petitions in the wrong circuit resulted from a failure to read the records and, in any event, showed a lack of respect for and lack of candor toward the court. The Committee on Admissions and Grievances recommended a two-year suspension, with respondent required to present evidence of attendance at CLE classes in brief-writing and law office management before being permitted to resume practice.

Who Owns Your Briefs?

A lawsuit brought by two New York lawyers against West and Lexis/Nexis says the lawyers do.  Gregory Blue and Raymond Bragar have filed a putative class action n the Southern District of New York, seeking damages, disgorgement of profits and a declaratory judgment against the legal publishers for engaging in the "unabashed wholesale copying of thousands of copyright-protected works created by, and owned by, the attorney and law firms." Blue says that he believes the lawsuit is the first case of its kind in the United States -- while the documents at issue are publicly available in courthouses, the database companies have "gone a step too far" in repackaging and selling the information to lawyers. See "2 Lawyers Sue Over Use of Legal Papers By West and Lexis."

HT: ABA Journal

Support Your Fellow Michiganders: Vote for Soultivity Today

Soultivity, a Washtenaw County-based all-lawyer R&B band, has advanced to the final round of the American Bar Association's Battle of the Lawyer Bands Contest. They're in the top five, and now they need your help to advance to the top spot, for a chance to raise $5,000 for Washtenaw County Bar Association's Law and Justice Fund, and a chance to play at the President's Reception at the ABA's Annual Meeting Aug. 4 at the Art Institute of Chicago.

Soultivity is composed of Robin Stephens on lead vocals, Stefani Carter on backup vocals, Joy Gaines on backup vocals, Jon Emmons on bass, Charles Groh on guitar, Robert Killewald on guitar, Mike Gatti on guitar, John Reiser on keyboards, and Robert Carbeck on drums.

They are currently running in third place in the battle of the lawyer bands. Help them make their mission, "Making music for charity," a reality by casting your vote for them today.

Vote online by 5 p.m. Friday, June 1 at ABA Battle of the Lawyer Bands.

Posted by Samantha Meinke

Deterring Prosecutorial Misconduct: Is Shaming Appropriate?

A story in the National Law Journal (subs. req.) cites evidence that courts are beginning to take prosecutorial misconduct more seriously than in the past, and are using a new technique:

In case after case, prosecutors have bloodied themselves with self-inflicted wounds. Yet courts have been able to do little up to now to stem the tide. Legal standards, including concepts like harmless error and the need for prejudice for relief, make it very difficult for courts to simply throw out cases as a type of exclusionary rule against misbehaving prosecutors. The courts are now trying a new tactic. They are "naming names."

To force prosecutors to take personal responsibility for their actions, judges are writing opinions that refer to the offending prosecutor by name. No longer do judges simply refer to misconduct by the "Government." Rather, individual prosecutors must wear the scarlet "P for Prosecutorial Misconduct" as a punishment for their misdeeds.

The story cites two cases as "pointed examples":  In re Special Proceedings, MISC. 09-0198 EGS, 2012 WL 386471 (D.D.C. Feb. 8, 2012),  and U.S. v. Lopez-Avila, 666 F.3d 622 (9th Cir. 2012), opinion amended and superseded, No. 11-10013, 2012 WL 450314 (9th Cir. Feb. 14, 2012). 

Hearing Panel Orders 90-Day Suspension in Valerie Colbert-Osamuede Case

A hearing panel has ordered a 90-day suspension for Valerie Colbert-Osamuede.  Hers is the last of the five disciplinary cases arising from the Kwame Kilpatrick text-message scandal to be decided. Find the order and report here.

On Legal Legends And Fools For Clients

Forbes has an amusing piece and cautionary tale about the time F. Lee Bailey represented himself in a tax matter.

The primary counter-evidence that Mr. Bailey produced at trial to support his position and contradict the agent on these miscellaneous adjustments was Quicken registers and cashflow reports for the 1993 through 2001 tax years. That is, he did not offer receipts or other transactional documents to substantiate the items on his return; he simply relied on his secondary Quicken records.

For several of the years he lacked even those records; but on the eve of trial in 2009, Mr. Bailey was finally able to “unlock” password-protected copies of his Quicken data base from which he made printouts for all nine years.  The data on the three available printouts made earlier (printed in October 1997 for tax year1996, in October 2000 for tax year 1999, and in October 2001 for tax year 2000) and the data on the 2009 printouts for those same three years are not identical and cannot be correlated with each other. …….. And in any event, the corrected data (if they are correct) on the later printouts (if they really are later) do not correspond to the tax returns. ………Rather than correlating the 2009 printouts with the returns, Mr. Bailey simply criticizes the Commissioner’s position for failing to take into account the 2009 printouts.

The piece is also noteworthy for its creative use of video to spice up the story.

Decision Upholding Andrew Shirvell's Firing: "Conduct Unbecoming A State Employee" vs. Free Speech

The Civil Service decision issued Tuesday upholding the firing of former assistant attorney general Andrew Shirvell includes this observation on the higher standard of conduct applying to attorneys:

The ultimate question before the hearing officer is whether the conduct of the grievant constituted conduct unbecoming a state employee and, if so, whether discharge was the appropriate penalty.  The hearing officer would not countenance the pursuit and harassment of any member of a group protected by Civil Service rules on the scale demonstrated here as being worthy of any state employee.  The grievant, however, is an attorney and as such is held to a higher standard of conduct.  The Lawyers Oath of the State Bar of Michigan, in its final paragraph, reads as follows:

I will in all other respects conduct myself personally and professionally in conformity with the high standards of conduct imposed upon members of the bar as conditions for the privilege to practice law in this State.

The hearing officer does not pass judgment on the conduct of the grievant as an attorney, but cites the portion of the oath set forth above as exemplary of the fact that all attorneys are aware, however and wherever they are employed, that they are to conform their behavior to a standard higher than that set for their non-attorney fellow employees. 

The Detroit Free Press says that Shirvell's attorney, Michael Thomas, called the decision "one more example of the state trampling on Shirvell’s First Amendment rights." He said that the decision will be appealed.

From the decision:

The facts as set forth in the findings of fact portion of this decision are but a sparse exemplary portion of the conduct engaged in by the grievant, whether it was in the email to former State Representative Drolet, in the “blog” itself, or in his attempts at confrontation with Armstrong and his acquaintances.  The speech engaged in by the grievant is of the most base, hateful sort.  When one reviews the performance ratings given to the grievant and reviews the opinions in this record of his supervisors as to his abilities as an Assistant Attorney General, it is truly disheartening to see that ability utilized to engage in the reprehensible speech, lies and half-truths that are set forth in the grievant’s “blog” postings.  Even the Washtenaw County prosecutor’s office, in its decision not to prosecute, found the speech “offensive,” “mean spirited,” “childish,” and “disingenuous.”  (Joint Exhibit #3, Tab 30)  This speech, generating the negative publicity that it did for the grievant’s employer, is conduct unbecoming any state employee, let alone a state employee working as an Assistant Attorney General.

The decision says that the Attorney General's office received over 22,000 phone calls about Shirvell's conduct.