SBM Blog

Updated: Indiana Disbars Lawyer For Revelations In Autobiographical Book

Above The Law says the former client who is the subject of the book at the center of Indiana lawyer Joseph Stork Smith's disbarment this week is Dee Dee Benkie, pictured here from her Twitter profile.

Breaking: The Detroit Bankruptcy Petition

Here it is (PDF).

Why Didn't Nixon Destroy The White House Tapes Before They Destroyed Him?

Forty years ago today President Nixon reportedly ordered the disconnection of the White House taping system, whose existence had been revealed by Alexander Butterfield to the Senate Watergate committee the week before. The anniversary might well have passed without comment but for the death this week of Nixon's legal counsel, Leonard Garment.  Stephen Gillers at Legal Ethics Forum writes about interviewing Garment, calling the tapes the most legally consequential piece of real evidence in U.S. history.  From the post:

Garment told me that Nixon would not have destroyed the tapes even if he could. They were "financially priceless" and they established his place in history. He also told me that it would not have been possible to do. No one would have helped him. White House aides, current and former, were already under investigation and there were some indictments. Nixon would have had to do it alone.

Photo: Rose Mary Woods, from Gerald R. Ford Library and Museum

Controversial But Important Advice To New Lawyers: Assume Good Will

This is not just advice for lawyers, it's advice for everyone, but lawyers are particularly vulnerable to the proposition that you need to assume everyone's out to get you.

Be vigilant, but treat your colleagues and your adversaries like you expect them to be fair and honest and filled with honorable intentions:

• If they are indeed fair and honest and filled with honorable intentions -- as most lawyers are (really) -- they will understandably be antagonized by assumptions to the contrary
• If they are on the fence, your positive expectations are likelier to push them in the right direction.
• If they act to take advantage of your expectations, be prepared to pound them into the ground.

You Can't Make This Stuff Up: Indiana Disbars Lawyer For Revelations In Autobiographical Book

The Indiana Supreme Court has disbarred an attorney for writing and publishing a book in which he describes his representation of a client, with whom he had a sexual relationship, including such details as bail and plea agreement negotiations, conversations with a police detective and with the client, the client's mental and physical state, the source of funds for restitution, and discussions about his fees. The lawyer said that the client consented to the disclosures ("That is a great idea! Write a book and make me famous!"), but the disciplinary hearing officer concluded that the lawyer had not demonstrated the level of informed written consent necessary to permit the disclosures.

From In The Matter of Joseph Stork Smith:

In 2010, Respondent authored a book purporting to be a true autobiographical account of Respondent's relationship from roughly 1990 through 2010 with a former client ("FC"), who was active in politics and at one point held a high-level job in the federal government. A sexual relationship between FC and Respondent began around 1990 and continued until about 2001. After their sexual relationship began, Respondent represented FC on various legal matters during these years. They maintained a personal relationship for a time thereafter. Respondent's professed motivation for writing the book was at least in part to recoup legal fees FC owed him and money FC had obtained from him over the years. ...

In the book, Respondent revealed personal and sensitive information about FC that was obtained in confidence as her attorney, and its revelation had the potential of causing her public embarrassment and other injury, such as impairment of her employment opportunities. Respondent's selfish motivation in deliberately attempting to reveal this confidential information to a wide audience for monetary gain, his false statements in the book and in this disciplinary matter, and his lack of any remorse lead us to conclude that that disbarment is appropriate for Respondent's misconduct.

The Court concludes that Respondent violated the Indiana Professional Conduct Rules by, among other things, revealing confidential, sensitive information relating to his representation of a former client by publishing it in a book for personal gain and by engaging in conduct involving dishonesty or misrepresentation.

For Respondent's professional misconduct, the Court disbars Respondent from the practice of law in this state effective August 28, 2013.

And here's a blurb about Smith on a Google page offering the apparently self-published book, Rove-ing Her Way to the White House: Machiavelli's Sexy Twin Sister:

Does The Filibuster Deal Make The Recess Appointment Case Moot?

Nope. According to John Elwood at SCOTUSblog, the deal will not moot National Labor Relations Board v. Noel Canning:

I believe it will not, because the NLRB lost jurisdiction over the Noel Canning matter when it was appealed to the D.C. Circuit.  And based on the Court’s recent actions (and then-Solicitor General Kagan’s recommendation), I suspect the Court will proceed to decide the case.

Further confirmation from the White House briefing today:

 

Q    Now that you have this deal, do you want to see the -- does the administration and the President want to see the Supreme Court weigh in on recess appointments?  Or are there any considerations of asking them to dismiss that case?

MR. CARNEY:  Well, I would refer you to the Department of Justice, but I would say that the question of whether any President should retain the ability that has been enjoyed by Presidents for over a century to make recess appointments is one that is still at issue.  And our views on this have not changed.  What the next steps are I would leave to the Justice Department to describe, but as you noted, that case is before the Supreme Court, and our position on it and the right of this President and any President going forward to make recess appointments as predecessors have for more than a century remains very strong.

Q    So it sounds like you would like to see the Supreme Court continue --

MR. CARNEY:  Well, again, the answer is, yes.  But for specific legal questions I would refer you to Justice.

 

Who's The Best Writer On The U.S. Supreme Court? Nominee #2

A guest blogger at Volokh Conspiracy, Ross Guberman, having singled out Chief Justice John Roberts for the honor, goes on to nominate Elena Kagan in a subsequent post for her "razor-sharp clarity," "peerless use of examples," and "personal, pragmatic touch."  Example:

Here is the nutshell version of this case, unfortunately obscured in the Court’s decision. The owner of a small restaurant (Italian Colors) thinks that American Express (Amex) has used its monopoly power to force merchants to accept a form contract violating the antitrust laws. The restaurateur wants to challenge the allegedly unlawful provision (imposing a tying arrangement), but the same contract’s arbitration clause prevents him from doing so. That term imposes a variety of procedural bars that would make pursuit of the antitrust claim a fool’s errand. So if the arbitration clause is enforceable, Amex has insulated itself from antitrust liability — even if it has in fact violated the law. The monopolist gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse.

And here is the nutshell version of today’s opinion, admirably flaunted rather than camouflaged: Too darn bad.”

Law Schools: If You Overbuild It, They Will Go

Faculty, that is. For a few years now, ever since law school enrollment began to nosedive, the legal futures gurus have been predicting a slimmed-down legal academy. According to a story in the Wall Street Journal (sub. req.), the paring has started, especially in middle- and lower-tier law schools.  More evidence? The New York Times has a Dealbook piece, "The Unseen Costs of Cutting Law School Faculty," about Seton Hall layoffs. And, not so coincidentally, the ABA Section of Legal Education and Admissions Bar’s standards review committee voted last weekend to recommend requiring that law schools provide some form of security of position short of tenure to all full-time faculty members. 

On The Professional Ethics Of The Zimmerman Prosecution

John Steele's assessment at Professional Ethics Blog is scathing. Concurrently, Colin Miller at EvidenceProf Blog takes the media to task for misstating the Brady rule, and questions whether there was a violation in what the prosecution withheld from the defense.

Meet The Amazing Author Of American Public Defense

Born July 16, 1849.  A seriously amazing human being.  For starters, read her Wikipedia bio.  A sample:

At the Chicago World’s Fair in 1893, during a "congress" of the Board of Lady Managers, Foltz introduced her idea of the public defender, with a speech entitled "Rights of Persons Accused of Crime — Abuses Now Existing." Foltz's then-radical concept of providing assistance to indigent criminal defendants is used today throughout the United States. She also created
a similar model for the California Parole System.

For more, read Woman Lawyer: The Trials of Clara Foltz and June 29, 1915: Pioneer Prosecutor Predicts Public Defense.