Ripeness & what not to file during the pandemic.

Who would’ve guessed that this blog would serve as forum to discuss constitutional issues?

Nobody, that’s who.  Especially not my Con Law professor at GW.

Anyhow, with my 1L year in mind, I’m confident of two things: (1) I’ll get this wrong; and (2) fans of the justiciability doctrines will let me know that I got this wrong.  So, I’ll do what I usually do: use basketball to make my point.

First, for non-legal scholars, and VERY generally, courts rule on actual controversies.  Not theoretical claims.

For instance, many of you are familiar with the saying “that’s a moot point.”  In short, if you bring a claim to court after the controversy has resolved, you’re too late.  Your claim is moot.

Well, the opposite can happen: you can get to court too early.  If you bring your claim before there’s an actual controversy for the court to decide, the court will dismiss your claim as “not ripe.”

(inside lawyer joke: clearly, I loved the nutshells!)

Ripe Tomato Pictures | Download Free Images on Unsplash

For instance, when I was a high school basketball coach, coaches were famous for chatting up the refs before the game.  The friendly banter would often segue from “you are sooooo much better than the other refs in this league,” to “hey, #12 on their team fouls every time.”

Now, even if it’s true that #12 fouls every time, which it is, the ref can’t call a foul on #12 during warm-ups.  The ref has to wait until the game starts and then do what refs do: judge whether #12 fouls, with me yelling suggesting “FOUL!!” and the other coach suggesting  yelling “no, it isn’t.”

Intuitively, most know that if I had waited two or three plays to suggest that #12 had fouled, the ref would’ve asked “what do you want me to do about it now?”  That’s mootness.  Ripeness is me asking the ref to call a foul on #12 during warm-ups.

Ripe Strawberry - Maddcatt Vapors

What a long & winding road to get to the crux of this blog!  Which is this:

Was That Wrong? is one of the more popular features on this blog.  As loyal readers know, I don’t ask Was That Wrong? until a disciplinary sanction has been imposed against a lawyer’s license.  Basically, I’m a mootness guy.

Which is why this post is not a Was That Wrong? entry: the lawyer involved has not been sanctioned.  Thus, there is no controversy before me.  If you askWas That Wrong?, I will dismiss your question as  “not yet ripe.”

Instead, the following is intended to guide lawyers who are trying to figure out which cases to file during a pandemic in which Vermont courts are accepting only emergency filings.

Loyal reader Geoff Bok tipped me off to this post from the FindLaw Blog.  The post links to this March 18 order issued by United States District Judge Steven Seeger.

Trust me, Judge Seeger’s order is well-worth the the time you spent reading to the end of this blog.

Thank you Geoff!

And, yes, in my example, I had standing.  I was the aggrieved coach!

This post is dedicated to Paul Burgoyne.  Don’t take no crap from coaches Paul!

 

 

Don’t Be This Guy.

Two topics I’ve covered before are civility & puffery.  As to the former, my thoughts are best summed up by my post Don’t Be A Jerk.  As to the latter, well, puffery in negotiations isn’t necessarily unethical.  Assuming, of course, that the conduct at issue can legitimately be described as “puffery in negotiations.”  More on that in a moment.

Over the past 21 years, I’ve seen some incredibly bad behavior by lawyers.  I’ve never seen anything like the story I’m about to recount, a story covered by Above The Law and Professor Bernabe’s Professional Responsibility Blog.  I’m not the only one. Indeed, the story is one of  behavior so bad as to cause opposing counsel to file a request for relief that ended with:

  • “In a collective 75 years of legal practice, [defense] counsel have never seen
    behavior that even comes close to that of [plaintiffs’ counsel] here. It is unlikely that the Court has either.”

I can hear you now: “Mike, tell us more! What was this behavior?”

Here’s what I’m willing to share.

Water damaged a house.  A contractor hired by the homeowners’ insurance company estimated the damage at $150,000, which is the amount that the insurance company paid on the claim.  The homeowners sued, contending that they incurred $350,000 in covered damages.

Negotiations (and discovery) weren’t pleasant. So unpleasant that, last month, the insurance company’s lawyers asked a federal court to dismiss the complaint or, in the alternative, to disqualify plaintiffs’ attorney.  They also requested a restraining order against plaintiffs’ attorney and a protective order preventing plaintiffs’ attorney from deposing defense witnesses. A memorandum in support of the request opened with:

  • “Plaintiffs’ attorney . . . has embarked on a campaign of abusive and intolerable conduct that began with profanity-laced emails, escalated to discriminatory slurs, and culminated in repeated threats of physical violence against Allstate’s witnesses, Allstate’s attorneys, and their families.”

This is where my job as tour guide ends.  To continue the journey, the insurance lawyers’ memorandum in support of the request is here and a declaration from one of the lawyers is here.  I suspect the odds that you’ve seen conduct as egregious are greater than the odds that I will win next year’s Boston Marathon.

The Above The Law post includes an excerpt of plaintiffs’ attorney’s response:

 

Umm, that’s not the kind of puffery I blogged about.  Also, the attorney’s apology and promise not to do it again make me think of Costanza: was that wrong?  Perhaps the lawyer will soon join those who learned the hard way that the answer is “yes.”

For now, and per an update on Above The Law, the court ordered the plaintiffs’ attorney to appear and show cause why the insurance company’s requests for relief should not be granted.  The hearing is set for December 16.

Stay tuned.

costanza

 

 

 

 

Fake Lawyer Loses Job. Think deeper.

John Grisham’s The Rooster Bar is a novel.  That is, it’s a work of fiction.

Image result for the rooster bar images

The plot?

Without giving much away: three law students drop out of law school.  Under fake names, they pose as lawyers, open a law firm, and represent clients without ever having passed the bar exam or obtained law licenses.

Sometimes life imitates art.

Last week, an assistant public defender in Illinois was fired after a judge discovered that she did not have a license to practice law and had never passed the bar exam.  The law school grad had worked on “about 80 cases” since being hired last fall.  The ABA Journal,  Belleville News-DemocratEdwardsville Intelligencer and the Madison-St. Clair Record reported the story.

I considered posting this in the Was That Wrong? format.  For several reasons, I opted not to.  One of those reasons was my reaction to an aspect of the story,

Per the Madison-St. Clair Record, the non-lawyer’s former boss:

  • “said that he typically reviews the work of all staff, discussing with prosecutors and his own staff as to a defender’s competence.  There was ‘never anything that stood out to make me question her abilities,’ he said.”

Per the Edwardsville Intelligencer, the non-lawyer’s former boss “had no problem with [the non-lawyer’s] work . . . other than mistakes most new attorneys encounters.”

It makes me wonder: if she was providing competent legal services to her clients, what’s that say about the bar exam requirement?

Don’t get me wrong. I am not condoning the non-lawyer’s conduct.  It was infected with deceit and, as referenced in the news reports, might be criminal.  No matter our entry requirements, the privilege to practice law should be denied to people who lie to receive it and while exercising it.  Further, the non-lawyer’s decision to misrepresent herself as a licensed lawyer raises significant concern about her judgment, honesty, and trustworthiness.  If she’ll lie about having a law license, what else will she lie about?

But that’s a question for a character and fitness committee.

The fact remains that, for 8 months, she apparently provided competent representation to her clients despite never having passed the bar exam.

Small sample size?  Yup.  Maybe time would have proven she lacked minimal competence.

Still, I know for a fact that there are law grads here in Vermont who, unfortunately, have failed the bar exam too many times to be allowed to sit for it again.  Many did good, competent work in offices both pubilc and private while continuing to study to pass the exam.  In other words, despite track records of actual competence, track records of scoring too low on exams keep them from practicing law.  Most, understandably, have left the legal profession altogether.  I’m not sure why, but I can’t help but be reminded of this 2017 post in which I argued that we cannot let the perfect be the enemy of the good in the fight to increase access to legal services.

I started with Grisham.  I’ll end with Tolstoy, by way of Seinfeld and Edwin Starr.

In this scene, Elaine was wrong. The original title for War and Peace was not War, What Is It Good For?  Still, at least in the isolated incident involving the fake lawyer in Illinois, one might conclude that the bar exam was good for absolutely nothing.

Huh.

Don’t tell the opposing party to commit suicide.

Not too long ago, I’d often use the Was That Wrong? trope to highlight outrageous attorney misconduct.

This story gets its own post.

Yesterday, the New York Supreme Court, Appellate Division, First Judicial Department suspended a lawyer’s license for 4 months.  The lawyer’s violations included telling an unrepresented opposing litigant “you’re one of those people in the world that really should just kill themselves because you’re worthless.” Above The Law, the New York Law Journal, and the New York Post reported the decision, which is here.

The lawyer’s misconduct involved two different matters.  In the first, and per the decision, the lawyer entered an arbitration, took pictures of a witness who was testifying, and said to the witness:

  • “This will be in the newspaper when I put this in there after we kick your asses. You should be ashamed of yourselves for kicking people out of a building and you have to live with yourself.”

The second matter?  Well, I’m not sure you’d believe me.  So, I’ll quote from the decision:

“In the second matter, respondent’s firm represented the owner of several residential buildings. A resident of one of these buildings, James Dawson, allegedly made postings to a website accusing the owner of overcharging tenants. Respondent sent a letter to Dawson dated September 7, 2016, accusing him of creating a false and defamatory website and demanding that he take it down or face a lawsuit. Respondent received no response to this letter.

On September 13, 2016, respondent sent Dawson a text message which read, in relevant part:

‘We are filing a lawsuit against you for millions of dollars of damages you have caused as a result of your defamatory website. . . . We are also in contact with the location [sic] police station and we have a copy of the complaint your ex-girlfriend filed against you and we will be using all means necessary to protect our clients.’

Later on the same day, respondent telephoned Dawson, who recorded the conversation. Respondent told Dawson, inter alia, that Dawson was ‘not that bright,’ and that, if he did not take the website down, he would ‘be bankrupt soon.’ Respondent told Dawson that he ‘should commit suicide. . . . [y]ou’re one of those people in the world that really should just kill themselves because you’re worthless.’ While still on the phone with Dawson, respondent said to a person in his office about Dawson ‘start the lawsuit. . . . I need him arrested. . . . I gotta get this guy. He’s gotta be arrested.’ Respondent told Dawson that respondent’s employee who would be ‘running the investigation’ of Dawson ‘used to run the district attorney’s office,’ and claimed that respondent’s office was ‘in contact’ with the District Attorney’s office. He told Dawson, ‘[y]ou have no idea what you stepped into. . . . Welcome to my world. Now you’re my bitch. . . . you’re gonna be paying for this heavily for the rest of your life.'”

In case you still don’t believe it, the recording of the conversation is here.

This story reminds me of a conversation that broke out during a CLE I did at the VBA Mid-Year Meeting; a conversation that prompted me to suggest: be nice to someone today.  This is but another reminder.

Because the conduct?  Yes, that was wrong.

Related image

 

 

 

 

 

Don’t be an “Empty Head”

When I was a kid, my head was so big that baseball hats and football helmets wouldn’t fit.  So, one of my best friend’s brothers always called me “Mr. Potato Head.”

I didn’t love the name.

See the source image

But maybe it’s better than having a federal court reprimand me for “errors made with an empty head.”

As reported by Bloomberg’s Big Law Business, the Court of Appeals for the 7th Circuit recently did exactly that to an Illinois lawyer. The order is here.

The lawyer’s troubles began when the appendix to a brief she filed included material that should have been redacted.  Opposing counsel notified the court.  The court ordered the lawyer to file a redacted appendix.

She did.  Along with a brief that included “substantial changes . . . altering both propositions of fact and law.”

Opposing counsel asked for an extension of time to reply to the new propositions.  The court granted the extension, but ordered the lawyer to “file a new brief, identical to the original, making only the changes required to redact information in the appendix.”

Seems clear enough. So, lawyer filed a third brief.

As the appellate court noted, “yet again, changes had been made.”  The new filing “did not match either” of the first two.

The court ordered the lawyer to file a new brief that matched the original and to show cause why she should not be disciplined.

Lawyer argued that the original order to redact the appendix implied that she could change the brief that it accompanied.   Per the court, “we accept her assertion that she believed that she could do so, but errors made with an empty head are hard to excuse.”

Ouch.

The court added that “making an error once is bad; making it twice in a row . . . is unfathomable.”

But for the fact that the court reprimanded the lawyer instead of imposing a more serious sanction, this might have qualified for Was That Wrong?

Don’t be an empty head.

 

 

Was that Wrong? “Inexplicable Incompetence” and a Thomas Jefferson costume.

Was That Wrong? is a semi-regular column on Ethical Grounds. The column features stories of the absurd & outrageous from the world of legal ethics and attorney discipline. My aim is to highlight misconduct that I hope you’ll instinctively avoid without needing me to convene a continuing legal education seminar that cautions you to do so.

The column is inspired by the “Red Dot” episode of Seinfeld. In the episode, George Costanza has sex in his office with a character known only as “the cleaning woman.”  His boss finds out.  Here’s their ensuing exchange :

(Scene) In the boss’ office.

  • Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
  • George: Who said that?
  • Boss: She did.
  • George: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.
  • Boss: You’re fired.
  • George: Well you didn’t have to say it like that.

The full script is HERE.  The scene is HERE.

costanza

Today’s story is an oldie that, I’m embarrassed to say, I only found last night.  It’s the story of a Kansas attorney who was disbarred for “inexplicable incompetence.”   The disbarment order is here.  It’s a doozy  I suggest you start, however, with the coverage from The Topeka Capital-Journal, the ABA Journal, or the Wichita Eagle.

I can’t do the story justice.  I’ll say this: it’s the story of a lawyer who dressed up as Thomas Jefferson for the supreme court hearing on whether he should be disbarred for thoroughly botching a capital murder case.  And there’s video.

Anyhow, someday I’ll get my YouTube channel up and running.  When I do, here’s how I imagine scripting this one:

  • Court: We’ll get right to the point.  It’s come to our attention that during a capital murder trial you didn’t have any idea what you were doing, didn’t seek help, agreed to a contingent fee in a criminal case, and told the jury that your client was a “professional drug dealer” and a “shooter of people.”
  • Lawyer: Who said that?
  • Court: The transcript says that.  It’s also come to our attention that you didn’t follow-up on evidence that your client’s cell phone records might provide an alibi.
  • Lawyer: (his ACTUAL REAL LIFE response) “I had no idea that cellphones had GPS capabilities at that time. Did you? I didn’t. If I had known it, I’d have been on it like a dog on a bone.”  (tech competence anyone?)
  • Court: Finally, it’s come to our attention that, during the penalty phase, after the jury had convicted your client, you argued that the jury should impose the death penalty for whoever had committed the crime.
  • Lawyer: Was that wrong? Should I have not done that? I tell you I gotta plead I ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.
  • Court:  Your are disbarred for inexplicable incompetence.
  • Lawyer:  (actual real life statement): “I am incompetent!” 
  • (long pause)
  • Lawyer.  But you didn’t have to say it like that.

 

prior entries:

 

Was That Wrong? Cannabis (In)competence

As I’ve blogged, in 2016, the Court adopted a comment to Rule 1.2 authorizing lawyers to advise clients on cannabis & marijuana issues that are legal under state law.  If you’re a Vermont lawyer who intends to do so, make sure you know what you’re talking about.

Was That Wrong? is a semi-regular column on Ethical Grounds. The column features stories of the absurd & outrageous from the world of legal ethics and attorney discipline. My aim is to highlight misconduct that I hope you’ll instinctively avoid without needing me to convene a continuing legal education seminar that cautions you to do so.

The column is inspired by the “Red Dot” episode of Seinfeld. In the episode, George Costanza has sex in his office with a character known only as “the cleaning woman.”  His boss finds out.  Here’s their ensuing exchange :

(Scene) In the boss’ office.

  • Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
  • George: Who said that?
  • Boss: She did.
  • George: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.
  • Boss: You’re fired.
  • George: Well you didn’t have to say it like that.

The full script is HERE.  The scene is HERE.

costanza

Today’s lesson comes courtesy of an order from the Florida Supreme Court disbarring a lawyer who advised clients that it was legal under state law to cultivate, possess, and use marijuana for medical purposes.  It wasn’t. The Chicago Tribune and the Cannabist were among the outlets to cover the story.

Hint:  it’s never a good sign when a state supreme court’s disciplinary order includes: “The most prominent features of Respondent’s misconduct are incompetence and extremely serious harm to clients.”  Opinion, p. 5.

Someday I hope to launch a YouTube channel tied to this blog.  When I do, I’ll adapt Was That Wrong entries to the screen.  Here’s how I envision scripting today’s:

  • Court:  We will get right to the point. It has come to our attention that you;
    • advised clients that it was legal to grow, possess, and use marijuana for medical purposes;
    • referred these clients to doctors who weren’t licensed to practice medicine in Florida and who provided your clients with meaningless “legal certifications” and “grow cards;”
    • told clients “not to worry” when they called to tell you that the police had stopped by to instruct them to dismantle grow operations; and,
    • did not refund fees to clients who, having relied upon your advice, were arrested, charged, convicted, fined, and lost almost everything including, in at least one case, a professional license; and,
    • continued to insist that your advice was correct even as your clients were prosecuted criminally.
  • Lawyer: Who said that?
  • Court: Your clients did.
  • Lawyer: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, cause I’d only been admitted for 3 months when I started doing that.
  • Court: Disbarred.
  • Lawyer: Well you didn’t have to say it like that.

Again, Comment 14 to Rule 1.2(d) of the Vermont Rules of Professional Conduct authorizes lawyers to provide clients with advice on cannabis & marijuana issues that are legal under state law.  Nothing in the rules, however, relieves lawyers from doing so in a competent manner.

Lawyers Robbing Banks: where the duty of competence meets Was That Wrong

Regular readers know that two of my favorite topics are:

  1. (1) the duty of competence; and,
  2. (2) my Was That Wrong column.

My posts on tech competence are here.  The fiascos that have earned lawyers an appearance in Was That Wrong are here.

Well, like peanut butter & chocolate in a Reese’s cup, it seems that competence & Was That Wrong have finally joined forces to bring me even greater enjoyment in unison than each does on its own.

The ABA Journal and HeraldNet report that a lawyer tried to rob a bank. Some interesting tidbits:

  • In 2014, the lawyer’s license was suspended as a result of trust account mismanagement.  He still owes about $50,000 as a result of that event
  • The lawyer demanded $50,000 from the bank
  • The demand note instructed the teller to ““Count to 500, 1 Mississippi, 2 Mississippi, 3 Mississippi etc. etc. etc. before you call police.”

The final tidbit is where competence comes in.  Is that competent bank robbing?

Now, you might argue, “but Mike, Rule 1.1’s duty of competence doesn’t apply to a lawyer who is robbing a bank!”  In the words of the inimitable Lee Corso . . .

corso

Take a look at Rule 5.7. Basically, the rule makes lawyers subject to all the other rules when they are providing “law-related services.”

Shrute Question

Channeling my inner Dwight Schrute: “question: is robbing a bank to pay back trust funds a law-related service?”  For entertainment purposes, let’s say “answer: yes!” Thus, Rule 1.1 applies.

With that having been established, the question becomes whether “count to Mississippi 500 before you hit the alarm” satisfies the duty of competence.  I don’t think so.  Here’s why.

First, 500 is way too high.  If I know anything from movies, it’s that tellers hit the alarm right befote the robber is out the door…….but only if they haven’t already sneaky hit it while pretending not to know how to open the drawer!

The robber had 5 Mississippi max.

Next, the critical fact here is how the lawyer phrased the note: he instructed the teller to say the number, then “Mississippi.” Wrong construct.

You see, everyone knows that when rushing the quarterback in touch football, it takes far longer to count “Mississippi, number” than it does “number, Mississippi.”  That’s how I always sacked my brother . . . “1 miss, 2 mis, 3 mi”  and the rush was on.

Meanwhile, when I had the ball, I made him count “Mississippi 1, Mississippi 2, Mississippi 3.”  For whatever reason, in that construct, would-be tacklers tend to enunciate “Mississippi” longer than in the reverse construct, thereby giving the QB more time to pick them apart.

In conclusion, the lawyer failed to ensure maximum getaway time by failing to instruct the clerk to use the slowest Mississippi construct possible.  Ergo, violation of the duty of competence.

And, yes.  I suspect this lawyer will find his way into Was That Wrong.

P.S.  stories about bank robberies always remind me of the Fun Lovin’ Criminals.