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.

 

 

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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.

 

 

Was That Wrong? Forging Wiretap Orders to Spy on a Romantic Rival.

Yet another love story lands a lawyer in the Was That Wrong column.

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 a Brooklyn prosecutor who suspected that a love interest was actually involved with one of the prosecutor’s co-workers. Both Above The Law and The New York Law Journal have covered on the story.

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:

  • Supreme Court:  We’re going to get right to the point.  It’s come to our attention that you forged wiretap orders, by cutting & pasting a judge’s signature, in order to intercept communications between your love interest and one of your co-workers.
  • Lawyer:  Who said that?
  • Supreme Court: You pled guilty to federal charges of illegally intercepting their communications.
  • Lawyer: Was that wrong? Should I have not 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 practicing law 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 this stuff all the time.
  • Supreme Court:  Disbarred.
  • Lawyer:  Well you didn’t have to say it like that.

*************************

Here are the prior entries in the Was That Wrong? Hall of Fame

If these allegations prove true, that was definitely wrong.

Many lawyers have appeared in the famed Question 5 to the #fiveforfriday legal ethics quiz.  Most of them have been fictional.

Other lawyers have appeared in the equally as famous Was That Wrong? column.  Not one of them has been fictional.

Richard Luthmann is well on his way to becoming the first lawyer to appear in both.

In August, Luthmann’s Game of Thrones inspired demand for “trial by combat” earned him a spot in this #fiveforfriday quiz.  This week, he’s back in the news.

Suffice to say, when you’re a lawyer, it’s never a good sign when the  U.S. Attorney issues a press release announcing that you’ve been charged as a conspirator in a scheme to commit fraud, kidnapping, and extortion. The story has been covered by The ABA Journal, Spectrum News, and SILive.

Here’s a quick outline:

  • Luthmann and others are alleged to have conspired to defraud purchasers of scrap metal.
  • The allegation is that the conspirators intended to sell scrap metal in containers that contained very little scrap metal.
  • It is also alleged that the conspirators planned to “use organized crime connections to settle any disputes that arose with disgruntled customers.”

I’ve never been a federal prosecutor, a scrap metal purveyor, or a mobster.  But I’m pretty sure those “settlements” aren’t the type that most lawyers are used to.

In any event, from #fiveforfriday to federal indictment in the span of 4 months is unprecedented.   Was that wrong? Only time will tell.

Archer

 

Was That Wrong? Framing a volunteer at your kid’s elementary school for a drug crime.

Who doesn’t like a good love story???

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 two lawyers who were disbarred in California. As I alluded above, it’s a love story: our disbarred lawyers are married to each other!!! The story has been covered by Above The Law, the California Bar Journal, and OC Weekly.  I recommend the OC Weekly’s post.

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:

  • Supreme Court:  We’re going to get right to the point.  It’s come to our attention that you & your wife got mad at a woman who volunteered at your son’s after school program.  So, you embarked upon a smear campaign against her. It culminated with you sneaking into her car & planting marijuana, Percocet, and Vicodin, then calling the police to report that you’d seen her driving erratically in the school parking lot.
  • Lawyer:  Who said that?
  • Supreme Court: The volunteer, the police, and the jury that convicted you of false imprisonment.  Oh, and, at trial, you admitted it, but argued that you only did it as part of a plan to win back your wife’s favor after she had an affair.
  • Lawyer: Was that wrong? Should I have not 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 practicing law 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 this stuff all the time.
  • Supreme Court:  Disbarred.
  • Lawyer:  Well you didn’t have to say it like that.

For more, here are the previous entries in Was That Wrong?

Was That Wrong?

Don’t forget to send me your votes for Top 3 novels involving the law, a lawyer, or lawyers!

Now, I know it has only been a week since I posted a Was That Wrong?, but as they say, you’ve got to go where the evidence leads you.  Plus, for those of you for whom the next few days will include a daunting amount of time with family, today’s topic will likely serve as better conversation fodder than a more scholarly post – to the extent any of my posts can be described as “scholarly.”

As a blogger, this year I’m thankful for the lawyer who managed the impossible: multiple Was That Wrong? moments in a single disciplinary case.

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.

Today’s column involves a lawyer suspended for 4 months by the Wisconsin Supreme Court.  The order was reported by the ABA Journal, the Legal Profession Blog, and the Milwaukee Journal Sentinel.

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:

  • Supreme Court:  We’re going to get right to the point.  It’s come to our attention that you smuggled two toothbrushes and some red pepper to a client who was in jail.
  • Lawyer:  Who said that?
  • Supreme Court:  The guards found the toothbrushes and red pepper inside a legal file that was in a bag your brought to the client.  In jail, toothbrushes can be converted in shanks & red pepper made into pepper spray.
  • Supreme Court: It has also come to our attention that you utterly failed to communicate with a different client.
  • Lawyer:  Who said that?
  • Supreme Court: The client did.
  • Supreme Court: And, finally, it has come to our attention that at the hearing on your failure to communicate with the client, you argued that the client called your office phone instead of your cell phone and, in any event, that you had regularly e-mailed him.
  • Lawyer:  Yes.
  • Supreme Court: He didn’t have an e-mail account.
  • Lawyer: Was all of this wrong? Should I have not done any of it? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started practicing 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 this stuff all the time.
  • Supreme Court:  4 month suspension.
  • Lawyer:  Well you didn’t have to say it like that.

costanza

 

Was That Wrong?

It’s been a while.

Was That Wrong? is a semi-regular column in which I focus on 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.

For example, our most recent discussion of the the perils of representing BOTH plaintiff and defendant while sleeping with defendant.

Today, and as reported by the ABA Journal, The Indiana Lawyer, and NMI.com, we have the story of an Indiana prosecutor who has been suspended for 4 years for listening in on conversations between murder suspects and their lawyers.  The Indiana Supreme Court’s order is here.

Hint: it’s never a good sign for a lawyer when the Supreme Court’s very first statement in discussing the appropriate sanction is:

“There is, quite thankfully, scant precedent in our disciplinary annals for misconduct such as this.”

This 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.

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:

  • Supreme Court: We’re going to get right to the point. It has come to our attention that, as a criminal prosecutor, you used technology to listen in on privileged conversations between suspects and their lawyers.  Is that correct?
  • Lawyer:  Who said that?
  • Supreme Court:  You did.  So did police chief who tried to tell you it was wrong.
  • 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 practicing 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.
  • Supreme Court:  4 year suspension.
  • Lawyer:  Well you didn’t have to say it like that.

*********************************************************************************

Here are the previous entries in Was That Wrong?

costanza