George Costanza

Was that Wrong? Fabricating evidence in response to a disciplinary investigation into your involvement in a scheme to sell worthless securities.

Michael

Was That Wrong? is a semi-regular column that features stories of the absurd & outrageous from the world of legal ethics and attorney discipline. My aim is to highlight misconduct that I hope lawyers will instinctively avoid without needing me to convene a continuing legal education seminar that cautions them 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, which leads to the following exchange:

  • 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.

Last week, Info News Canada reported that the Law Society of British Columbia (LSBC) disbarred a lawyer for being “ungovernable.”  In September, an LSBC hearing panel issued this decision in which it concluded that the lawyer submitted false evidence in response to an investigation into the lawyer’s participating in a fraud scheme involving the sale of worthless Chinese bonds. According to the decision, the lawyer did not attend the disciplinary hearing but provided an affidavit that:

  • “attached as exhibits what appeared to be internet searches and webpages from actual law firms in Singapore that purported to advertise ‘Pay Master’ services where historical Chinese bonds could be redeemed for money. The Respondent represented in the Affidavit that Pay Master services were actual services at those law firms and made derogatory comments about the Law Society investigation. However, the exhibited pages referencing Pay Master services had been fabricated and added to printouts of actual Singaporean law firm websites. The Singaporean law firms confirmed that the Pay Master sections were fabrications that had never been part of the firms’ websites and that they did not offer any such services.”

Unsurprisingly, the LSBC panel concluded that:

  • “The only reasonable inference from the Affidavit, which the Respondent personally affirmed four days before the hearing, is that the Respondent purposely attached false, misleading and fabricated statements as evidence at the hearing in an effort to deceive the Law Society hearing panel.”

Throughout the investigation & prosecution, and as he had done in prior disciplinary investigations, the lawyer failed to cooperate with the disciplinary office. Things didn’t change following the decision, as the lawyer did not participate in the sanction phase of the process. As such, last month’s final sanction order was considered and imposed without the lawyer’s input.

In British Columbia, disbarment can follow a conclusion that a lawyer is “ungovernable.”  According to the sanction order:

  • “A lawyer is ungovernable who shows wanton disregard and disrespect for the Law Society’s regulatory processes or demonstrates a consistent unwillingness to comply with the Act, Rules, Code of Professional Conduct for British Columbia or a lawyer’s professional obligations including their obligations to the Law Society.”

Citing the lawyer’s history of failing to cooperate with disciplinary authorities, the LSBC deemed him “ungovernable” and disbarred him.  It added that given the underlying misconduct, he’d have been disbarred even if he hadn’t been found to be ungovernable.

I really like the word “ungovernable.” It makes me chuckle each time I read it.  Probably because The First Brother and I have long found amusement imagining how someone we know might have behaved as a child.  We find it very likely that this person’s parents often found the person difficult to manage.

In any event, here’s how I envision the screen adaptation of the tale of the British Columbia lawyer:

  • Court: We’re going to get right to the point. It has come to our attention that you have a history of not cooperating with disciplinary investigations and, most recently, that you fabricated and submitted false evidence in response to an investigation into your involvement with a fraud scheme.
  • Lawyer: Who said that?
  • Court:  We checked with the law firms that you claimed offered services that made your scheme legit. They confirmed that you had altered their websites and that they never offered the services.
  • 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’ve worked in a lot of offices and I tell you people do that all the time.
  • Court: You are disbarred for being ungovernable. And even if you were governable, we’d disbar you anyway. 
  • Lawyer: Well, you didn’t have to say it like that.

As always, let’s be careful out there.

Prior Was That Wrong? Entries:

Was That Wrong? Trying to mislead disciplinary authorities into believing that you had died.

Michael 3 Comments

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

WTW? is inspired by the famed “Red Dot” episode of Seinfeld. In the episode, George Costanza has intercourse in his office.  George’s boss finds out, which leads to the following exchange:

  • 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 WTW? entry comes via an article that Reuters published last week. The headline says it all: Lawyer disbarred after email faking death to Calif. attorney regulators.  Here’s the back story.

In March 2021, disciplinary prosecutors charged the lawyer with failing to disclose to the bar that he’d been convicted of a crime. The lawyer did not appear for the subsequent disciplinary hearing. As a result, default judgment was entered against the lawyer.

The lawyer’s first name is “Donald.”  Before a sanctions hearing could be held, a disciplinary prosecutor received an email from the same account that the prosecutor had previously used to communicate with the lawyer. The email stated:

  • “I saw this and don’t know what it is.  Donald passed months ago.”

The disciplinary prosecutor assigned an investigator to verify Donald’s passing. It didn’t take long for the investigator to determine that Donald was very much alive. Unsurprisingly, the discovery caused the disciplinary office to include the email with a petition to disbar Donald. The California Supreme Court granted the petition.

Now, some might argue that this incident doesn’t qualify for WTW?  I concede that Donald was not disbarred for trying to mislead disciplinary authorities into believing that he had died. Indeed, it appears that he was well down the path to disbarment by the time the email was sent.

However, I can easily imagine a Seinfeld plot in which Costanza decides to fake his own death. Further, the larger point remains: we don’t need a CLE to raise awareness that doing so is not an appropriate response to a disciplinary investigation. Hence this latest induction into the Hall of WTW?

Here’s how I envision the screen adaptation:

  • Court: We’re going to get right to the point. It has come to our attention that after you failed to appear for a disciplinary hearing, you tried to dupe disciplinary authorities into believing that you had died.
  • Lawyer: Who said that?
  • Court:  You sent the disciplinary prosecutor an email stating that you had “passed” but then answered the door and identified yourself when a bar investigator followed up.
  • 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’ve worked in a lot of offices and I tell you people do that all the time.
  • Court: Disbarred.
  • Lawyer: Well, you didn’t have to say it like that.

As always, let’s be careful out there.

Prior WTW? Entries:

Was that Wrong? Tomfoolery and a career marked by a consistent inability to comply with the ethics rules.

Michael

It’s rare that a court appearance results in a transcript that, when presented without indicia of being an official record of a judicial proceeding, might pass for comedy.  Whether an Abbot & Costello routine of yesteryear, or a Charlie-scene in the most recent episode of It’s Always Sunny in Philadelphia.

Today’s story brings us one of those rare moments.

But first . . .

. . . 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, because 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.

This morning, I stumbled across an article that ran in the Baltimore Sun earlier this month.  As bar counsel, a basketball fan, and a lawyer who appreciates court opinions that cite to pop culture, the headline caught my eye:

Reflexively, I clicked.

As a basketball fan who went to law school in D.C., I’ve often wondered what happened to the rabid Washington Bullets fan whose incessant heckling of visiting teams secured him some level of fame.  I now have my answer.

In this opinion, the Maryland Court of Appeals disbarred him.

The opinion and the Sun article recount the story far better than I’ll be able to.  The twists, turns, and continual “it can’t get any crazier . . . oh, wait, it just got crazier” are well worth the read.  Still, a few thoughts.

I’ve read my fair share of disciplinary opinions.  It’s not uncommon to want to skip to the end to learn the result.  The Maryland court immediately quashed any interest in missing even a single sentence with this opening line:

  • “While a missed court date by an over-scheduled attorney who relies on office staff to meet the demands of a busy schedule or a good-faith fumble in the filing of a continuance motion would not ordinarily result in disbarment, the circumstances of [the lawyer’s] cases are far from typical.”

Interest piqued, I continued reading.

As I did, I noted statements that aren’t common in disciplinary opinions.  For instance, the court’s observation that the lawyer’s “lengthy disciplinary history since his admission may be unique in the annals of the bar.”  And the court’s remark that the lawyer, over the course of a lengthy career, “may have the unique distinction of having violated three iterations of the rules of professional conduct.”  By then, which was only page 3, I knew we had a potential Was that Wrong? on our hands.

Anyhow, after the court laid out the lawyer’s significant disciplinary history, it turned to the most recent charges.  Here’s what happened.

The lawyer was double-booked in two different courts.  So, the lawyer asked his assistant to file a motion to continue one of the scheduled cases.  The assistant – who was disbarred himself in 2013 – prepared the motion, signed the lawyer’s name, and filed it.  The motion included a statement that opposing counsel, Mr. Palisano, had no objection.  Alas, Attorney Palisano had left opposing counsel’s office months prior.

Understandably, the trial judge wanted an explanation. Eventually, the lawyer appeared. The ensuing exchange is what reminds me of a comedy routine.  It has all the hallmarks of the confusion that Charlie causes on Sunny. It also resulted in the lawyer being charged with making a false statement to the trial court.  Here’s how I envision the screenplay:

*********

Court: We’re going to get right to the point. It has come to our attention that you simply cannot comply with the ethics rules.  We’ve sanctioned you numerous times over the years and now this:  you weren’t exactly candid with the trial court when it asked about the motion that your disbarred assistant filed after signing it as you.

Lawyer: Who said that?

Court:  Well, you admitted to the trial court that you hadn’t signed the motion, but only after this exchange:

  •  TRIAL JUDGE: Sir we received your written motion by consent to continue this matter this morning. Is that right?
  • LAWYER: I believe – that’s what my office manager told me, Judge. He is now in the hospital.
  • TRIAL JUDGE: But this motion is signed by you, Sir.
  • LAWYER: Yes, it is.
  • TRIAL JUDGE: You’re counsel of record in this case?
  • LAWYER: No question about it.
  • TRIAL JUDGE: Correct?
  • LAWYER: Absolutely.
  • TRIAL JUDGE: You signed – you signed this motion though, Sir, instead, that’s what – is this your signature?
  • LAWYER: My name is on it, but my officer manager who’s been my office manager for 10 years.
  • TRIAL JUDGE: Sir?
  • LAWYER: Yes.
  • TRIAL JUDGE: Are you representing to this Court that you did not sign this motion, you had – you authorized someone who is not a member of the bar to sign this motion?
  • LAWYER: I’m saying I signed it, but I didn’t know that – I didn’t talk to Mr. Palisano, I didn’t know that Mr. Palisano’s name was in it, and . . .
  • TRIAL JUDGE: How could you not know if you’re signing it?
  • LAWYER: Mr. Palisano’s name was not in it when I signed it.
  • TRIAL JUDGE: When you signed it?
  • LAWYER: That’s right.
  • TRIAL JUDGE: So, you’re saying this document was altered after you signed it, Sir?
  • LAWYER: No, I’m not saying that. I’m just saying I did not sign anything that had Mr. Palisano’s name in it.
  • TRIAL JUDGE: So, are you saying that this is not your signature on the motion?
  • LAWYER: May I see it again?[1]

 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, because I’ve worked in a lot of offices and I tell you people do that all the time.

Court: Disbarred.

Lawyer: Well, you didn’t have to say it like that.

***********

As always, be careful out there.[2]

costanza

[1] In real life, on the day after the hearing on the motion to continue, the lawyer’s assistant sent a letter to the trial court apologizing for making a mistake when using an old “template” motion.  He stated that he filed it in a rush, having just left the hospital against doctor’s orders after arriving for a routine exam only to be told that he required an emergency amputation. You can’t make this stuff up.

[2] The Shakespeare quote?  Referring to the lawyer’s prior disciplinary history and its relevance to the decision to disbar, the Maryland court wrote “It has been said that ‘what’s past is prologue,’” a line from Act II, scene 1 of The Tempest.

Prior Was that Wrong? posts:

Prior Entries:

Conspiring to defraud the U.S. Government. Was that wrong?

Michael

This one left me stunned.  Even as the author of this column.

As most readers know, I’m a big fan of pub trivia.  The MVP on any pub quiz team is the person who can nail the “music round.”  A great tidbit of music trivia is that 10cc sang The Things We Do For Love. The relevant line today:

“You lay your bets and then you pay the price,

The things we do for love.”

First, and by way of background, 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.

Now, onto today’s story.

I’m fairly confident that none of our judges has a spouse who will end up charged with federal crimes.

I’m as confident that those who do understand the risks of tampering with the government’s witnesses.

Finally, I’m even more confident that those who are removed from the bench for witness tampering in a spouse’s criminal cases will not later engage in an elaborate scheme to convince the Federal Bureau of Prisons that their convicted spouse is an alcoholic when, in fact, they know that their spouse is not.

This one also left me feeling naïve.

Who knew there were businesses that, for a fee, would help convicted persons learn to lie their way into prison programming that would help them gain early release?

The story comes via Bloomberg Law (sub. req.) and the Legal Profession Blog.  The relevant documents from the disciplinary case are here.  I urge you to scroll to the “agreed upon statement of facts.” It begins on page 18 of the PDF.

Anyhow, here’s how I envision the Was That Wrong? adaptation:

  • Court: We’re going to get right to the point. It has come to our attention that you and others conspired to get your wife into prison programming for which you knew she did not qualify?
  • Lawyer: Who said that?
  • Court: You did. When you pled guilty to conspiring to defraud the U.S. Government.
  • 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’ve worked in a lot of offices and I tell you people do that all the time.
  • Court: Disbarred.
  • Lawyer: Well, you didn’t have to say it like that.

Lay your bets indeed.

costanza

Prior Entries:

Was That Wrong? Being shorted by drug buyers then claiming they robbed you.

Michael 1 Comment

As many readers know, I used to be a high-school basketball coach. One particularly memorable season, two of my players decided to rob a marijuana dealer. Their theory: the dealer wouldn’t report the crime.  Alas, he did and, as a result, the players missed the rest of the season.

To be clear: each player dealt with the consequences, learned his lesson, and is now a stand-up member of the community.  I consider each to be a fully vested member of the “My Former Players Club,” a club in which membership includes me doing whatever I can for you.

Back when the incident went down, never for one instant did I think that I’d encounter similar misconduct by a lawyer.  Well, R.I.P Sean Connery, and never say never.

With all that said, welcome to another edition of Was That Wrong?!

 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 WTW? entry comes courtesy of David Kluft. Here’s the first line of David’s Twitter profile:

“Attorney. Bald.  Asst Bar Counsel @ Mass. Board of Bar Overseers.”

We are everywhere in lawyer regulation!!  Yesterday, David tweeted:

https://twitter.com/dkluft/status/1324374145338089475?s=21

My interest piqued, I did a little digging and found this opinion from the North Dakota Supreme Court.

As it turns out, the lawyer did not appear or participate in the trial or appeal. I’m left to wonder whether the lawyer did not know about the Costanza Defense or, in a last-gasp demonstration of competence, concluded that it’d be fruitless.  Here’s how it might have gone:

  • North Dakota Supreme Court: We’re going to get right to the point. It has come to our attention that, after they shorted you in the transaction, you falsely accused people to whom you’d sold marijuana of robbing you at gunpoint?
  • Lawyer: Who said that?
  • Court: You admitted it the very next day.
  • 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’ve worked in a lot of offices and I tell you people do that all the time.
  • Court: Disbarred!
  • Lawyer: Well you didn’t have to say it like that.

Other Was That Wrong? Posts

Don’t Be This Guy.

Michael 3 Comments

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

 

 

 

 

Five for Friday #134

Michael 1 Comment

Welcome to Friday!

Last week’s post drained the creative juices and “134” isn’t replenishing them.  So, I’m tempted to pull a Costanza and disband the quiz.

I'M Out George Costanza GIF

 

Yet, I trudge on.

With not much springing to mind as fodder for this week’s opening, I turned to the date & decided to look for inspiration in the events of October 12s past.

Inspiration I found!  How I’ve never heard of Joshua Abraham Norton until today is a scathing indictment of public high schools, public universities, and society at large.

Background, roundabout 1853, Norton lived in San Francisco. He had a lot of money and wanted more. At the time, rice was in short supply & high demand.  As such, prices skyrocketed.

Norton learned that a ship was due to arrive with 200,000 pounds of Peruvian rice.  Hoping to corner the market, Norton bought the entire load.

Unfortunately for him, a bunch of other ships full of rice arrived shortly thereafter.  The replenished supply not only drove down the price of rice, it drove Norton into financial ruin.

Fear not.  A little financial ruin didn’t keep Norton down.

After wrangling over the doomed rice deal all the way to the California Supreme Court, Norton got his groove back.  Bankruptcy was but his first declaration.  To wit, in September 1859:

  • “At the peremtory request of a large majority of the citizens of these United States, I, Joshua Norton, formerly of Algoa Bay, Cape of Good Hope, and now for the past nine years and ten months of San Francisco, California, declare and proclaim myself Emperor of these U.S., and in virtue of the authority thereby in me vested, do hereby order and direct the representatives of the different States of the Union to assemble in the Musical Hall of this city on the 1st day of February next, then and there to make such alterations in the existing laws of the Union as may ameliorate the evils under which the country is laboring, and thereby cause confidence to exist, both at home and abroad, in our stability and integrity.”

That’s right – he declared himself Emperor of the United States.

Then, on October 12, 1859, in one of his first acts as Emperor, Norton proclaimed:

  • “It is represented to us that the universal suffrage, as now existing through the Union, is abused; that fraud and corruption prevent a fair and proper expression of the public voice; that open violation of the laws are constantly occurring, caused by mobs, parties, factions and undue influence of political sects; that the citizen has not that protection of person and property which he is entitled to by paying his pro rata of the expense of Government–in consequence of which, WE do hereby abolish Congress, and it is therefore abolished; and WE order and desire the representatives of all parties interested to appear at the Musical Hall of this city on the first of February next, and then and there take the most effective steps to remedy the evil complained of.”

That’s right.  He abolished Congress!  Clearly a visionary. Anyhow, from thereon, Emperor Norton reigned as one of San Francisco’s more colorful characters.

My favorite Emperor Norton story is this 1872 proclamation:

  • “Whoever after due and proper warning shall be heard to utter the abominable word ‘Frisco,’ which has no linguistic or other warrant, shall be deemed guilty of a High Misdemeanor, and shall pay into the Imperial Treasury as penalty the sum of twenty-five dollars.”

Why my favorite? Because I was born & raised in South Burlington. For many years, I coached at South Burlington High School.  I still live in SB.

I do not, and never have, lived in “SoBu.” Stop calling it that!

I am beyond tempted to substitute “SoBu” for “Frisco” and issue the proclamation anew.

For more on Emperor Norton, check out these posts from History.Com, SFist, and The San Francisco Chronicle. And, if you’re ever on the Bay Bridge or taking BART thru the tunnel that connects San Franscisco to Oakland, remember who proclaimed each should happen.

I don’t like failing to connect the week’s number to the story that leads into the quiz.  But, today I don’t mind.  Had “134” inspired something, I’d never have researched “today in history” and, more importantly, I’d never have learned of Emperor Norton.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception – but one that is loosely enforced – #5 (“loosely” = “aspirational”)
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

What is this the definition of?

  • an agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.

Question 2

By rule, of the following, which must a financial institution  agree to do what in order to be approved as a depository for pooled interest-bearing trust accounts?

  • A.  block ACH transfers to and from such accounts.
  • B.  notify disciplinary counsel whenever such accounts are overdrawn.
  • C.  not issue debit cards that are tied to such accounts
  • D.  All of the above.

Question 3

Lawyer represents Organization.   Can Lawyer also represent one of Organization’s directors?

  • A. Yes, subject to Rule 1.7, which is the rule on conflicts.
  • B. No, the rules prohibit dual representation of organization and its directors/officers/constituents.

Question 4

Some might argue that “paltering” violates the rule(s) on:

  • A.   honesty
  • B.   conflicts
  • C.   safekeeping client property
  • D.  competence & diligence

Question 5

The ABA recently updated its list of the 25 Greatest Legal Movies of All-Time.  Two of the Top 3 are set in the same state.

What state?

email answers to: michael.kennedy@vermont.gov

 

 

 

Was That Wrong? Cannabis (In)competence

Michael 2 Comments

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.