I do plan to get a substantive post up this week and get back on a regular posting schedule soon.  Just wanted you all to know the blog has not been abandoned.

As a welcome back treat, allow me to share a couple of blawg items I found interestting.

First, I just ran across a blog called “EvilEsq,” which I discovered when its author started following me on Twitter.  Here’s an image from it, which, along with the title, is probably enough to tell you that you don’t want your name to show up there:

Second, the blog of Fresno criminal defense lawyer Rick Horowitz has one of the best subtitles ever, at least if you’re an appellate guy:  Probable Cause: The Legal Blog with the Really Low Standard of Review.

Back to work, everyone.

Of course, your appendix on appeal does have a function (though I can understand how the temptation to write that line was irresistible to Professor Childress).  But the larger point remains: proof your appendix as carefully as you do your brief.

You represent the defendant in a lawsuit.  You don’t have time to handle his case — indeed, you admit as much on the record — and the court imposes terminating sanctions against your client for failing to respond to discovery.  Because of your admission, your client is allowed to obtain new counsel, but new counsel is unsuccessful in getting the sanctions order vacated, and a default judgment of $730,000 is entered against your client, who then promptly sues you for malpractice and, while that suit is pending, appeals the default judgment.  What do you do, besides give notice to your malpractice carrier?

If you’re the defendant’s first attorney in Styles v. Mumbert, case no, H029767 (6th Dist. July 15, 2009), you get the plaintiff in the original case (Styles) to assign her default judgment to you (for some undisclosed consideration), then, represented by another lawyer in your firm, you move the court of appeal to substitute you in as respondent in your former client’s (Mumbert’s) appeal from that judgment.  The court of appeal resists the invitation, concluding the opening paragraph of its opinion thus: ”Finding that the proposed substitution violates multiple rules of Professional Conduct as well as the Business and Professions Code, we will deny the motion.”

The absurdity of the possible outcomes!  The court says it much better than I could:

If we allowed [attorney] Pagkas to substitute himself as respondent, in place of Styles, on appeal Pagkas would have to argue that the default judgment, for which he may be professionally responsible, should be reversed. He would argue that the appeal should fail, so that he could collect on the default judgment. This is directly contrary to Mumbert’s interest. While a reversal here would be to Pagkas’s absolute benefit in the legal malpractice action, reducing any potential damages for professional negligence owed to Mumbert, Pagkas appears to prefer the prospect of collecting the large default judgment from Mumbert. In fact, if the substitution were allowed, it is conceivable that Pagkas could prevail in both the malpractice action and in this appeal, leaving him with huge windfall at the expense of his former client. Pagkas’s disregard for his ongoing fiduciary duties to his former client in favor of his own personal gain is without precedent.

Unsurprisingly, Mumbert asked for sanctions for having to oppose the motion, and got them.  On sanctions:

Pagkas’s actions make a mockery of the Rules of Professional Conduct. We cannot conceive of, and the case law is devoid of, a scenario which could do more violence to the attorney-client relationship and the public trust in the legal system, than what Pagkas and his firm have done and seeks to do.  Despite the well founded opposition to the motion, citing to the relevant Rules of Professional Conduct and supporting case law, Pagkas and his attorney continue to urge that we grant the motion without cogent argument or cite to relevant supporting authority. Under these circumstances, sanctions are appropriate.

What of the original plaintiff?

Respondent Delia Styles, having sold her interest in this action, and having failed to file a respondent’s brief, is ordered to show cause within 15 days from the date of this opinion why her default should not be entered and the appeal proceed without opposition.

I think Ben Shatz might have had to create a new category just for this case if it had been decided before Whittier Law Review published his study of appellate sanctions.

UPDATE (7/16/08): Tulane University Law School professor Alan Childress at Legal Profession Blog offers his thoughts, as well as a clever follow-up post.

In 1982, Alton Logan was convicted of first degree murder based upon being the trigger man in a robbery gone wrong at a Chicagoland McDonald’s. What the jury who convicted Logan did not hear was that another man, Andrew Wilson, confessed to the crime Logan allegedly committed. The problem was that Wilson confessed to his attorneys, public defenders Dale Coventry and Jamie Kunz, who confirmed with the relevant authorities that they were bound by the rules of professional responsibility not to disclose their client’s confession. Coventry and Kunz did prepare an affidavit detailing Wilson’s guilt and in fact planned to come forward if Logan were given the death penalty. Ironically, two holdouts on the jury seemingly spared Logan’s life by voting against capital punishment, but in fact dealt him the same fate that would befall the affidavit, being locked up (Logan in a prison cell; the affidavit in a lock box). Pained by pangs of guilt, the public defenders convinced Wilson to allow them to reveal his guilt after his death, resulting in Logan’s eventual release from prison twenty-six years after he entered.

A tough situation, for sure. I’d be curious to know if Professor Miller’s essay makes any converts.

The complainant alleged misconduct regarding both judges with respect to discovery rulings and their decisions to continue with the case following his filing of a notice of appeal. Chief Judge Kozinski’s order characterizes these charges as challenges to the rulings themselves. Complainant had his chance to appeal, and did so. He lost. He can’t collaterally attack the rulings in the guise of a judicial misconduct complaint.

Complainant also alleged that the judges “fixed” the civil case to cover up corruption in the state judicial system. But the allegations related to the complainant’s suspension from practice are where the conspiracy theory really started to fly.

Complainant was suspended from practice by the supreme court of his home state, which prompted the district judge to order the complainant to show cause why he should not also be suspended from practice before the district court. Complainant claimed that the district judge lied about the misfiling of the complainant’s response to the OSC, refused to open a docket number for the proceedings, falsified the docket once open, hid evidence, intercepted complainant’s mailings of his state court records sent to other federal judges in the district, tore and returned documents to plaintiff in order to intimidate him, and “framed” complainant and “fixed” complainant’s suspension from practice before the district court in retaliation for complainant’s exposure of corruption in the state judicial system. Finally, he claimed that the magistrate engaged in misconduct for refusing to report the district judge.

That’s quite a story. The order disposes of the charges in less then seven pages, concluding that none of them are supported by objectively verifiable evidence sufficient to raise an inference that misconduct occurred.

But there does appear to be some misconduct here: by the complainant. The order chastises him thus:

Complainant is an attorney, so he should know better than to file such an obviously frivolous and abusive complaint. He has wasted considerable judicial resources for no purpose whatsoever. The standards for filing a complaint of judicial misconduct have been established for decades, [citation], and complainant most likely knew, and certainly should have known, that the complaint he filed comes nowhere near stating a viable claim of judicial misconduct. [Citations.]

He is ordered to show cause why he should not be sanctioned. Good luck.

In two cases with a local angle – both originating in neighboring Santa Barbara County and thus reaching the Supreme Court through our local Court of Appeal (Second District, Division Six) – the Supreme Court reaffirms that recusal motion determinations are reviewed only for abuse of discretion.  It rejects the justifications offered by the Court of appeal for heightened review in cases of “first impression,” capital cases, or the reviewing court’s “independent interest” in “policing conflicts of interest and addressing potential errors at the earliest opportunity”

In Haraguchi v. Superior Court (People), case no. S148207 (May 12, 2008), the Santa Barbara County deputy district attorney assigned to prosecute the accused rapist of an intoxicated victim published a novel (Intoxicating Agent) just a few months prior to the start of the trial, the heroine of which was – surprise! – a Santa Barbara County deputy district attorney prosecuting an accused rapist of an intoxicated victim.   In Hollywood v. Superior Court (People), case no. S147954 (May 12, 2008), the Santa Barbara deputy district attorney, while defendant Jesse James Hollywood (pictured) was still a fugitive, cooperated with some filmmakers making the movie Alpha Dog, about the kidnapping and murder being prosecuted in the case, by providing documents and serving as a consultant on the film.  He did so (according to him) “in the hope that the publicity would result in Hollywood’s apprehension.”

In each case, the defendant moved pursuant to Penal Code section 1424 to recuse not just the assigned deputy DA, but the entire Santa Barbara County District Attorney’s office.  In each case, the trial court denied the motion on the ground that no conflict warranting recusal was present. In each case, the Court of Appeal reversed, and in doing so invoked “independent review” of the ruling instead of the usual review for abuse of discretion.  And finally, in each case, the Supreme Court reverses the Court of Appeal and reaffirms that recusal motion determinations are reviewed only for abuse of discretion.

In Haraguchi, the Court of Appeal justified departing from the normal standard of review on the ground that the “novel circumstances” of the case made it one of first impression and because the court had an independent interest in policing conflicts of interest and correcting errors at the earliest possible stage of the proceedings,  In Hollywood, the court offered the additional justification that the death penalty potential of the case justified heightened review.  The Supreme Court makes quick work of all three proffered rationale.

It rejects the “first impression” justification because it “offers no clear boundaries”:

With respect to this case being a matter of first impression, we note that virtually every case is, to a greater or lesser degree, a matter of first impression.  The difference between each new set of facts and those that previously have been ruled upon may be small and immaterial or large and momentous.  Where on the continuum a new set of facts lies is to some extent in the eye of the beholder; a court of a mind to reverse may always point to those elements of a case that it views as distinguishing and on that basis assert the issue is a matter of first impression.

It rejects the “independent interest” rationale because the interest is not furthered by independent review:

The Court of Appeal’s concerns do not, however, support a change in the standard of review.  The assertion that pretrial review should be de novo rests on the unspoken assumption that independent review will reduce the rate of error — that appellate courts given a free hand to weigh the evidence and disregard trial court findings will reverse erroneous rulings and eliminate error more often than they reverse correct rulings and thereby introduce error.  That assumption is unfounded.  We review rulings on motions to recuse only for abuse of discretion precisely because trial courts are in a better position than appellate courts to assess witness credibility, make findings of fact, and evaluate the consequences of a potential conflict in light of the entirety of a case, a case they inevitably will be more familiar with than the appellate courts that may subsequently encounter the case in the context of a few briefs, a few minutes of oral argument, and a cold and often limited record.

In Hollywood, it rejects the notion that the potential for the death penalty justifies departure from the “abuse of discretion” standard of review, because that rationale likewise rests on an unfounded proposition that de novo review will reduce the frequency of error:

The punishment at issue in capital cases makes it all the more important to ensure fairness and arrive at accurate outcomes.  But nothing in the Court of Appeal’s proposed de novo standard of review promotes those twin goals.  For recusal motions in noncapital cases, we give trial courts primacy in fact finding and in assessing whether and how great a conflict exists not because the stakes are less and errors more conscionable, but because our trial courts are genuinely in the best position “to assess witness credibility, make findings of fact, and evaluate the consequences of a potential conflict in light of the entirety of a case, a case they inevitably will be more familiar with than the appellate courts that may subsequently encounter the case in the context of a few briefs, a few minutes of oral argument, and a cold and often limited record.” (Haraguchi v. Superior Court, supra, __ Cal.4th at p. ___ [at p. 7].)  Nothing about these circumstances suggests to us that de novo review of recusal motions in capital cases would increase either the accuracy or the fairness of these proceedings.  The same point answers the Court of Appeal’s concern about reducing the likelihood of belated reversal later on in the lengthy capital appeal process; we have no basis on which to conclude independent review would reduce the risk of error.  We therefore conclude that in capital cases, as in all others, the trial courts’ rulings should be reviewed only for an abuse of discretion.

Applying the abuse of discretion standard of review, the Supreme Court finds that neither trial court erred in finding the absence of a conflict requiring recusal.

UPDATE (5/13/08): I’m guessing I’m the only guy geeky enough to focus on the standard of review employed in these high-profile cases.  For less geeky coverage, see these reports from the AP, WSJ.com Law Blog, New York Times, and Los Angeles Times,

The availability of designated justices may make this seem like a moot consideration for our own Supreme Court, but keep in mind that the California Supreme Court dismissed a case last year because four of the seven justices had developed conflicts (through corporate mergers occurring after the grant of review). Would selling off the stock have been adequate to remove the conflicts?

More on the topic generally from Professor Bainbridge at BusinessAssociationsBlog.com.

A front page article in last Thursday’s Wall Street Journal documents how badly some state bars lack a sense of humor (subscription required — if that link doesn’t work, go to this post at the WSJ.com Law Blog, which appears to allow non-subscribers to link to the article). Take the opening few paragraphs:

Syracuse, N.Y., attorney James Alexander ran a TV spot for his firm showing lawyers offering counsel to space aliens who had crashed their UFO. He also did one with lawyers towering like giants over Syracuse.

Not amused, New York court officials said the ads contained “patent falsities.”

“It cannot be denied,” wrote assistant New York Attorney General Patrick MacRae in a court filing, “that there is little likelihood that [the lawyers] were retained by aliens, have the ability to leap tall buildings in a single bound, or have stomped around downtown Syracuse, Godzilla-style.”

Things aren’t any better in Florida:

[The Florida State Bar] filed a complaint in 2004 against Fort Lauderdale personal-injury attorney Marc Andrew Chandler over ads [pictured left] that featured a pit bull wearing a spiked collar. The Florida Supreme Court sided with the bar in 2005, ruling that pit bulls conjure up images of viciousness. “Were we to approve,” the court wrote, “images of sharks, wolves, crocodiles, and piranhas could follow.”

What’s their point? Why not find that their appearance is likewise offensive? A lawyer in a muscle shirt?

The ads are funny.  The crackdowns, not.

Another thing definitely not funny was something I ran across a year or more ago, before I started this blog, about a state (I could have sworn it was New York or Florida, but I could be wrong) that requires lawyer ads to be approved by the bar before the lawyer can run them. Bad enough. But the state bar was proposing that blogs be counted as advertising. And not just the blog itself, but each post on the blog would have been considered a new advertisement requiring approval before it could be posted. I’m pretty sure that proposal died a quick death.

Hat tip: How Appealing.

In a very detailed post entitled The Pro Bono Road to Riches! last October, I discussed the issue in the context of a California case, in which the dictum of the Court of Appeal seemed to indicate a predisposition to awarding fees in pro bono cases. In that case, the trial court trimmed the fee request by 50% right off the top because it deemed the engagement “mildly pro bono,” and ultimately awarded less than one third of the amount requested. The Court of Appeal’s dictum leaves little doubt that the firm left plenty of money on the table by not cross-appealing to contest the amount awarded. (My earlier post includes several links to information about the Seattle Schools case, by the way.)

My post caught the attention of the Overlawyered blog, which sent me a ton of traffic when they linked my post. In fact, the traffic from Overlawyered was responsible for my highest traffic ever for a single day, and accounts for the anomalous bump in traffic during October that you see in the chart to the right. Clearly, this is a hot issue. So I also followed it up with an article in our local bar publication, CITATIONS.

I continue to believe that a large part of the controversy in the Seattle Schools case is driven by the nature of the party from whom fees are sought: a school district. Obviously, many members of the public are going to think that the district has better uses for the money. (Of course, there were probably a lot of people who said the same thing about the money spent by the district in fighting the case.) I wonder, though, if the people who are outraged at the firm seeking fees from the school district would have been just as angry with the firm in the case I profiled, which successfully represented more than 30 tenants seeking damages on various causes of action arising from the landlord’s refusal to let the tenants return to their units after they were evacuated from an unsafe building by the city. That firm, too, was a BigLaw heavy-hitter, but I’m sure the landlord of an unsafe building is going to get far less sympathy from the public than a school district.

One commentator in the NLJ article raises a point I made to a reporter who called me about my post: Is it right for well-heeled firms who often burnish their images by conspicuously accepting pro bono engagements to then seek fees for those engagements? This is an especially valid question if the firm announces the engagement with some fanfare but keeps the fee request rather quiet. It makes one wonder whether anyone honored for their pro bono work has actually been collecting fees for part of it.

Actually, that wouldn’t bother me, as long as fees were disclosed. A semi-pro bono case — in which an attorney agrees to an engagement for which he is paid only if he can recover fees under a contractual or statutory provision — is really just another form of contingency fee case, with all of the same risks.

Hat tip to How Appealing for the link to the National Law Journal article.

The main page includes links to the governing rules,  a page listing the orders, and a downloadable complaint form.

Whether you think that “mandatory volunteering” is a fair trade-off for the privilege of practicing law or you prefer to think of this kind of arrangement as involuntary servitude, you should check out the posts about this case at California Appellate Report and Decision of the Day. 

The issues covered by the amendments include handling cases with self-represented litigants, judicial disclosure, character reference letters, self-reporting by judges after being charged with or convicted of certain crimes, and misusing the prestige of the office by commissioners or referees.

The updated code is available as a downloadable PDF. Click here for the PDF.  The changes do not take effect until January 1, 2008.

The Guenthers were limited partners in two limited partnerships (“the CORF entities”). When the CORF entities were sued, the Guenthers and other owners sought counsel regarding their potential personal liability for the liabilities of the CORF entities. On that much, the parties agreed.

But the Guenthers claimed that the CORF entities were the clients, and that, as limited partners, they were not liable for fees. The attorneys argued the Guenthers were liable because: (1) the owners, not the CORF entities, were the clients so the fees were attributable to representing the Guenthers personally, and (2) even if the fees were for representation of the CORF entities, the Guenthers were liable because the attorneys reasonably believed the Guenthers were general partners.

After a one-day bench trial, the district court entered judgment in favor of the attorneys on claims for contract and action on account, even though it found that the attorneys represented the CORF entities, on the ground that the attorneys reasonably believed the Guenthers were general partners. It did not reach the unjust enrichment claim.

The Ninth reverses. Because advice regarding the personal exposure of the owners was a subject of the engagement, the attorneys had a duty to review the organic documents of the CORF entities to determine if any limited partners had exposed themselves to liability by acting as a general partner. Since those documents identified the Guenthers as limited partners, that information was imputed to the attorneys. Thus, the attorneys could not reasonably believe the Guenthers were general partners.

The attorneys don’t appear to be entirely out of luck. The Ninth remands for consideration of the unjust enrichment claim because the Guenthers are liable to the extent they were billed for services that benefitted them.

UPDATE (10/17/07):   For coverage of this and ethical/professional legal issues generally, the Legal Profession Blog is a good resource.

Technorati Tags: legal malpractice

I always thought it should be, and now I have the decision in Zurich American Ins. Co. v. Superior Court (Watts Industries, Inc.), case no. B194793 (2d Dist. Oct. 11, 2007) to back me up.

The court holds that the trial court construed the attorney-client privilege too narrowly by exempting from discovery only those documents that “contain actual copies of letters or e-mail communications from outside counsel, or documents that have been created by counsel, or received by counsel, or that contain direct communications from counsel.” Evidence Code section 952 defines confidential communications between lawyer and client much more broadly. Under section 952:

[C]onfidential communications include information transmitted to persons “to whom disclosure is reasonably necessary for the transmission of the information,” and those to whom disclosure is reasonably necessary for “the accomplishment of the purpose for which the lawyer is consulted.” Section 952 expressly includes legal opinions and advice given by a lawyer within the definition of confidential communication.

Since corporations are unquestionably “persons” who can invoke the privilege, and can only communicate through living individuals:

It follows that in order to implement the advice of lawyers, the advice must be communicated to others within the corporation. It is neither practical nor efficient to require that every corporate employee charged with implementing legal advice given by counsel for the corporation must directly meet with counsel or see verbatim excerpts of the legal advice given. But that is what the approach adopted by the referee and trial court would require in light of the narrow construction of section 952 they adopted.

But before your company gets too crazy telling everybody everything, realize there are limits: “The privilege only protects disclosure of communications, it does not protect disclosure of the underlying facts by those who communicated with the attorney.”

Documents are privileged if they (1) contain legal advice or a discussion of legal advice or strategy and (2) were not disclosed within the corporation to anyone but those identified in section 952, i.e.,

those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.

It first notes the justification for not disclosing reasons for recusals:

Justices have traditionally declined to elaborate on why they’ve stepped aside. One reason: a legitimate concern that revealing the cause for a recusal could empower future litigants to manufacture conflicts — such as hiring the spouse or child of a justice as a lawyer on the case — to force the removal of a justice who appears philosophically hostile to their arguments.

It then argues that the most recent recusals of Justice Roberts and Justice Breyer from a pending securities suit were likely due to their ownership of stock in the parent corporation of a party.  Justice Roberts is since back on the case, likely because he sold his stock.

The editorial argues that since such financial stakes are eventually revealed in the justices’ annual financial disclosure statements, there is no harm in revealing stock ownership as a reason for recusal.  But it never explains how that translates into an argument for disclosing the reasons for all recusals.

Its more convincing point is that the lawyers in the case can generally figure out the reason for the recusal anyway, so why keep the public in the dark?

Thanks to ABA Journal for the link.

Technorati Tags: recusal, SCOTUS

Thus in United States v. Talao, 222 F.3d 1133, 1137 (9th Cir. 2000), the Ninth Circuit held that it had jurisdiction to hear the appeal of an Assistant United States Attorney whom the District Court had found violated rule 2-100 of the California Rules of Professional Conduct. The issue in such cases is whether the order constitutes a “sanction.” In Talao, the court holds that a finding that an attorney violated a governing ethical rule is per se a sanction, and thus the attorney may separately appeal it.

Both posts have lengthy comment threads (Volokh’s is longer), with a great many defenders of the attorney — not for the billing, but for submitting the brief.  Many are also upset (rightfully so, to my mind) with the court’s apparent position that copying a string citation, including parenthetical comments, is plagiarism.

A couple of interesting comments, apparently on this last point, from the Volokh post (with links — gotta watch that attribution!):

From wm13: “What might happen to all those judges who tell counsel to write an order and they will sign it? What about an appellate court which finds a brief convincing and uses some of its phraseology in its opinion?”

From Happyshooter:  “All appellate court opinions around here would be plagiarism under that standard.”

DJR says that if the standards cited by the judge apply, “there are hundreds of judges who will need to start citing the bench memos and draft briefs written by their clerks so as not to intentionally pass off their “creative expressions” and ‘original ideas’ as their own.”

Bruce Hayden (or someone posting as him), who has an eponymous blog raises a question in the Volokh comments of relevance to alternative billing:

But when it comes to the client’s benefit, a plagiarized brief, article, etc. may be advantageous – if the attorney is honest about what he charges his clients.

For example, let us assume that an attorney can write a brief from scratch in ten hours or plagiarize it from someone else’s for two hours of work. I would sugest then that the client is typically better off if his attorney plagiarized AND only charged for the amount of work actually done, in this case two hours of work. So, at $100 an hour, the difference would be the client paying $1000 for the original version or $200 for the plagiarized version.

Of course, the attorney’s temptation is inevitably to charge the client for how much it would have taken to write the article from scratch (in this case $1000), even if it took much less time due to the plagiarism. But that brings us back to honesty…

I find this comment interesting because it is relevant to the rationale behind certain alternatives to the billable hour.  Consider one argument for “value billing” in a manner advantageous to the attorney.  Attorney completes a document for Client A using an hourly billing model that results in a bill of $3000.  When Client B comes into the office needing similar work, Attorney realizes that with only minor modifications, which Attorney can make in an hour or two, the document he did for Client A will meet Client B’s needs.  Realizing this, Attorney agrees to prepare the document for a flat fee of $3000.  Ethical?  After all, if the document is worth $3000 when produced for Client A, then isn’t it worth $3000 when prepared for Client B, even if it only takes an hour or two?

Of course, there are at least two problems with “value billing” the brief in the Iowa bankruptcy case: (1) the attorney isn’t taking advantage of his own prior work; and (2) the brief probably wasn’t of much value, as Volokh commenter Anderson points out: “But, come on, folks — you can’t possibly be zealously representing your client while submitting an article as your ‘brief,’ . . . It’s applying the rule to the facts that wins the case.”

As to copying one’s own work, Volokh commenter Justin claims that a lawyer in the Federal Circuit was sanctioned for that several years ago, but he doesn’t provide a link.  I can’t imagine the lawyer in that case was sanctioned for the copying.  I have to believe it had something to do with the billing.

Thanks to the (new) legal writer for providing the links.

Yesterday, Tom Caso at The Opening Brief posted about Batt v. City and County of San Francisco, case no. A114633 (1st Dist. Sept. 12, 2007), in which he says the court “suggested it was unethical for an attorney to fail to address in your brief cases that, even if not directly on point, ‘clearly are pertinent to any meaningful discussion of the issue.’”  Interestingly, this case is much different from the federal case profiled last week.  Here, the attorney is scolded not for withholding authority, but merely failing to address a controlling authority briefed by the other side.

I don’t agree with the court’s rationale regarding ethics.  The court relies on Rule 5-200 of the Rules of Professional Conduct:

In presenting a matter to a tribunal, a member:

(A) Shall employ, for the purpose of maintaining the causes confided to the member such means only as are consistent with truth;

(B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law;

(C) Shall not intentionally misquote to a tribunal the language of a book, statute, or decision;

(D) Shall not, knowing its invalidity, cite as authority a decision that has been overruled or a statute that has been repealed or declared unconstitutional; and

(E) Shall not assert personal knowledge of the facts at issue, except when testifying as a witness.

Failing to address authorities openly cited by your adversary does not strike me as dishonest, misleading, an artifice, a misquotation, or citation of an invalid authority.  Likewise, I think the court was wrong to cite ABA Model Rule 3.3, which prohibits a lawyer from making a false statement of law or from failing “to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.” (Emphasis added.)

Here, the cases the party ignored were cited by the other party and discussed extensively in the other party’s briefs.  Nobody concealed anything, except in the sense, perhaps, that by not discussing the adverse authority, the attorney was hoping the court would overlook it.

Whatever the ethics, sticking your head in the sand as soon as your opponent cites adverse authority obviously isn’t smart, as Tom notes in greater detail (along with providing some of the court’s ethics rationale) at his post.

It is the responsibility of the Department of Justice and its lawyers to be aware when its positions have been rejected by the court. While it is acceptable to make a rejected argument for purposes of preserving it for en banc or Supreme Court consideration while acknowledging that it has been rejected by the court, it is not acceptable to repeat an argument already rejected without acknowledging the case that rejected it, particularly where it is the Department of Justice itself that was involved in earlier case. Another such repetition of this same argument in this court will be considered sanctionable behavior.

Comedian Steve Martin used to joke that a lot of problems can be solved with two simple words: “I forgot.”  As in “I forgot to pay my taxes” or “I forgot killing someone was against the law.”

“I forgot about that binding case that soundly rejected the position I am advocating” works about as well.

Here’s how the article describes itself in its introduction:

This article attempts to fill that void [in literature regarding sanctions] by exploring the “5 W’s” — who, what, where, when and why — of California appellate sanctions by analyzing court of appeal sanctions awards from 2002 (the first year unreported cases were included in online search engines) through 2005.  More specifically, this article describes which courts award sanctions, how much is awarded (compared to how much was requested), how often courts awarded sanctions upon their own motions, what kind of errors (and how egregious) are necessary for an award, and against whom sanctions are awarded (parties, their attorneys, or both).

I’ve read the entire piece and find this introductory statement understates the depth of the article.

Few readers, I’m sure, will be surprised to learn that the article confirms that solo/small firm lawyers are sanctioned more often than lawyers from larger firms.  The article looks at this in a purely statistical sense.  Other commentators, of course, have alleged a bias against solos and small firms when it comes to discipline.  A good starting point for those who are interested is this post at Carolyn Elefant’s “My Shingle” blog, which includes links and a comment that offers some very plausible, bias-free reasons for the disparity.  That post addresses ethics committees, but Carolyn has also blogged on bias in the courts.  In this post, she comes to the defense of a “big firm” partner against whom a Florida judge issued an OSC re contempt for saying the judge was a “few french fries short of a happy meal,” and she links to her earlier posts on anti-solo judicial bias.

I was struck by how many of the cited cases were unreported.  The Court of Appeal should want to publicize the conduct that leads to sanctions, because this would inform and deter.  It could be that sanctions are so rare (awarded in approximately 1 out of every 500 cases during the studied period) that the Court of Appeal finds additional deterrence unnecessary.  Whatever the reasons for unpublished sanctions opinions, perhaps more of them will be published under the new rules for publication.

Unfortunately, there is no online version of the article available.  If that changes, I’ll let you know.

You may recall my post about an ethics complaint brought against a Florida lawyer who posted highly negative comments about a judge on a local internet forum.

Above the Law had several posts following the progress of this case, which are together on this page.

This statement to a judge was made by (a) a newly minted, naive lawyer; (b) a renegade solo criminal defense attorney; (c) a criminal defendant; (d) a partner from a prestigious, nationally recognized, Chicago-based law firm.

Answer: (d).

The remark earned him an order to show cause as to why he should not be suspended from practice before the court and have his pro hac vice admission revoked.

See Above the Law for the full story.  Some commenters there actually take the judge to task.  There are also some reasonable explanations offered for the lawyer’s statement, suggesting that the judge misunderstood the comment.  But I don’t know if any of them are right.

UPDATE (5/31/07): Is it possible I show too much deference for authority? Carolyn Elefant of the My Shingle blog really made me think with this post taking the judge to task for sandbagging the lawyer and overreacting by issuing the OSC and copying every judge on the court. Unlike most of the snarky commenters at Above the Law, she explains her position. If you’re a solo, you may also want to go to her main page and scroll through some of her posts about the special burdens of solos when it comes to sanctions and ethics charges.

Technorati Tags: legal ethics

So it’s no surprise to me that a blog to discuss judicial performance has arisen in at least one jurisdiction. Kevin O’Keefe at Lexblog links to a Florida blog to which lawyers posted their opinions regarding judicial performance. Now an ethics complaint against a lawyer who posted highly negative comments about a judge is raising issues of professional ethics and freedom of speech. See O’Keefe’s post, and the links therein (to a newspaper article and to the blog itself), for details. Not all of the judges dislike it.

Actually, it seems like a wiki might be much better suited for this purpose. But no less dangerous.

The briefs were part of an appeal to Superior Court disputing a decision by New Castle County Board of License, Inspection & Review, in which he made several statements including that the county could appoint “monkeys” to the board and “simply allow the attorney to interpret the grunts and groans of the ape members and reach whatever conclusion the attorney wished from the documents of record.”

The Delaware Supreme Court found that submission of the brief violated their rules of ethics.  Though it is not apparent from the excerpts provided in the article, the court found that the brief suggested that the reviewing court would rule against the party due to bias rather than the merits of the case.

Judicial bias is a legitimate ground for appeal after the fact.  And you can even be proactive about it in California trial courts.  Better to follow prescribed procedure, though (see Code Civ. P. § 170 et seq.), than resort to monkeyshines.

Technorati Tags: legal writing, legal ethics