Memorial Day Gratitude

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We at LPR morn those who perished while serving in our country’s military.  We are so grateful for their service.

LPR will be closed on Monday in observance of this national holiday.

 

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Life Of A Bar Complaint – At Least In D.C.

So what happens when a legal consumer files a bar complaint?  Are the attorneys ever really disciplined?  Recently, the Washington Lawyer magazine ran an article titled Q&A With Eric Yaffe: Chair of the Board on Professional Responsibility, addressing these and other questions.  In short, the bar complaint process can be involved, and sometimes attorneys are disciplined.

DC-bar-logoThe article begins with Mr. Yaffe’s response outlining D.C.’s Board on Professional Responsibility’s mission:

The board’s central mission is to protect the public, the courts, and the legal profession by ensuring that the rules that govern all lawyers are abided by in the District of Columbia. We are trying to make sure that there is a fair process, that attorneys and complainants have an opportunity to be heard, and that a fair decision is ultimately rendered.

According to Mr. Yaffe, there are four levels to D.C.’s attorney disciplinary system: Office of Bar Counsel; a hearing committee; the Board on Professional Responsibility; and the D.C. Court of Appeals.

Reportedly, when a complaint is registered with the bar, the Office of Bar Counsel investigates and decides whether the complaint should be dismissed or proceed.  If the Office of Bar Counsel decides the matter should be swiftly resolved with an informal admonition or diversion, it must be approved by a hearing committee member. Sometimes a Board member is required to review and approve a diversion agreement (meant to rehabilitate or re-educate an attorney on their ethical obligations).

If Bar Counsel decides to proceed, termed “specifying charges,” the hearing committee holds a hearing to review the matter.  The hearing committee is made up of three volunteers: two lawyers and one non-lawyer.  After hearing witnesses and considering evidence, the hearing committee makes an initial determination, which is submitted to the Board in writing as “findings of fact, conclusions of law, and any sanctions it recommends.”

If the decision is appealed by either party, the Board holds oral arguments, reviews the hearing committee’s findings, and submits a report and recommendations to the D.C. Court of Appeals.  The Court of Appeals is the ultimate decider and can agree with the Board, disagree with the Board, or remand the case for further proceedings.

At this point, there is a short list of disciplinary measures that can be taken.  Least serious is a public letter of informal admonition from Bar Counsel, which is published in the Washington Lawyer and on the D.C. Bar’s website.  The next, slightly higher level of discipline is a Board reprimand.  For the next level of discipline, the D.C. Court of Appeals can publicly censure the attorney.  For all of these forms of discipline, the attorney can still practice law and is not suspended.

More serious infractions can result in a suspension from practicing law for 30 days to three years.  Suspensions can include probation or forms of monitoring and can be imposed with a fitness requirement, where the attorney must prove fitness to practice after expiration of the suspension.  The most serious is disbarment, which amounts to a five-year suspension with a fitness requirement.

The article does not address the number or percentage of legal consumer complaints that are dismissed or that proceed to a given stage.  Nor does the article address the types of alleged infractions that are dismissed or that proceed to a given stage.

Regardless, for any legal consumer who believes that an attorney has acted unethically, at least with respect to the D.C. Bar, the article provides some insight into the bar complaint process.

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If It Can Happen To BB King . . . It Can Happen To You

Rock and Roll Hall of Famer BB King is currently in hospice care in his home, while his long-time manager and certain of his children are fighting over control of his affairs.  As reported by the BBC in a May 8, 2015 article titled, BB King: Musician’s family lose bid to control his affairs, three of Mr. King’s children filed a lawsuit claiming that his manager, who has power of attorney, was neglecting Mr. King’s medical care and stealing his money.  The court held a hearing, which Mr. King did not attend.  The judge found no evidence of abuse and ruled in favor of Mr. King’s manager:

BB King

BB King

Mr King has counsel. I don’t have anything here that says he lacks capacity. He has some serious health issues. But he has counsel. If he feels like he’s being taken advantage of, he has remedies.

It appears that Mr. King appointed his long-time manager to look after his finances and welfare when he was no longer able to do so, rather than appoint any of his children.

There are so many stories of this type of elder abuse and of children, friends and counsel fighting over who is best to look after elders, especially when the elders have money. Unfortunately, there is no sure way to know whether those in control are taking advantage.  Even the judges don’t know for sure.

When deciding who will have control over your affairs when you are no longer able, it is important to consider that serious consequences can result.  It’s an important decision – your very life could depend on it.

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BigLaw Firm’s Simple $1.5 Billion Mistake

How does a simple mistake by a law firm end up costing $1.5 billion?  According to the U.S. Court of Appeals for the Second Circuit, it happens when the law firm inadvertently includes an unrelated security interest for a $1.5 billion loan in the list of security interests to be terminated in the course of a different loan payoff.  

1And, it happened to behemoth General Motors’s counsel, BigLaw firm Mayer Brown, LLP.  GM had requested that Mayer Brown prepare payoff documents for one of two unrelated loans, including documents to release the security interests held by the lenders.  The Mayer Brown partner assigned the task to an associate, and the associate asked a paralegal to prepare a list of security interests held by GM’s lenders.  Apparently unfamiliar with the matter, the paralegal undertook the search for GM’s financing statements recorded in Delaware and identified three.  Two were relevant to the loan payoff at hand, and the other was a security interest in certain GM assets for the second loan from different investors.

The Mayer Brown associate failed to catch the mistake, as did the Mayer Brown partner who assigned the matter.  The GM representative did not notice the mistake, nor did JPMorgan (the administrative agent and secured party of record for both loans), the lender, or its counsel, Simpson Thacher & Bartlett LLP, all of whom were provided copies of the documents.  GM paid off the loan, and the security interests were released, all three of them.

Shortly thereafter, GM filed for chapter 11 reorganization in the bankruptcy court.  The mistake was discovered during the bankruptcy, and the Committee of Unsecured Creditors sued JPMorgan claiming that the mistake was irrelevant to whether the termination of the security interest was valid, and that without the security interest, JPMorgan was an unsecured creditor on par with the other unsecured creditors. JPMorgan took the position that the termination was unintended, unauthorized and thus invalid.  The Court did not agree.

Transactional law routinely involves numerous documents, often with tedious boiler plate language.  Clearly a number of attorneys and corporate representatives had the opportunity to review the termination documents.  Whether they failed to review them or glossed over language and the terms of the documents, not one of them caught the mistake potentially costing JPMorgan, the lenders, and possibly the law firms, $1.5 billion.  Let this be a cautionary tale to transactional attorneys and legal consumers alike.

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If It Can Happen To Playboy . . . It Can Happen To You

Playboy Enterprises recently filed a legal malpractice lawsuit against its attorneys for failing to settle an employee whistleblower lawsuit within the insurance policy limits, thereby exposing Playboy to a verdict in excess of the policy limits.  According to an April 20, 2015 article on Courthousenews.com, titled Playboy Sues Sheppard Mullin for $7.6M, Playboy claims that the law firm projected Playboy had a 75 percent chance of winning the employee’s lawsuit, and that even if the employee prevailed, her maximum recovery would be well within the $5 million employment practices insurance policy limits.  The firm’s projections were reportedly based upon a lost wage projection and a mock jury trial.

Image courtesy of pixabay.com

Image courtesy of pixabay.com

The employee’s case proceeded to trial, and the jury awarded her $6 million.

Playboy claims in its malpractice lawsuit that the firm’s evaluation failed to account for the employee’s emotional distress and punitive damages claims.  It further claims that had the firm conducted a more thorough analysis, it would have concluded that there could be a verdict in excess of the policy limits.  In other words, Playboy claims that the law firm should have recognized the possibility of an excess verdict and should have demanded on Playboy’s behalf that the insurance company settle the lawsuit within the policy limits.  That would have protected Playboy by preserving a claim against the insurance company for failing to settle the case within policy limits and exposing Playboy to an excess judgment.

[Playboy] claims that an ‘attorney of ordinary skill and capacity’ would have advised it to settle the case and ‘demand that [the insurer] settle within policy limits to protect its insured from both an excess and a potentially uncovered compensatory and punitive damage exposure.’

The law firm denies the allegations and “expects vindication and collection of [their] unpaid fees.”

This is a cautionary tale to both legal consumers and attorneys alike.  Cases need to be properly evaluated for exposure, which at times may warrant a second opinion.  And, when there is any possibility of a verdict in excess of the applicable policy limits, the insurance carrier should be put on notice and a settlement within policy limits demanded.

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Reinventing Law Schools

Elon University School of Law Dean Luke Bierman wrote an article for The New Normal section of the ABA Journal, titled Four steps for reinventing legal education.  In his April 15, 2015 article, Dean Bierman argues that the new normal for law schools includes lower enrollment, higher debt and depressed job prospects.  He charges that there has been much chatter about changing the law school model without many tangible ideas.

Dean Luke Bierman

Dean Luke Bierman

Believing that law schools need to be “creative, bold and prescient” to improve the situation, Dean Bierman proposes four “critical elements of overhaul.”

1. Redesign the curriculum to reflect current and future law practice.

Beyond foundational law courses, students need more and better training in writing, business skills, project management, technology, data analytics, leadership development, and communication. These qualities are coveted by law firms and enable lawyers to blossom from narrow technicians into strategic thinkers, deal makers, problem solvers and community leaders.

2. Focus on real-world learning.

We need to require hands-on learning through partnerships with law firms, judges, nonprofits and government agencies – where students can learn by doing in immersive and iterative programs. We also need students to test themselves in simulations led by practicing attorneys and take part in greater numbers in clinics, trial advocacy, moot court, and mock trial programs.

3. Give students access to a network of judges and attorneys.

Rather than hoping that students will carve out a career path on their own, we should provide them with professional advisers and mentors, including faculty, attorneys, career consultants, and executive coaches who counsel them on course selections, practical experiences and custom pathways to career success. We also should provide workshops and programs that encourage networking and provide exceptional professionalism training for students in areas of ethics and leadership.

4. Overhaul the cost of law school.

[W]ith the average debt of private law school graduates reaching nearly $125,000, the fourth critical element to an overhaul is cost – we must make law school more affordable. . . . One way to do that is to realign the curriculum so that all students can accelerate their studies and graduate in less than the typical three years.

Dean Bierman acknowledges that these changes may seem “aggressive,” but he believes that it is “time for bold action.”  We wholeheartedly agree.

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Judges Who Blog

We have previously posted about judges who blog, including Judge Richard G. Kopf of the U.S. District Court for the District of Nebraska and his blog, Herculesandtheumpire.com. This week, we received an email from Judge Alan Pendleton of the Tenth Judicial District Court in Anoka, Minnesota, advising us that he reads our blog and advising us of his blog, PendletonUpdates.com.

Judge Alan Pendleton

Judge Alan Pendleton

Judge Pendleton started his Judicial Training & Education Blog in August 2014 at the request of his Supreme Court Chief Justice.  According to Judge Pendleton, his blog

serves as the official repository for a series of judicial training updates . . . and is also designed to serve as a one-stop judicial resource library with numerous hyperlinks to sites of interest.

After browsing through the blog, we note that it contains a plethora of information for Minnesota judges (and judges applying Minnesota law).  But we also saw in the blog straight-forward language that could be an informative resource for Minnesota legal consumers as well.  The blog covers many legal issues, including civil (litigation) procedure, criminal procedure, criminal law, divorce, domestic violence, eviction, evidence, and trial issues.

We are gratified that Judge Pendleton has read our blog, and we thank him for bringing his blog to our attention.

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“Hot Bench” – Judge Judy’s New Show Is Eye-Opening!

Judge Judy Sheindlin (a/k/a Judge Judy) has developed a new legal show titled Hot Bench, and according to a March 31, 2015 New York Times article (courtesy of Yahoo! Finance), “it’s a surprise hit.”  Debuting in 2014, it’s already topping the charts as the No. 1 syndicated show.

The premise: a three judge panel hears civil cases and then retires to deliberate . . . all on camera.  The panel: former New York State Supreme Court justice Patricia DiMango, Yale Law litigator Tanya Acker, and criminal defense attorney Larry M. Bakman.  The viewer watches the deliberations and how each judge views the evidence and the witnesses.

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Judge Judy Sheindlin courtesy of wikipedia.org

The show is eye-opening in that the viewer can see for themselves that different judges view evidence and witness veracity differently. The show illustrates the truism that justice actually isn’t blind.

‘People rely too much on the judicial system to be perfectly calibrated,’ Judge Sheindlin said in a telephone interview. ‘Very often, it’s a crapshoot. I wanted people to see that when you go to court you can never be sure of the outcome. The people hearing and determining the cases bring all their history with them.’

On this blog, we have stated numerous times that justice is not always just, it is not blind, and the outcome of any lawsuit can be heavily dependent on the presiding judge.  Hot Bench makes that case abundantly clear.

 

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Commission on the Future of Legal Services

In August 2014, the American Bar Association Board of Governors created the Commission on the Future of Legal Services.  According to a February 2015 ABA article titled, Lots of ideas, but no single theme at Commission on the Future of Legal Services’ public hearing, the Commission held a public hearing during the ABA’s 2015 Midyear Meeting in Houston, Texas, in the hopes of eliciting ideas on how to improve access to justice for consumers with low to moderate income.  A number of people spoke, including attorneys, judges, academics, and representatives of private legal service providers (including Legal Zoom). Unfortunately, the hearing failed to identify an easy fix to the problem.

Picture courtesy of UpstateNYer via wikipedia.org

Picture courtesy of UpstateNYer via wikipedia.org

The Commission’s chair, Judy Perry Martinez, commented on the problem after the hearing:

‘I think there’s an acknowledgement that change has to happen, . . .  Lawyers realize we’re not meeting the needs of the public, and there needs to be a combination of solutions. But what’s the priority, lawyers or the public? I think those interests align. The interest of the client, the interest of the public, has got to be the guiding light.’

According to the ABA article, the Commission will hold a National Summit on Innovation in Legal Services on May 2-4, 2015 at Stanford University.

While the February hearing did not identify any silver bullet, we at LPR are encouraged that the American Bar Association admits there is a problem and are taking steps to resolve it.  Hopefully, judges, lawyers and bar associations across the country will join in and work together to effect legal reform.

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Limited License Legal Technicians

In 2012, the Supreme Court of Washington state enacted a rule allowing non-lawyers to practice law in a limited capacity after specialized training.  According to a March 13, 2015 Washington Post article titled Who says you need a law degree to practice law?, twenty-nine of Washington’s colleges offer the requisite courses in civil procedure, legal research, contracts and family law.  Once the training is completed and they pass a licensing exam, the graduates apprentice with an attorney for 3,000 hours before they can practice on their own.

waCourtsLogo‘They’re highly trained in a specific field of law,’ says Steve Crossland, who chairs the LLLT [Limited License Legal Technician] board. ‘In some ways, it’s more intensive training than what a lawyer gets.’

Washington’s program provides legal services to poor and middle class people who cannot afford traditional legal services, people who would otherwise have to represent themselves – sometimes with dire consequences.

‘The consequences can be failure to understand or enforce an order that can prevent ongoing violence or protect the safety of kids. It can mean losing the right to continue to live in one’s home.’

*     *     *

‘We have people come in who relied on a friend who thought he knew how to fill out paperwork, . . . Then they’d go to court and get creamed. They’ll come to us, and we’ll look at their paperwork and it’s a disaster.’

Given the reduction in funds for legal aid, Washington’s LLLT program is filling a void for the legal services industry.  And, California, Oregon, Colorado and New Mexico are reportedly considering similar programs.

‘We need to take a leaf from the medical profession, which has long recognized that people with health problems can be helped by a range of assistance providers with far less training than licensed physicians,’ New York Court of Appeals Chief Judge Jonathan Lippman said in his 2014 state of the judiciary report. ‘We all accept that. Why not the same in the law?’

Why not indeed.

 

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