f/k/a . . . the archives

February 29, 2004

Mitigate This?

Filed under: pre-06-2006 — David Giacalone @ 9:59 pm

The lawyer disciplinary review board in New Jersey has had a running dispute with the State’s Supreme Court over the importance of addiction and the pressures of practice in the fashioning of sanctions for lawyer misconduct.  The board has consistently been more lenient than the Court believes is warranted.   

 

dice

 

As reported in the New Jersey Law Journal, on remand, the NJ DRB increased the ethics sanction imposed on attorney Edward Bowman, giving him a three-month suspension.  (Sorry, Addiction and Work Pressures Don’t Lead to Light Ethics Sentence, 02-16-04; free reg. req’d),   According to the article:


“Edward Bowman admitted that he neglected six clients. He also said he was an alcoholic burdened by depression, family problems and pressure at Vineland’s Gruccio, Pepper, DeSanto & Ruth to work harder. The partner lived in fear of missing billing goals that would cost him pay, but he was afraid to say no to more work, compounding his inertia.”


“He did not file required complaints or motions opposing summary judgment, resulting in irrevocable judgments against some clients. He did not inform two clients of settlements. In one case, he signed a client’s name to a release without consent.”

The “compassionate” Disciplinary Review Board originally recommended a reprimand and a rehabilitation program he had established under a therapist’s care.  But, the Supreme Court disagreed in 2001.  In an opinion dated Feb. 2, 2004, the repentant Board saw the light, concluding that the gravity of the misconduct was greater than the mitigating factors. 

exit  NJLJ adds that members of the DRB have also “made public pleas in recent years for relaxation of the automatic-disbarment-for-misappropriation rule for lawyers recovering from addiction and psychological woes.”  The Supreme Court has stuck to its guns, and I agree that lawyer-dominated discipline boards are often far too ready to sympathize with their colleagues and give light sanctions.  



  • Bowman’s lawyer disagrees, saying that “the system as a whole seems to lack a full appreciation of the level of pressure on solo and small-firm lawyers in an age of increasing complexity.”  

To my mind, the District of Columbia’s approach to factoring disabilities into the determination of an appropriate disciplinary sanction seems about right. (as described, with case citations, in this article, by Bar Counsel Joyce E. Peters)  The D.C. Court of Appeals has stated that “issues of disability and incapacity . . . can significantly affect the choice of an appropriate disciplinary sanction.”   For example, in the Kersey case, the Court showed that evidence of alcoholism could be considered, not in defense, but as a mitigating factor in a case involving serious ethical misconduct, and that evidence of rehabilitation was very important in determining the appropriate sanction. 

However, if the lawyer fails to establish that the disability is substantially related to the misconduct, the lack of a “but for” nexus to the misconduct makes the disability irrelevant   In re Lopes [770 A.2d 561 (D.C. 2001)], which included allegations of dishonesty and neglect in violation of a dozen rules, presents a prime example.  The attorney presented evidence of serious health problems, including depression and severe side effects from prescription medicine.”  


“vampire”  As Peters explains in her article, the hearing committee found that “Lopes’ various infirmities substantially caused all of his misconduct, including not only his neglect of his clients’ matters, but also his acts of dishonesty and forgery,” and recommended mitigating the sanction to a 60-day suspension stayed in favor of probation for one year with certain conditions (restitution and completion of a continuing legal education course).  However, the disciplinary board concluded (and the appeals court affirmed) that “the sanction should be mitigated, but only with regard to the neglect charges and related violations.” — it found no causal realtionship between the disabilities and the conduct involving dishonesty, saying:



“Dishonesty cuts away at the heart of the legal profession. We are not inclined to diminish the seriousness of that misconduct by relying on too tenuous a link between dishonesty and physical or psychological impairments. The physical and psychological impairments under which [the attorney] labored undeniably were extremely difficult. We agree with the Hearing Committee that the picture [the attorney] painted of what he felt and experienced for a number of years was credible and sympathetic. There is no evidence, however, that the physical and psychological impairments, separately or in combination, either rendered [the attorney] unable to understand that he was being dishonest or unable to behave otherwise. Absent such evidence, we cannot conclude that the ailments were “sufficiently determinative of his conduct” to support a Kersey defense.” (emphasis added) 

The court accepted the board’s conclusion that Lopes had presented sufficient evidence of rehabilitation and ordered Lopes suspended for six months, coupled with two years of probation, requirements for restitution, and compliance with other conditions prior to reinstatement.   That’s much fairer to the public than the original recommendation of a stayed 60-day suspension.



  • I also agree with the ABA Commission on Impaired Attorneys, that disciplinary agencies that take disability and rehabilitation into account to mitigate sanctions must establish monitoring programs to assure follow-through by the attorneys (Guiding Principle 6).  
  • See the GPSolo magazine “Bumps in the Road” issue (July/August 2001), for useful information on alcoholism, substance abuse, gambling, Internet addiction, adult attention deficit disorder, and other problem areas in the lives of lawyers.

P.S.  The Comments to the ABA’s Model Rule for Lawyer Disciplinary Enforcement, Rule 10, lists the following mitigating factors for imposing discipline.



“Mitigating factors include: absence of prior disciplinary record, absence of dishonest or selfish motive; personal or emotional problems; timely good faith effort to make restitution or to rectify consequences of misconduct; full and free disclosure to disciplinary board or cooperative attitude toward proceedings; inexperience in the practice of law; character or reputation; physical or mental disability or impairment; delay in disciplinary proceedings; interim rehabilitation; imposition of other penalties or sanctions; remorse; and remoteness of prior offenses.”

February 28, 2004

He Who Pays the Piper

Filed under: pre-06-2006 — David Giacalone @ 9:00 pm

Talk about wasting my breath:  Two days ago I got on my soapbox and complained about a series of inappropriate remarks by criminal defense lawyer E. Stewart Jones in a rape case.  I ended the post with the plea:



I also hope that local media, especially tv, will stop giving defense counsel such as Jones so much coverage.   Neither defensive boilerplate nor offensive balderdash is news.  

fife drum neg  I then sent the anchor of my favorite local news channel a copy of the posting, emphasizing that last statement.  That evening, I tuned into Channel 10, WTEN, to see if they had anything to say about the Boxley-Jones-NOW flap.  The very first announcement at the top of the hour was:


News 10 at 5 is brought to you by the Law Firm of E. Stewart Jones.

Jones is also a leading personal injury lawyer in this region, thus his significant advertising presence.  So far, the anchor has not responded to my email message.  Am I too naive or too cynical?



  • Afterthought (02-29-04):  Add slow learner to my job evaluation.  Back in 1997, I tried to get media attention for the misleading ads and related unethical conduct of this attorney.   The story got no coverage, and I got no response from the broadcast and print media to my correspondence.   At the time, said attorney was the biggest lawyer advertiser on every local tv news show, and took out daily ads in every local newspaper, including full-page ads once a week or more.  It is estimated that as many as 20,000 clients bought his debt reduction scam (losing thousands of dollars each), before his federal indictment in 2003.


  • Now, if I can only figure out why the friendly consumer-advocates and fearless investigating reporters at each local tv station have time to run down one-man roofing pirates, but no air time to discuss the issue of standard contingency fees (e.g., lack of price advertising, consumers uninformed about their right to negotiate fee levels)..

 

February 27, 2004

what to do with that extra day

Filed under: pre-06-2006 — David Giacalone @ 11:01 am

Don’t go here.    


Tentative e&h Schedule for 02-29-04: napper neg



afterthought (03-01-04):  Sigh.  I did far too much weblogging and far too little napping on Feb. 29.   I was wise enough to watch the opening segment of the Oscar Show (always enjoy Mr. Crystal), and was pleased to close my Evan Dream Team file.

February 26, 2004

Mass. Advocates Seek Fair Funding and Fees

Filed under: pre-06-2006 — David Giacalone @ 11:54 pm

The Massachusetts Association of Court Appointed Attorneys is in a fight with the administration of Governor Mitt Romney, hoping to establish a funding mechanism that meets constitutional requirements and assures assigned counsel fair compensation for their legal services.

 

As stated in an MACAA press release issued 02-26-04:


scales rich poor neg  Constitutionally mandated court functions must be fully funded by direct appropriation. Contingent funding for core court functions and indigent representation is unconstitutional. Funding public defenders from indigent counsel fees was found unconstitutional on February 12, 2004 in Minnesota, and has been found unconstitutional in other states.


An independent judiciary requires full, secure funding by direct appropriation, as does the sixth amendment right to counsel.


The Governor’s proposal to use so-called “retained revenue” to fund constitutionally mandated core functions constitutes contingent funding, illegally attempting to balance the Commonwealth’s budget on the backs of the poor.

We posted on the Minnesota decision regarding unconsitutional co-pays by indigent defendants on Feb. 12, 2004.  Massachusetts (at $150) charges indigent defendants three times as much as Minnesota ($50) in District Court cases.  You can learn much more about these issues on the What’s New page of the Bristol County (Mass.) Bar Advocates.  MACAA will be presenting testimony at a legislative hearing on Feb. 27, 2004, in Boston.


  • Yes. these are the same Bar Advocates, I wrote so frequently about last Fall (e.g., here).  They don’t need or want my blessing for their legislative and educational efforts, but I’m pleased to see all this hard work on the right side of the antitrust and ethics line.

UK Dads Angrily Protest Divorce Lawyers

Filed under: pre-06-2006 — David Giacalone @ 10:53 pm

Claiming that divorce lawyers “pour petrol” on the flames of divorcing couples, and deprive children of the care of their fathers, members of the group Fathers 4 Justice have been staging dramatic protests in the United Kingdom.  For example, according to The Huddersfield Daily Examiner:


Fifteen fathers wearing white contamination outfits stormed the offices of Parker Bird solicitors in Queen Street, Huddersfield with sirens blaring, whistles blowing and flags waving.

 

fireman hose gray flip 

The article (“Angry fathers in law firm protest,” 02-26-04, via law.com) also noted that F4J bestowed the Golden Petrol Can award on Parker Bird.  In addition:


  • The protesters claim the firm helps prevent fathers from maintaining their parental responsibilities and abuses the human rights of children and fathers in Huddersfield.
  • “We feel that many solicitors manipulate family law against fathers.”

Let me be frank:  I’m surprised this sort of protest hasn’t happened more often in the USA.  My sympathies are with the fathers.  As a Law Guardian representing children and as a divorce mediator, I have seen far too many instances of divorce lawyers needlessly fomenting anger and prolonging proceedings, to the detriment of the own clients, the opposing party and, especially, the children.  As lawyer-mediator Leonard Marlow has pointed out in Divorce and the Myth of Lawyers and The Two Roads to Divorce, the only winners are the lawyers.


p.s. For some practical advice on parenting after separation or divorce, see my essay Tips on Parenting-Apart.  For advice on getting through the grief process of divorce or separation in order to be a healthier person and better parent, see my 1997 monograph, Good Grief  Both articles were written while operating Project PAX: the Parenting-Apart eXchange, in Scotia, New York.

A Better Fix Than ParkingTicket.com?

Filed under: pre-06-2006 — David Giacalone @ 4:31 pm

The Washington Post recently highlighted a website — ParkingTicket.com — that helps folks in D.C., San Francisco and New York City fight parking tickets online (“A New Recruit in the Parking Ticket Laws,” by Don Oldenburg, 02-17-04) (Thanks to Marcia Oddi at Indiana Law Blog for the pointer)

no parking I checked out ParkingTicket.com this morning and have two reactions: (1) I’m not impressed with the value, even though you pay nothing if your parking fine isn’t reduced or dismissed; and (2) helping consumers understand the law of parking tickets is precisely the sort of task that bar associations could do very inexpensively on their websites, and through handouts, both to serve the public and to create goodwill. [Putting together parking law primers could also be a great, if unglamorous, project for law students across the nation.]

Of course, information about parking law and dealing with parking tickets belongs on court-based self-help websites — but I’m afraid that such services would run afoul of the revenue-generating purposes of most parking-enforcement schemes.

The ParkingTicket website might be perfectly acceptable to the ticketee who merely wants to contest a citation without appearing in person and doesn’t mind paying a middleman a hefty fee. But, value-conscious consumers will surely balk. Taking a look at PT’s Terms & Conditions, reveals that its “Guaranteed Dismissal Fee” is equal to half of the amount saved by the Customer (thus, the fee is $50 if a $100 ticket is dismissed). In addition, the fee is paid upfront, but is not returned until after both an initial judgment of guilt and a mandatory appeal by Parkingticket.com.

What we have is a 50% reverse contingency fee, paid in advance for a “confidential, customized dismissal letter” that is computer-generated after the customer answers a short list of questions. That’s a high price for beating a ticket you could very well have fought yourself successfully — plus, you get to subsidize the frivolous pursuits of PT’s less reponsible, scofflaw Customers.

wrong way neg Frankly, I’m also not impressed with PT’s philosophy. On its FAQ page, it asks “When should I fight a parking ticket and when should I just pay it?” And responds “You should fight a parking ticket whenever you feel like it. There is no rule to say you shouldn’t fight a ticket. It is your right to fight a ticket for any reason at all.” That’s not too civic minded, and hopefully not the response that a lawyer would give a client. On the topic of legal advice, ParkingTicket declares in its Terms:

13. Customer authorizes parkingticket.com to share its parking ticket and related information to outside counsel including attorneys, retired Parking Ticket Municipal Judges, retired Police and Traffic Agents and other consultants as parkingticket.com may see fit at its sole discretion. parkingticket.com is a website and not an Attorney. parkingticket.com does not give legal advice. Do not consider anything on this website as legal advice. If you need legal advice please contact an attorney.”

For some free information on parking tickets, I suggest my PrairieLaw.com article Parking Meters 101 – it has a few fun anecdotes from my own experiences with parking meters in Schenectady. Teaser: find out if you have to pay a ticket at a broken meter.

  • The article also sets forth a little of my philosophy on both operating regulatory systems and paying parking tickets:
    A civil society requires more than well-crafted regulations; it requires proper enforcement. The humble parking meter can teach us a lot about designing and operating a good regulatory system. Lawbreakers and whiners aside, some parking tickets are just plain unlawful or unfair — the result of poor planning, poor enforcement or both.
    When I think a ticket is unfair or unlawful, I fight it, even a $5 one. In the process, I’ve discovered that more than a few meter maids and municipal lawyers need to learn some parking meter law.
    In a nutshell, a parking ticket at a meter is fair if the driver failed to pay the posted fee, overstayed the time limit or parked at a prohibited time — as long as the meter is in the right spot, works correctly, is properly labeled, and neither the government nor the weather has made it unreasonable to comply.

Doing Something About Fat Lawyers

Filed under: pre-06-2006 — David Giacalone @ 2:19 pm

runners black  They may still be increasing their fees, but a number of prestigious law firms are also trying to reduce their lawyers’ waistlines.  According to an article in today’s New York Lawyer, wellness programs are spreading rapidly in a leading-edge attempt to reverse swelling legal behinds and health insurance costs. (NYLJ, “Law Firms Adopting Wellness Programs,” 02-26-04)



  • Check out this article, if only for the gratuitous barb about Pittsburgh attorneys (the old Rust-Belt-Loosening stereotype, I presume). 
  • After my last post, I was pleased to find some lighter fare.

Boxley & Jones: Giving Lawyers a Bad Name, Bigtime

Filed under: pre-06-2006 — David Giacalone @ 11:59 am


Michael Boxley and E. Stewart Jones are lawyers, but not partners.  Boxley is an accused rapist and confessed sexual offender and Jones is his high-paid attorney.  They’ve been in the news a lot over the past year, in the New York Capital Region, and their conduct can only further blemish the reputation of the legal profession.

 

Jones&Boxley Jones & Boxley at sentencing

S. Dickstein/Times Union

 

Boxley, who is now 44 years old, was the top legal counsel in the New Yok State Assembly (working for Assembly Leader Sheldon Silver), at the time of the alleged rape of a 22-year-old legislative aide, who worked for another Assembly member.   According to Newsday.com,


“Similar allegations were made against Boxley in 2001 by another woman who worked for the Assembly. She said Boxley sexually assaulted her at his apartment after a night of drinking. Criminal charges were never filed. After an internal investigation within the Assembly, the woman and Boxley reached an agreement without sanctions against Boxley.”

The current story first became public last year, when the victim requested a sexual harassment invesitgation in the Assembly.  Speaker Silver released a statement saying “I have the utmost confidence in Michael Boxley. He is man of integrity and of the highest character and I am certain when all the facts are known Michael Boxley will completely exonerated.”  Lawyer Jones was a little less reserved, he asserted:


shark neg . .



“She is alleging impropriety. Any impropriety is in her mind. Didn’t happen, never occurred. It’s an outrageous boldface lie if she is suggesting there is any misconduct on Michael Boxley’s behalf.”


Subsequently, a grand jury indicted Boxley, claiming he had sexual intercourse with the woman when she was physically helpless in her apartment.  On the day last August, when Boxley pled not guilty to the rape charges, Attorney Jones “lashed out at Boxley’s accuser,” saying:



“These are the fantastic imaginations of a woman who is motivated by reasons that we don’t understand at this point in time. She’s lying to herself and those lies have led to lies to the police, the prosecutor and the grand jury. And that’s the reason we’re here,”


When Boxley decided nonetheless to plea to a far-lesser misdemeanor charge of sexual misconduct, he admitted having had nonconsensual sex with the victim.  His mouthpiece Jones announced that Boxley only took the plea to avoid losing his license to practice law – then, however, Jones made the outrageous statement, repeated in subsequent interviews, that Boxley was innocent and only pleaded guilty to avoid trial by an all-white jury.   Jones explained in television interviews that he did not believe Boxley, a black man, could get a fair trial in Albany — despite having the area’s preeminent criminal defense attorney!


scales rich poor  As if all this weren’t tawdry enough, things got more heated this week, when Boxley was finally sentenced to six years probation and a $1,000 fine, and listing on the state’s sexual offender registry.  The victim, who had previously stated she agreed with the plea bargain, made an angry and tearful statement to the court, saying “This is a first-degree rape case, not a misdemeanor,” 


According to AP/ Newsday:


The victim said she thinks the deal was struck because of Boxley’s power.   “I am disgusted by the mismanagement of my case and the strings that were pulled to allow a rich rapist free range of our community,” she said.

In response, Jones said the statement at sentencing was an “exercise in self-delusion.”  And, defended the district attorney’s office, saying that the victim’s charges that the case was mishandled were “unfair, inaccurate and unjust,”   Then, Jones got really ugly, declaring in front of an array of tv cameras:



“She is not a naive, innocent, fragile girl.” 


 ”She is engaged in self denial about a lifestyle that brought all this together, and that is why we are here.”


“This young lady is a hard-partying, hard-drinking, marijuana-using, socially experienced, socially active, uninhibited poster girl for the wild side of Albany night life.”


When asked if there might be a civil suit, Jones replied, “I think she may be lawyered-up.” 





smallest shark Jones’ implication that the victim brought the crime on herself is totally inappropriate, and has caused more heat.  As the Times Union reported today (“Victim details night’s ordeal,” by Michelle Morgan Bolton, Feb. 26, 2004, available free for 7 days), the National Organization for Women’s Albany chapter called for Jones, to apologize to all women for remarks he made outside the courtroom following the sentencing.  The article continues:

Jones hit a nerve by characterizing the woman as a “hard-partying, hard-drinking … uninhibited poster girl for the wild side of Albany nightlife.”


“E. Stewart Jones … has made an appalling statement in the Michael Boxley case, blaming the victim and her social life for her circumstances as a victim of sexual assault,” [NOW leaders] said.

“In today’s society, a statement such as this is preposterous,” they said. “Attitudes such as these encourage the notion that violence against women is warranted based on that woman’s social life. Despite the defendant’s mild sentence, the use of the term ‘poster girl’ in referring to a crime victim is atrocious.”


“They were not in the courtroom,” Jones responded later. “They didn’t hear what she said. Everything I said is supported by proof. She misled everyone about herself.”   There will be no back-pedaling, Jones said: “No apology is forthcoming. No apology is required. No apology is justified.”

“My statement was very specific to this case and the remarks she made in the courtroom,” he went on. “It has absolutely nothing to do with any other women. … If she hadn’t said what she said, I wouldn’t have opened my mouth.”


Last year, I complained about “criminal defense lawyers spouting sound bites on courthouse steps, the content of which often strains credulity, blames victims, and has very little to do with the important role of making the government prove its case.”   I believe E. Stewart Jones is a Poster Person for just that sort of conduct.  It makes lawyers look bad.  Very bad.

 

As his website correctly proclaims, Jones is highly prominent, and highly sought-after for both criminal defense work and plaintiff’s personal injury cases (emphasis added):


One of the few attorneys in the entire country that is board certified as both a Civil Trial Advocate and Criminal Trial Advocate by the National Board of Trial Advocacy, Mr. Jones is also a Fellow of the American Board of Criminal Lawyers.

 

With credentials such as these, you are assured of the highest caliber of legal counsel available today.

I’d appreciate hearing what my visitors think about this story.



  • It goes without saying, that I hope NYS bar counsel won’t let Mr. Boxley’s “mere” misdemeanor violation keep them from imposing appropriate discipline for conduct most inappropriate for members of the bar (and the human race).


  • I also hope that local media, especially tv, will stop giving defense counsel such as Jones so much coverage.   Neither defensive boilerplate nor offensive balderdash is news.  

update (March 5, 2005): A judge has rejected Boxley’s claim that

the State pay his legal fees in a suit by a former Assembly staffer,

who claims Boxley raped her.   According to an AP/Newsday report

(March 4, 2005):


Supreme Court Justice James Canfield ruled against Boxley,

saying “there is no question but that the criminal activity

that petitioner has either already admitted or is accused of

constitutes a substantial departure from the duties of

public employment.”

So far, no comment from the usually chatty counsel for Boxley.

February 25, 2004

Small Claims Reform Bills Are Pending in Eight States

Filed under: pre-06-2006 — David Giacalone @ 8:59 pm

Bills have been introduced, and some are near passage, in seven states that would increase the jurisdictional limits in small claims courts.  If your State is included below, please let your legislators know that you support opening the doors to small claims courts wider.


In addition, a bill is close to passage in Washington State that would help to solve a problem faced by many small claims plaintiffs — how to obtain the money awarded by the court.  House Bill 1572 would require losing parties to pay the collection costs of the winning party if a small claims judgment has not been paid within thirty days. This bill passed the House on February 6 and passed the Senate Judiciary Committee on February 20.  Click here to read the full text of the Bill.


dollar bill gray  The Feb. 25, 2004 edition of HALT”s legal reform eJournal, has the following information and links concerning current efforts to increase dollar limits in small claims courts:




  • Connecticut: Senator Tony Gugliemo has introduced Senate Bill 92, which would raise the jurisdiction for small claims cases from $3,500 to $5,000. Click here to read the full text of the Bill.



  • Iowa: Senator Matt McCoy has introduced Senate File 2106. The bill would raise small claims court jurisdiction from $5,000 to $8,000. Click here to read the full text of the Bill.

     


  • Kansas: On February 16, the Senate Judiciary Committee held a hearing on Senate Bill 437, which would raise the small claims dollar limit from $1,800 (third lowest in the country) to the national median of $5,000. Another bill, House Bill 2678, raising the limit to $4,000, passed the House on February 17 and is now before the Senate Judiciary Committee. Click here to read the full text of the Bill.

     


  • Oklahoma: House Bill 2106, increasing the small claims dollar limit from $4,500 to $7,500, passed the House. The bill, sponsored by Rep. Terry Ingmire, passed the House on February 17. Click here to read the full text of the Bill.

     


  • Rhode Island: Senate Bill 2110, which would raise the small claims dollar limit from $1,500 to $2,500, is currently before the Senate Judiciary Committee. Rhode Island, along with Kentucky, has the lowest small claims jurisdiction in the country. If the legislation passes, Rhode Island would still have the sixth-lowest jurisdiction. Click here to read the full text of the Bill.

     


  • Utah: Rep. Steven Urquhart’s House Bill 124 would raise the small claims court’s jurisdiction from $5,000 to $7,500. It would also allow non-lawyers to represent parties in small claims cases as long as they do not receive compensation. The bill passed the House on February 17 and is now before the Senate Judiciary Committee. Click here to read the full text of the Bill.

     


  • Wisconsin: Assembly Bill 651 would increase small claims jurisdiction from $5,000 to $10,000 for all types of cases except negligence. It passed the Assembly on February 5 and had a hearing in the Senate Committee on Judiciary, Corrections and Privacy on February 17. Click here to read the full text of the Bill.

Go here to learn more about HALT’s Small Claims Reform activities.  You’ll also find lots of relevant materials on ethicalEsq’s Access Resources page.

Indiana Senator Wants to Take Small Claims Back to the 20th Century

Filed under: pre-06-2006 — David Giacalone @ 8:30 pm

Halt.org is reporting in its latest eJournal that Indiana “Senator James W. Merritt, Jr. introduced Senate Bill 455, which would reduce the small claims jurisdiction from $6,000 to $3,000. This would effectively repeal the recently passed increase in small claims jurisdiction from $3,000 to $6,000. HALT’s research indicates that no state has ever decreased its small claims jurisdictional limit.”



Click here to see the text of Merritt’s (um) meritless bill.  The digest of the Bill states:


“Small claims courts. Provides that the jurisdictional amount for small claims or city court actions includes attorney’s fees. Reduces to $3,000 the jurisdictional amount in small claims or city court actions not involving landlord-tenant disputes, and removes a provision that would have increased the jurisdictional amount to $6,000 in 2005. Permits a pretrial hearing to determine whether a claim is frivolous. Prohibits the granting of a continuance solely on the basis that the party is not represented by an attorney. Requires the judge to file a brief memorandum documenting the reasons for the judgment.”


no u turn  Earlier this month, we were worried about small claims reform taking backward steps, but not quite this blatantly.



  • Go here to learn more about HALT’s Small Claims Reform activities.

February 24, 2004

A Large Incentive to Proofread Pleadings

Filed under: pre-06-2006 — David Giacalone @ 11:00 pm

A federal magistrate has sent a loud warning to lawyers with a “whatever” attitude about typos and sloppy writing submitted to courts.  After noting that attorney Brian Puricelli’s courtroom work was “smooth” and “artful” in a civil rights suit, but that his written work was “careless” and laden with typographical errors, U.S. Magistrate Judge Jacob P. Hart “has ruled that his court-awarded fees should be paid at two rates — $300 per hour for the courtroom work, but $150 per hour for work on the pleadings.” (The Legal Intelligencer , Judge Slashes Lawyer’s Rate for Typos, Careless Writing, 02-25-04)


According to The Legal Intelligencer, U.S. Magistrate Judge Jacob P. Hart wrote in his 12-page fee opinion in Devore v. City of Philadelphia that



minusKey  “Mr. Puricelli’s complete lack of care in his written product shows disrespect for the court. His errors, not just typographical, caused the court a considerable amount of work. Hence, a substantial reduction is in order. We believe that $150 per hour is, in fact, generous.”


Hart added, “If these mistakes were purposeful, they would be brilliant.” 

 

‘Nuff said. Write Right.

Bench and Bar Warn Youth About Credit Debt

Filed under: pre-06-2006 — David Giacalone @ 10:30 pm


What a great story (for a change)!  Having seen the sad consequences of overwhelming credit card debt on young consumers, federal bankruptcy judges, with the help of several local bar groups, are trying to use education as deterrence.  The National Conference of Bankruptcy Judges (NCBJ), is sponsoring an outreach project to inform high school and college students about the consequences of excessive debt and irresponsible credit card use.


The project has developed an interactive, 10-minute video, “Bankruptcy: Don’t Let It Happen to You“.  You’ll also find links to other educational sites.


pointer dude neg For more information on who and what, see this article from The Third Branch, Bankruptcy Judges Warn Young Consumers about Credit Card Debt (Feb 2004)  (via law.com Daily NewsWire, 02-25-04).  The article explains, for example, that:


“[Chief Bankruptcy Judge John Ninfo of the U.S. Bankruptcy Court for the Western District of New York] has partnered with a county bar association’s bankruptcy committee to launch a Credit Abuse Resistance Education (CARE) program that encourages middle school, high school and college students to have a budget, differentiate between needs and wants, own only one credit card, and be committed to paying off the balance each month”.

The effort’s success caused Chief Judge John Walker of the U.S. Court of Appeals for the Second Circuit to encourage other courts in the circuit to start CARE programs, and several programs are already in progress, with the help of local bar groups. 

 

Bravo. 

 

P.S.  Maybe better-informed law students will help us avoid some of the problems that led to my recent dialogue with Scheherazade.

 

Law As Daily Passion, Not Default Profession

Filed under: pre-06-2006 — David Giacalone @ 4:59 pm

Are you in law school or practicing law by default?  Did you rush or stumble toward the legal profession becase it promised wealth, or status, or pleased your parents?

 

dice  New Jersey Appellate Judge Jose L. Fuentes has a message for law students: If law isn’t your passion, get out of law school.  More expansively, Judge Fuentes pleads (emphasis added):


To all these unfortunate souls: to the perpetual child, to the risk manager, to the ambitious social climber, to the mindless would-be robo-lawyer, I have but one [piece of] advice: GET OUT! Get out now while you can still leave with your soul intact. Do not allow life to catch you from behind, one day when you least expected and are least capable of resisting.

stop sign gray

 

Get out now and rediscover yourself. Ask the hard questions that you avoided asking when your parents told everyone that their child was going to be a lawyer. Ask, who am I? Not what am I going to do? [At] no other time in your life are you ever going to be as free as you are right now to make these hard choices and then act upon them.

ethicalEsq adds:  If you haven’t a clue what Judge Fuentes is talking about, or if you think he’s some idealist fool, you need to read his entire op-ed/speech in New Jersey Law Journal, “Prospective Lawyers: Get Out Now If You Have No Passion” (02-16-2004; free reg. req’d). (Sincere thanks to Carolyn Elefant for finding and sharing this gem)


podiumSN  
If you’re already a lawyer and entered the profession for any of the above reasons, you should read Judge Fuentes’ words, too – because you’re probably already feeling the soul-death he describes, and heading toward zombieEsq status.


Fuentes sees a growing trend toward legal education as a default choice.  But that condition was surely already prominent in the early 70s.  Law school was certainly my choice by default: “Need another degree; don’t like math or science; want to leave my options open, guess I’ll go to law school.”  And, Elena Kagan, who got her law degree a decade after me, confessed –when she became the Dean of Harvard Law last year — that the profession had been a default choice for her, too. 


The Judge is right: it takes a continuing passion to ”truly be called a lawyer.”  He says that “passion is the single most important attribute of a lawyer.”   Just last week, Abraham Lincoln was quoted in this space saying that “diligence” is the most important attribute of a lawyer.  Fuentes isn’t contradicting Lincoln.  It’s the passion that assures the diligence that Lincoln requires, even when a particular task is dreary or offers little or no financial reward.  

podiumS  . .

 

I don’t think that starting from an initial default condition is necessarily a bar to achieving a fulfilling, passionate career in the law.  While Fuentes says don’t choose law if you don’t bring passion, Lincoln said don’t choose law if you can’t be diligent and honest.  I think they are both pointing to special qualities that are needed by all “true lawyers,” and which Fuentes capsulizes:  


  • Being a lawyer is a great deal more than simply mastering certain analytical skills. It is not what you do. It is who you are. A lawyer does not simply perform a task for the client; she represents the client. …
  • This relationship is not created with the exchange of money or by the signing of a contract. It is a relationship based on trust, created by trust and ultimately dependent on trust.
  • A lawyer’s passion must find an outlet in scholarship as well as advocacy. The law is an attempt to achieve justice and fairness in human interactions. In order to accomplish this, the law must be guided by the noblest aspects of the human spirit — the search for truth, the appreciation of beauty, the ability to love, the capacity for compassion, the need for freedom. 

Can every lawyer find or rekindle the passion for his or her profession?  Probably not.  The profession — despite its great diversity of pursuits — might just be a poor fit.  For many, however, what it takes is the willingness to get out of a rut (and accept a lower income, at least for awhile).   For example, the digital revolution has brought a new lease on life for scores of lucky lawyers, allowing them to merge a passion for law with inventiveness, computer savvy or business creativity.  

 

power plug  I think that one key way to help find the needed passion is to accept and embrace the relationship of trust that is at the core of the attorney-client relationship — to see and feel how special it really is to be a lawyer.  Another way to rekindle passion is to take Prof. Schiltz’s advice to his students and apply it to every day of practicing law:


[M]ake the commitment not just in their heads, but in their hearts, that although they are willing to work hard and they would like to make a comfortable living, they are not going to let money dominate their lives to the exclusion of all else. And they must not simply structure their lives around this negative; they should embrace a positive. They must believe in something, care about something, so that when the culture of greed presses in on them from all sides, there will be something inside of them pushing back. They must make the decision now that they will be the ones who define success for themselves — not their classmates, not law firms, not clients of law firms, not the National Law Journal. They will be happier, healthier and more ethical attorneys as a result.

As Judge Fuentes says, take the time to know yourself and then go out there and make your law practice reflect your values.  If those values don’t jibe with being a passionate, diligent, and honest lawyer, find another line of work — you, your clients and your family will be happier in the end.


  • If you’re a law student wondering what can be done with a law degree that best fits your personality or values, or a lawyer wondering about a change in career (within or without the legal profession), you can find some very useful information and exercises at the Decision Books website, and also on the Resources Page of Hindi Greenberg’s Lawyers in Transition website. 

February 23, 2004

Tennessee Loosens Its Discipline Gag Rule

Filed under: pre-06-2006 — David Giacalone @ 10:00 pm

The Tennessee Supreme Court has declared its own confidentiality rule in lawyer discipline matters an unconstitutional restriction on free speech.  In the matter of John Doe v. Jane Doe, the Court refused to hold in contempt the complaining attorney, who had sent copies of her complaint to two other attorneys, a judge and a law clerk. (AP/Tennessean, “Rules on complaints against lawyers lossened,” 02-21-04, via Law.com)

 

According to the article in the Tennessean:


Light Bulb  The court proposed a new rule to replace the one it declared unconstitutional. It will receive comment from interested parties before adopting the new rule permanently. The new rule keeps most of the records of the Board of Professional Responsibility closed. But it would loosen restrictions on what participants in such cases can say publicly.


In protecting the bar from frivolous complaints, the court adopted the reasoning of a federal district court in Florida, which said in a similar case:



”The idea that the suppression of truthful criticism of lawyers would somehow enhance or protect the reputation of the bar is not persuasive. To the contrary, continuing the prohibitory effect of the rule after a grievance against an attorney is found to be meritorious is far more likely to engender suspicion than foster confidence.”


ethicalEsq has discussed similar discipline gag rules at length, here.  HALT’s Report Card on the Tennessee Disicipline system can be found here.



Postscript (02-27-04):  In a press release dated 2-26-04, HALT applauded this step by the Tenn. Supreme Court, and promised to submit testimony in May on amendments to the Court’s confidentiality rule.

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